Hi, you're listening to the Australian Law Student Law Infor podcast, your go-to source
for legal insights in four minutes or less. I'm Nick Hodgkinson, and today we're talking
about our second intentional tort, assault. But first, our obligatory disclaimer, the
Law Infor is produced by law students for law students. It is not, nor is it intended
to constitute, legal advice. If you require legal assistance, you should contact your
local law society who can direct you appropriately. For more information on the Australian Law
Student, visit our website at theoslawstudent.com.
Okay, assault, it's our second intentional tort. It's not just about physical harm,
it involves perception and intent. Legally, assault can be said to occur when someone
intentionally needs another person to believe that they're on the brink of immediate harm,
and you should refer here to Brady and Schatzel. A quick note, the actual battery doesn't
need to occur in order to bring a legal action for assault. Think of it as a preemptive
strike. Acts and words can be sufficient for assault. But this can affect the quantum
your client might receive when a court orders damages. Damages are something that we will
discuss later in the series.
So what sets assault apart from the other intentional torts? Well, assault boils down
to the plaintiff having had a reasonable apprehension of imminent contact. Reasonableness will be
assessed as whether the defendant has had a clear ability to carry out the battery.
Assault is not about empty threats.
Consider this scenario. Aiming an apparently loaded rifle constituted assault, even when
the rifle turned out to be empty. Note the crux here is how a reasonable person would
interpret the situation, giving more weight to perception than the actual threat.
As with battery, we still need to establish positiveness, directness, and intention,
and you can refer to the first episode for more on that. With intention, per Hall and Fonseca,
we look at the defendant's intention to use force or to create that apprehension in the plaintiff.
Let's run over some hypotheticals that help test our knowledge of assault.
How immediate must a threat be for a plaintiff's apprehension to be reasonable?
If the defendant threatens to go home, fetch a gun, and return for a showdown,
is that sufficient? What if the defendant wasn't armed initially? What if the defendant's gun is
a water pistol, which they represent is a functioning and loaded gun to the plaintiff?
You should think about how different degrees of immediacy and reasonableness can alter the
strength of your argument.
And there we have it.
An episode of the Australian Law Student's Law In 4 podcast, a swift exploration of the
fascinating world of intentional torts. Join us next time on the Australian Law Student Law
In 4 podcast, where we discuss false imprisonment. As always, if you have any suggestions,
please email us at team at theoslawstudent.com or leave a comment in your review on Spotify
or Apple Podcasts.