Source 2

Extract adapted from Tort Law Text Cases and Materials. S. I. Strong and Liz Williams. Oxford University Press. 2008. Pp 408-10.

Analytically, assault can be cast in two different lights. Some assaults can be described
as an incomplete battery, brought about when the defendant tried but for some reason
failed to come into physical contact with the claimant. The other type of assault results
when the defendant never intended to touch the claimant but nevertheless created a
reasonable anticipation of physical contact in the mind of the claimant ….
To prove civil assault, the claimant must establish that the defendant had the same type
of mental state as in battery – meaning an intention to do the act that led to the assault ….
In assault, the claimant need only prove an intent to cause the apprehension of unlawful
physical contact ….

In the past the tort of assault could only exist when someone intended, but failed for
some reason to commit a battery .… Under the modern law, it is only necessary that the
act in question raise the reasonable apprehension of immediate physical contact.
Similarly, at one time words alone could not constitute assault. However, in the criminal
case of R v Ireland [1998] AC 147, the House of Lords stated that any words that raise
a reasonable apprehension of immediate (in other words, within a minute or two) battery
can constitute assault. In that case the defendant rang up the victim on the phone but said
nothing, only occasionally uttering some heavy breathing. Lord Steyn stated that ‘There
is no reason why something said should be incapable of causing an apprehension of
immediate personal violence’. In the case of the silent caller, the victim may be ‘assailed
by uncertainty about his intentions. Fear may dominate her emotions’. Even though the
case was brought in criminal court, rather than civil court, tort law would come to a similar
conclusion if faced with similar facts, since Lord Steyn’s view echoes the central premise
of civil assault, i.e. the infliction of the fear of unwelcome physical contact.
Traditionally, and under contemporary law, courts have held that words can negate an
act that would otherwise constitute assault ….

Immediacy is a critical part of the tort of assault. In Thomas v National Union of
Mineworkers (South Wales Area)
[1985] 2 All ER 1, the plaintiff was a miner who was
bussed to work during a strike held by the National Union of Mineworkers. As the bus
crossed the picket lines, the striking miners made threatening gestures, accompanied by
verbal threats. However, the court held that the strikers were not liable for assault, since
it was impossible for the striking miners to get to the plaintiff through the line of police
protection and the exterior of the bus itself. Therefore a person who stands on one side
of a brick wall and shouts, ‘I’m going to beat you to a pulp with my bare hands!’ does
not constitute much of a threat to people standing on the other side. An assault has not
occurred even if the person is an All England rugby player with a penchant for brawling
on and off the pitch. The brick wall means that there is no immediate threat of harm. If
the short tempered rugby player were standing on the far side of a chain link fence with
an elephant gun, claiming ‘I’m going to shoot you’, it is a different matter. In that case, an
assault likely exists, since the elephant rifle can shoot through the fence. On the other
hand, if the rugby player stands on his side of the chain link fence and says, ‘I’m going to
get my elephant gun and shoot you’, his actions do not constitute assault, since anyone
on the far side of the fence has a sufficient amount of time to escape before the rugby
player returns with his rifle ….

When considering whether an assault has occurred, one must look at the reasonableness
of the claimant’s reaction to the alleged assault. The test the courts use is objective,
rather than subjective, meaning that they will look at what a reasonable person would
think in the same circumstances rather than what this individual claimant thought.