2.2.2 Assault without battery1
Introduction and overview
1.
Members of the jury, in this trial, the plaintiff alleges that on [date], [he/she] was assaulted
by the defendant, as a result of which [he/she] suffered injury and loss.
2.
It is only if the plaintiff has proven to you, on the balance of probabilities, that [he/she] was
assaulted by the defendant that [he/she] is entitled to be compensated for that injury and
loss. If the plaintiff fails to prove to you that an assault occurred, then [his/her] case fails.
3.
I want now to turn to what the law defines as an assault and then go on to describe to you
the five elements the plaintiff must prove in order for you to be satisfied that an assault took
place.
4.
What is an assault? You would understand an assault to mean the actions of one person in
inflicting some form of violence upon another. A common example is to strike someone with
a clenched fist.
5.
But assault in the civil context, which is what this trial is concerned with, means the act of
intentionally creating in another person an apprehension of imminent, harmful or offensive
contact. It is not a requirement of assault that there be any contact at all.
6.
In order for you to better understand what an assault means, I should also describe to you
another term, that is battery. If the threat to cause harm is actually carried out, and force,
even minor force, is applied to a person’s body without justification or excuse, then that is
what the civil law calls battery. You will see the distinct difference. Assault is the conduct
creating an apprehension of contact. Battery is the actual contact.
7.
For the purposes of this trial, you must accept as a direction of law the meaning of assault
as I have described it.
8.
The plaintiff alleges that on [date], [he/she] was assaulted by the defendant. That is, on that
date, the defendant, by [his/her] conduct, intentionally created in the plaintiff an
apprehension of imminent harmful or offensive contact.
1
Note: This charge is a guide only, and may require modification to fit the facts of an
individual case
1
The elements of assault
9.
In order for the plaintiff to make good [his/her] onus of satisfying you [he/she] was
assaulted by the defendant you must be satisfied on the balance of probabilities that each of
the five elements necessary to rise to an assault, occurred.
10.
I shall firstly state each of these elements, and then attempt to explain them to you in some
detail. They are as follows:2
(1)
The defendant, by words or conduct, threatened to inflict harmful or offensive contact
upon the plaintiff and to do so immediately or imminently. 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.3
(2)
In making the threat which it is alleged constituted the assault, it was the subjective
intention of the defendant that the threat would create in the mind of the plaintiff an
apprehension that it will be carried out immediately or imminently.4 It is not necessary
to prove that the defendant in fact intended to carry out the threat.5
(3)
The threat must in fact have created in the mind of the plaintiff an apprehension that it
would be carried out immediately or imminently.6 It is not necessary for the plaintiff to
have feared the threat, in the sense of being frightened by it. It is enough if the
plaintiff apprehended that the threat will be carried out without his or her consent.7
(4)
The apprehension in the mind of the plaintiff must be reasonable when judged
objectively.8
(5)
That apprehension in the mind of the plaintiff must have resulted in injury, loss or
damage to the plaintiff.
11.
Let me now describe to you each of the elements in some detail.
2
See generally Connex Trains v Chetcuti [2008] VSCA 274 at [16].
3
Rixon v Star City Pty Ltd (2001) 53 NSWLR 98 at 112-113 (in that case, the threat to 'catch ' and
detain the plaintiff, by holding him, was a sufficient threat to satisfy this element of the tort.
4
Rozsa v Samuels [1969] SASR 205, 207; Rixon v Star City Pty Ltd (supra).
5
Rixon v Star City Pty Ltd (supra).
6
ibid.
7
Brady v Schatzel; Ex parte Brady [1911] St R Qd 206, 208.
8
Barton v Armstrong [1969] 2 NSWR 451, 455.
2
The first element
12.
The first element is that there be a threat by the defendant, by words or conduct, to inflict
harmful or offensive contact upon the plaintiff immediately or imminently. It is a threat to
make contact to the plaintiff without [his/her] consent or without legal justification. In order
for this element to be fulfilled, the plaintiff must prove, on the balance of probabilities, that a
threat was made, be it by words or conduct or a combination of the two, that threat must be
to inflict some harmful or offensive contact upon the plaintiff, and that the threat was of
immediate or imminent contact. Not all threatening acts constitute an assault. There must be
a means for that threat to be carried out. For example, to shake one’s fist immediately in the
face of another person may well be an assault; however, to shake it at a person 100 metres
away may well not. The defendant must have the present ability to carry out the threat,
although it is not essential there be close physical proximity in order to do so. There may be
an assault if the victim is within apparent range. For example, the pointing of a gun some
distance from a person may well constitute an assault as the gun has the capacity to inflict
injury over a considerable distance. That would be unlikely to be the case however, if
someone threatened to punch someone who was 100 metres away. This element will require
you to exercise your commonsense. Proximity is a matter to be taken into account, but not
an essential element.
13.
A verbal threat of future force is not an assault because it is not a threat of immediate or
imminent use of force. The threat must suggest that force is to be immediately or
imminently carried out. A verbal threat of immediate force, understood by the plaintiff to be
imminent or immediate, meets the element.
14.
A conditional threat may constitute an assault if the condition imposed is one which the
person making the threat has no right to impose. For example, if, in close proximity a person
said to another: 'If you move one inch I’ll hit you', that may well constitute an assault. The
question of immediacy or immanency is one of degree which you should consider applying
your commonsense and experience of life.
15.
The evidence relied upon by the plaintiff to satisfy this first element of assault is as follows.

