Tortious Assault Flashcards
Understand Assault in relation to Torts (10 cards)
ASSAULT:
Includes both the threat → and the actual battery
An overt act → intentionally creating in another person → an apprehension of the imminent infliction of battery.
AN OVERT ACT → includes a threat of offensive contact or use of force.
NEED INTENTIONALITY → intent to threaten → not intent to harm → not intent to smack → THE INTENT IS THE ACT OF THREATENING
THREAT CAN BE VERBAL OR PHYSICAL.
For example → go up with fists up looking like you are about to punch them → It is an threat.
For example → “i am going to hit you” → that is a threat.
For example → point gun at person → just a joke → still a threat.
Looking at victims peace of mind → HAS IT BEEN DISTURBED?
REASONABLENESS STANDARD:
For example → someone calls them and says I am going to hit them → that is not the apprehension of imminent threat of battery.
For example → if someone says i have placed a bomb right where you are → that is an imminent threat of battery.
Imminent affiction → present ability to effect the threat.
If disabled person for example → it is not an imminent threat.
DO NOT NEED DAMAGE → ONCE THERE IS AN INTENTION TO MAKE THE ThREAT → You have a succesful cause of action
CONDITIONAL STANDARDS:
TUBERVILLE (1669) → If it wasnt assize time → I would attack you → Assize time, the judiciary was in town at the time → if they werent here I would attack you
Placing a hand on sword is threatening → the words diminished the threat → because it was assize time.
Travellign judges → from town to town.
The words dispelled the objective belief that it would be carried out.
ASSAULT PURPOSE:
Protect our state of mind → go around without fear of being attacked.
DIFFERENT BETWEEN TORTIOUS ASSAULT AND TORTIOUS BATTERY:
Assault → raise their hand → assault.
Battery → someone comes up behind you and punches you → battery
CRIMES ACT → Section 2 → definition of assault → Act of intentionally applying, or threatening by act or gesture to inflict → who has present ability.
STEPHEN V MYERS:
FACTS:
Myers is loud and disruptive and parish council meeting
There is head of chairman and Myers, and people inbetween him
Because he is loud he is ejected
Myers puts his hands and fists and proceeds to go to chairman
Myers was stopped
SAID:
Too far away because there were people stopping him
COURT SAID → proximate enough → and person would still fear the act.
IF person comes upto you with a mean look
If you drive a vehicle towards someone. → it is a threat.
READ V COCKER:
If you dont leave i will break your neck
Said no intention to assault the P if he left.
Given Tuberville → a reasonable person would think i dispelled with words
Court said no → it is a conditional threat → present ability, threat.
POLICE V GREAVES (HC):
FACTS:
Police officer going to house → came to door with knife → Said if you come a step closer you will be knifed
Conditional threat →
THE HIGH COURT → Said not assault → they had an alternative → could have walked away
CA → said it did amount to a threat.
Every threat has an alternative →
How is it different from Tuberville → the plaintiff would not think there was a present ability to affect the purpose. →
WOULD A REASONABLE PERSON → HAVE NECESSARY FEAR OF REASONABLE HARM
Fear is not an element. → for tortious assault. → victims state of mind does not matter → only has to be aware of threat → and apprehension of immediate threat of battery.
If Someone calls from US → then tortious assault is harder to prove compared to if they are close.
BATTERY AND ASSAULT QUESTIONS:
Someone has mental disorder → has mental breakdown → and batters their caregiver → IS it a tortious battery.
No → because if they are flailing around → They are not intentionally hitting the caregiver → so it becomes potentially negligence.
Did they intend to do the act → BATTERY.
CHILD SEXUAL ABUSE → grooming happens to kids → confused → may say their is consent →
That would be considered a battery → a child does not have the mental capacity to give consent → no legal capacity to understand the consequences.
THird → Have a bat, person x consents to be hit with bat → yes you can hit me → they think the bat is filled with foam → the bat is actually filled with rocks → i hit with bat filled with rocks → it injures the plaintiff.
Mistake of fact →
ACA –
Was there an intention to hit the plaintiff → not knowing there was rocks → is not a defence
Analagous → shot gun at plaintiffs leg, beleiving it was wooden → so generally mistake of fact is not a defence
SECOND ISSUE:
Consent or lawful justification → does the persons consent extend
Did not consent to get hit by rocks → likely liable to be liable for battery.
