Tort law; assault; elements of liability for assault
Facts: Chetcuti, a panel beater, went to a railway station after finishing work, to catch a train home. While at the station, Chetcuti was approached by two officers employed by Connex. Chetcuti did not have a ticket. A confrontation developed, in the course of which Chetcuti behaved in various ways contrary to the provisions of the Transport Act 1983 (Vic). In particular, he spat in the face of one of the Connex officers and then ran away. The officers gave chase. While running away, Chetcuti fell and fractured his wrist. When apprehended by the officers, Chetcuti struggled to escape, possibly causing further injuries to his wrist. The injuries were serious and permanent. Chetcuti sued Connex for assault and battery. He claimed to have run away because he feared the officers would attack him physically. The trial judge found Connex liable for an assault.
Issue: Had the trial judge properly understood and applied the elements of liability for assault?
Decision: The trial judge had misunderstood and not properly applied the relevant law. A retrial was necessary.
Reason: The appeal court set out the elements of liability for assault (at 16):
(1) A threat by the defendant, by words or conduct, to inflict harmful or offensive contact upon the plaintiff forthwith. It is enough if the threat is to make contact to the body of the plaintiff without the plaintiff’s consent or without any legal justification.
(2) A subjective intention on the part of the defendant that the threat will create in the mind of the plaintiff an apprehension that the threat will be carried out forthwith. It is not necessary to prove that the defendant in fact intends to carry out the threat.
(3) The threat must in fact create in the mind of the plaintiff an apprehension that the threat will be carried out forthwith. It is not necessary for the plaintiff to fear the threat, in the sense of being frightened by it. It is enough if the plaintiff apprehends that the threat will be carried out without his or her consent.
(4) The apprehension in the mind of the plaintiff must be objectively reasonable.
(5) The plaintiff’s reasonable apprehension caused injury, loss or damage to the plaintiff. This requirement attracts the ordinary common law concept of causation by reference to commonsense and, where appropriate, consideration of normative factors such as value judgments and policy considerations.
In the present case, the trial judge had failed to establish whether the defendant had a subjective intent to create the apprehension of an imminent threat; nor whether the plaintiff’s apprehension of a threat was objectively reasonable.