No defense available to defendant Defence must be proved by the plaintiff – Marions Case Consent & Necessity, Self-Defense REFER TO DEFENCES Assault 1 What is Assault? Occurs when the defendant deliberately causes the plaintiff to apprehend immediate physical contact v Star City) i.e. is a battery but not an assault as the defendant is Hit in head from behind – not in fear or apprehension Plaintiff bears the onus of establishing on the balance of probabilities the first two requirements below. Defendant bears the onus of providing that they themselves lack the requisite state of mind. 2 How to prove assault? There was an apprehension of immediate physical contact with the body of the plaintiff Must have an by the defendant apprehension of physical contact Direct Link there must be a direct link between the threat of the – tortfeasor and the plaintiff and the plaintiff no longer feeling secure. Mere Words Are typically not enough (Thomas v National Union of – but can be if repeatedly threaten and abuse (Barton Mineworkers) v Armstrong) Lawful Force If force is permitted by law then not assault (Read v – Coker, Police v Greaves) Conditional Threat - Roza v Samuels A conditional threat can – be assault but you have to completely neutralise the threat otherwise – - Tuberville v Savage it were not assize-time I would take such ‘if language from you’ The defendant had a requisite state of mind; that is, their apprehension was reasonable Act must be intentional or negligent Not Intentional If the act is not intentional, it must be negligent to – amount to an assault. Truck driver seriously injured a cyclist Williams v Milotin – – wasn’t intentional. HCA ruled negligent. Decision - Not Negligent If the act is not negligent, then the act must have been – deliberate and wilful defendant meant to do it’ – ‘the
No defense available to defendant Defence must be proved by the plaintiff – Marions Case Consent & Necessity, Self-Defense REFER TO DEFENCES Assault 1 What is Assault? Occurs when the defendant deliberately causes the plaintiff to apprehend immediate physical contact v Star City) i.e. Hit in head from behind – is a battery but not an assault as the defendant is not in fear or apprehension Plaintiff bears the onus of establishing on the balance of probabilities the first two requirements below. Defendant bears the onus of providing that they themselves lack the requisite state of mind. 2 How to prove assault? There was an apprehension of immediate physical contact with the body of the plaintiff Must have an apprehension of physical contact by the defendant Direct Link – there must be a direct link between the threat of the tortfeasor and the plaintiff and the plaintiff no longer feeling secure. Mere Words – Are typically not enough (Thomas v National Union of Mineworkers) but can be if repeatedly threaten and abuse (Barton v Armstrong) Lawful Force – If force is permitted by law then not assault (Read v Coker, Police v Greaves) Conditional Threat - Roza v Samuels – A conditional threat can be assault but you have to completely neutralise the threat – otherwise Tuberville v Savage - ‘if it were not assize-time I would take such language from you’ The defendant had a requisite state of mind; that is, their apprehension was reasonable Act must be intentional or negligent Not Intentional – If the act is not intentional, it must be negligent to amount to an assault. Williams v Milotin – Truck driver seriously injured a cyclist – wasn’t intentional. Decision - HCA ruled negligent. Not Negligent – If the act is not negligent, then the act must have been deliberate and wilful – ‘the defendant meant to do it’