[set out relevant evidence].
The second element
16.
The second element is that there must be a subjective intention on the part of the defendant
that the threat will create in the mind of the plaintiff an apprehension that it will be carried
out immediately or imminently. It is not necessary for this element to be satisfied that the
defendant in fact intended to carry out the threat. It is necessary for this element to be
3
satisfied that the plaintiff must prove the defendant intended that the plaintiff believed the
threat would be carried out.
17.
Let me give you an example. If a person placed an unloaded revolver and aimed it at the
head of another and threatened to shoot him, it would be reasonable to accept that the
person at whom the gun was pointed would assume the threat would be carried out. It
would be irrelevant that that assailant, the person holding the gun, knew it did not have any
bullets and that the threat would be incapable of being carried out. It is sufficient for the
assailant to intend their victim to believe that the threat will be carried out. It is thus
necessary to examine the mind of the defendant at the time of the alleged assault. That may
be able to be done by considering the surrounding circumstances, including what was said
and done by the defendant. The intention required is subjective, rather than objective. That
means it is not necessarily what another person would have intended, but rather whether
the defendant [himself/herself] intended the plaintiff to apprehend that the threat would be
carried out. In this context, 'apprehension ' means to anticipate with fear that the threat will
be carried out. Again, there is the requirement that the apprehension for the threat will be
carried out immediately or imminently.
18.
The threat may be constituted by words alone, and without conduct, providing those words
caused the direct apprehension that the threat will be carried out, and the defendant
intended that the plaintiff would believe so.
19.
The evidence relied upon by the plaintiff as constituting this element is as follows.

[set out relevant evidence].
The third element
20.
The third element of which the plaintiff must satisfy you is that the threat in fact created in
the mind of the plaintiff an apprehension that the threat would be carried out immediately or
imminently. It is enough if the plaintiff apprehends that the threat will be carried out without
his or her consent.
21.
This element also deals with a state of mind, this time of the plaintiff. As with the defendant,
the state of mind of a person can be gauged by what they said or did at the relevant time
and the manner in which they reacted. You have also heard the evidence of the plaintiff in
the course of this trial as to what [he/she] says [his/her] state of mind was at the time. The
apprehension referred to in this element again is not necessarily that the plaintiff be
frightened, but rather that [he/she] apprehended that the threat would be imminently or
immediately carried out. A person may not be frightened by a threat, but nonetheless
apprehend that it was about to be carried out.
4
22.
The evidence relied upon by the plaintiff as to the proof of this element is as follows.

