Revise Assault for Cambridge 9084 (4.3.1)

In the law of tort, assault is defined as an act of the defendant which causes the claimant to reasonably apprehend the imminent infliction of unlawful force. Unlike its common usage, which often implies physical contact, a tortious assault is about creating a state of apprehension. The focus is on the claimant's state of mind. For an assault to be established, there is no need for the defendant to have actually touched the claimant; that would constitute the separate tort of battery. The key elements are a positive act by the defendant, a reasonable apprehension of immediate and unlawful force by the claimant, and the necessary intention on the part of the defendant. This tort protects an individual's right to be free from the fear of unwanted physical contact.

The actus reus of assault is a positive act or conduct by the defendant. A mere omission is generally insufficient. This act can be a physical gesture, such as raising a fist or pointing a weapon, as in Stephen v Myers (1830) where an assault was committed by advancing with a clenched fist, even though the defendant was stopped by a third party before he could strike. Crucially, words alone can also constitute an assault, as established in R v Ireland; Burstow (1998), where silent telephone calls were held to be capable of being an assault because they caused the victim to apprehend imminent unlawful force. The test is whether the defendant's actions, viewed in their full context, were sufficient to cause the claimant to apprehend that force was about to be used against them. The apprehension must be reasonable; a claimant who is unusually timid will not be able to claim if a reasonable person would not have been alarmed.

For an assault to be actionable, the defendant must have the required state of mind (mens rea). This means the defendant must have intended to cause the claimant to apprehend the infliction of immediate unlawful force, or have been subjectively reckless as to whether such apprehension would be caused. Subjective recklessness means the defendant foresaw the risk that the claimant would apprehend force and went ahead with their actions anyway. As established in cases like Letang v Cooper (1965) for trespass to the person torts, negligence is not sufficient. If the defendant accidentally causes someone to apprehend force without intending to or foreseeing the risk, there is no assault. The focus is on the defendant's deliberate or reckless conduct, not accidental or careless acts.

The apprehension of force must be of 'immediate' or 'imminent' force. This does not mean instantaneous, but rather that the force is about to happen. In R v Ireland, the House of Lords held that repeated silent calls could create an apprehension of imminent violence, as the victim may fear the caller's arrival at their door at any moment. A threat of future violence is generally not an assault. In Thomas v National Union of Mineworkers (1986), working miners on a bus were not assaulted by striking miners making threats because they were protected by police and the bus was moving, meaning there was no prospect of immediate battery. However, words can also negate a potential assault. In Tuberville v Savage (1669), the defendant placed his hand on his sword and said, "If it were not assize-time, I would not take such language." This was not an assault because the words indicated he would not use force at that moment, thus negating the immediacy.

The primary remedy for assault is damages, intended to compensate the claimant for the infringement of their right to be free from fear of battery. If no actual harm is suffered, damages may be nominal. However, if the assault causes distress or psychiatric injury (e.g., anxiety, PTSD), the court will award general damages for pain, suffering, and loss of amenity. The principles from Wilkinson v Downton (1897) and R v Ireland (1998) confirm that recovery for psychiatric harm is possible. Special damages can also be claimed for quantifiable financial losses, such as medical expenses or loss of earnings. In some cases, an injunction may be granted to prohibit the defendant from repeating the assaultive behaviour.

Several defences can negate liability for assault. Consent is a key defence, particularly in contexts like contact sports or medical procedures, where participants are deemed to consent to acts that would otherwise be a battery (and by extension, the apprehension of it). The consent must be genuine and the act must not exceed the scope of the consent. Self-defence is another complete defence, provided the force apprehended by the defendant was reasonable and the action taken in response was proportionate. Finally, lawful authority, such as a police officer making a lawful arrest, can justify actions that would otherwise constitute an assault.