Assault
Assault An assault is a voluntary and positive act by the defendant that directly, and intentionally or negligently, causes the plaintiff to reasonably apprehend imminent physical contact without lawful excuse. -
The difference of assault is the fact that it requires a reasonable expectation of imminent physical contact
Elements of assault -
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An act by the defendant (the threat) o Voluntary o Positive Directness Fault o Intentional o Negligent Reasonable apprehension by the plaintiff of imminent contact with his/her person (NEW ELEMENT FROM BATTERY) o Ie. The expectation that imminent contact will happen o Whether or not the assault instils fear in the plaintiff is irrelevant o The apprehension has to be a reasonable one – what a reasonable person in the plaintiff’s position would have thought
An act by the defendant a. Acts alone b. Words alone i. It was once held that words alone could not create grounds for assault words alone MAY now be considered grounds for assault, as long as it creates an expectation of imminent contact (Ireland) c. Words and acts (Tuberville v Savage) i. Eg. if someone is merely walking towards you, this would very unlikely be an assault. However, if they threated to punch you when they reached this, assault would likely be made out. ii. But conversely, in Tuberville v Savage 1. The plaintiff and the defendant were having a furious argument 2. The defendant put his hand on the hilt of his sword. If this was an act in and of itself, it would be assault. However, he said that ‘if it were not assize time, I would draw my sword’ 3. This was therefore no longer assault d. Conditional threats – a threat that exists where the defendant threatens to make physical contact with the plaintiff if a certain condition is satisfied i. Court has held that, if the physical contact is illegal (ie. A battery), then the conditional threat is illegal ii. Read v Coker 1. ‘unless Read left the shop, Coker would break Read’s neck’
2. What was threatened was illegal – even though it was conditional – and therefore constituted an assault iii. Police v Graves 1. Police entered house of Graves, only to meet Graves standing at the door with a knife threating to stab the officer if he moved forward iv. Rosza v Samuels 1. Rosza was a taxi driver who placed his taxi at the front of the queue instead of taking his spot at the back 2. Drummond was originally at the front of the queue and became unhappy 3. Drummond threatened Rosza to punch him in the head if he didn’t move (an illegal act) 4. Rosza then pulled out a knife and said that if Drummond punched him in the head, Rosza would cut him to pieces 5. Court held; as the act of the defendant must have been illegal by proceeding with the threat, this had to be analysed. If Rosza was punched in the head, and then ‘cut Drummond to pieces’, this would have been disproportionate self-defence. Therefore, threatening Drummond was still assault v. If the physical contact threatened is in response to an act that is illegal in itself, it can still be deemed assault. Voluntary and positive act -
action must be deliberate, voluntary & positive o Cannot be passive and ‘just happen’ (Inness v Wylie) o Consciously and by his own will
Directness -
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2 different approaches as directness in assault is not as clear as battery e. The threat must directly cause the plaintiff to apprehend imminent contact with his/her person (ie without intervening cause) i. No clear test for directness with respect to assault f. ALTERNATIVELY, to work out whether directness is satisfied, if the assault becomes battery then at that point, whether directness would be an issue (apply both for full marks) Reasonable apprehension by the plaintiff of imminent contact with his/her person: o Apprehension must relate to the imminent contact, be reasonable (objective test), be imminent and the requirement of immediacy (Zankar v Vartzokas), plaintiff must be aware of the threat cf Battery o Imminence may be caused by a number of factors; eg. Shaking fist, being right next to one another o Zanker v Vartzokas Zankar accepted a lift from a stranger in a van, who offered her money for sexual favours Vartzokas said to her that he would take her to his mate’s place who would ‘really fix her up’
The difference of assault is the fact that it requires a reasonable expectation of imminent physical contact
Elements of assault -
-
-
An act by the defendant (the threat) o Voluntary o Positive Directness Fault o Intentional o Negligent Reasonable apprehension by the plaintiff of imminent contact with his/her person (NEW ELEMENT FROM BATTERY) o Ie. The expectation that imminent contact will happen o Whether or not the assault instils fear in the plaintiff is irrelevant o The apprehension has to be a reasonable one – what a reasonable person in the plaintiff’s position would have thought
An act by the defendant a. Acts alone b. Words alone i. It was once held that words alone could not create grounds for assault words alone MAY now be considered grounds for assault, as long as it creates an expectation of imminent contact (Ireland) c. Words and acts (Tuberville v Savage) i. Eg. if someone is merely walking towards you, this would very unlikely be an assault. However, if they threated to punch you when they reached this, assault would likely be made out. ii. But conversely, in Tuberville v Savage 1. The plaintiff and the defendant were having a furious argument 2. The defendant put his hand on the hilt of his sword. If this was an act in and of itself, it would be assault. However, he said that ‘if it were not assize time, I would draw my sword’ 3. This was therefore no longer assault d. Conditional threats – a threat that exists where the defendant threatens to make physical contact with the plaintiff if a certain condition is satisfied i. Court has held that, if the physical contact is illegal (ie. A battery), then the conditional threat is illegal ii. Read v Coker 1. ‘unless Read left the shop, Coker would break Read’s neck’
2. What was threatened was illegal – even though it was conditional – and therefore constituted an assault iii. Police v Graves 1. Police entered house of Graves, only to meet Graves standing at the door with a knife threating to stab the officer if he moved forward iv. Rosza v Samuels 1. Rosza was a taxi driver who placed his taxi at the front of the queue instead of taking his spot at the back 2. Drummond was originally at the front of the queue and became unhappy 3. Drummond threatened Rosza to punch him in the head if he didn’t move (an illegal act) 4. Rosza then pulled out a knife and said that if Drummond punched him in the head, Rosza would cut him to pieces 5. Court held; as the act of the defendant must have been illegal by proceeding with the threat, this had to be analysed. If Rosza was punched in the head, and then ‘cut Drummond to pieces’, this would have been disproportionate self-defence. Therefore, threatening Drummond was still assault v. If the physical contact threatened is in response to an act that is illegal in itself, it can still be deemed assault. Voluntary and positive act -
action must be deliberate, voluntary & positive o Cannot be passive and ‘just happen’ (Inness v Wylie) o Consciously and by his own will
Directness -
-
2 different approaches as directness in assault is not as clear as battery e. The threat must directly cause the plaintiff to apprehend imminent contact with his/her person (ie without intervening cause) i. No clear test for directness with respect to assault f. ALTERNATIVELY, to work out whether directness is satisfied, if the assault becomes battery then at that point, whether directness would be an issue (apply both for full marks) Reasonable apprehension by the plaintiff of imminent contact with his/her person: o Apprehension must relate to the imminent contact, be reasonable (objective test), be imminent and the requirement of immediacy (Zankar v Vartzokas), plaintiff must be aware of the threat cf Battery o Imminence may be caused by a number of factors; eg. Shaking fist, being right next to one another o Zanker v Vartzokas Zankar accepted a lift from a stranger in a van, who offered her money for sexual favours Vartzokas said to her that he would take her to his mate’s place who would ‘really fix her up’