[set out relevant evidence].
The fourth element
23.
The fourth element is that that the apprehension in the mind of the plaintiff must be
objectively reasonable. This element involves objective analysis, whereas the previous
element involves the subjective state of mind of the plaintiff. A subjective state of mind
means what a person actually believed. This element is different, and concerns the
reasonableness of the belief. In order for the plaintiff to succeed, [his/her] state of mind as
to the apprehension must have been reasonable. It is a matter for you, the jury, using your
commonsense and experience of life, to determine whether the plaintiff’s apprehension was
reasonable in the circumstances. That does not mean you should substitute your own
personal opinion or ask yourself whether you would have apprehended or reacted in a
certain way. It is rather a consideration whether, in all the circumstances existing at the
time, it was reasonable for the plaintiff to apprehend that the threat would be immediately
or imminently carried out.
24.
Let me give you an example of what I mean. You will recall one of the farcical sketches from
one of the Monty Python films where, in the course of a sword fight, one assailant had both
arms and legs severed. Nonetheless, he demanded that the other come close so that he
could bite him. While the example is ludicrous, you will gain the general understanding of
what I mean.
25.
The plaintiff says, taking into account all of the circumstances, [his/her] belief of the
imminent threat was reasonable.
The fifth element
26.
Finally, the plaintiff’s apprehension must have caused injury or damage to the plaintiff. That
means that the plaintiff suffered an identifiable injury in the nature of a [identify and
describe the injury]. I will deal with this element more fully when I go to discuss damages.
However, even if you were to accept that all of the elements of the assault had been made
out, that is an intentional threat was made by the defendant, by words or conduct, to inflict
harmful or offensive contact upon the plaintiff immediately or imminently, but were not
satisfied that any injury or loss arose, then the plaintiff’s case would fail. The loss or injury
alleged by the plaintiff is as follows:

[set out relevant evidence].
5
27.
Let me remind you that the plaintiff must prove all of these elements to you on the balance
of probabilities. If even one element should fail, then you must find for the defendant, and
the answer to Question [1] will be 'no'.
Relevant considerations
28.
When you come to consider all of these elements, as stated, you should use your
commonsense and experience of life. You should take into account the following:

The events leading up to the incident

Where it took place

The physical proximity between the participants

The words that were actually used

The tone of the words

The body language

Whether there was any anger displayed

The level of aggression involved

Any accompanying gestures

The physical demeanour of the defendant

Any motive he may have had for making the threat

The authority that each of the participants respectively held

The respective physical sizes of the parties

What each knew of the other in the lead-up to the incident

The likely state of affairs between them

Whether the defendant demonstrated that he wanted to be taken seriously and had
the apparent means of carrying out the threat

Any other matters that you deem relevant when considering the elements of the
offence.
If the alleged assault was provoked, or the defendant may have acted by way of moral
justification, insert the following shaded section
29.
Let me now say something further about the concept of assault, in particular, when you
consider the conduct both of the plaintiff and the defendant. It is no defence to a claim of
6
assault that:
30.

the assault was provoked by the conduct or words of the victim;

the plaintiff was guilty of contributory negligence; or

the defendant acted by way of moral justification.
The fact that the defendant alleges that the plaintiff provoked [him/her] into the assault is no
defence. In that regard you will recall the defendant claims that [he/she] was provoked into
action by the following conduct of the plaintiff:

31.
[set out relevant evidence].
Provocation in itself is no defence to a claim for assault. You should disregard any such
argument.
32.
Likewise, you may take the view there was some moral justification for the defendant acting
in the manner that [he/she] did. Whatever view you take, nonetheless, moral justification is
no basis for a defence, and you should disregard it. That is not to say that you should not
take into account all of the conduct of the parties at the time, but you should analyse that
conduct when considering the elements of the offence as I have taken you through.
33.
Further, you may have heard the concept of contributory negligence. In a civil action, if a
plaintiff alleges negligence against a defendant as a result of which [he/she] suffered injury,
the defendant may allege contributory negligence. That means that the injured person failed
to take reasonable and proper steps for their own safety in the circumstances. Again, that
concept does not constitute a defence for an act of assault, and has no relevance in this
proceeding.
Last updated: 14 April 2014
7