Does Assault Involve Actual Contact?

The Tort of Assault Requires Proof That a Person Was Fearful of Harmful Physical Contact. Actual Physical Contact Involves the Tort of Battery, Assault Is Often Confused As Battery.

Understanding the Tort of Assault Including the Elements That Distinguish the Tort of Assault From the Tort of Battery

Tortious Assault Involves the Threat or Fear of Imminent Harmful Contact Tortious assault is commonly confused with tortious battery.  The confusion appears to arise from similar misperception for assault in the criminal law context.  Tortious assault, like criminal assault, requires only a threat or fear of imminent harm by violence or undesired physical contact. It is tortious battery that involves actual violence or undesired physical contact.

The Law

Tortious assault was well explained within the case of Barker v. Barker, 2020 ONSC 3746, where it was said:

[1194]  Turning to the tort of assault, the courts across Canada have embraced a common definition, as expounded upon by the Saskatchewan Court of Appeal in McLean v McLean, 2019 SKCA 15, at paras 59-60:

Allen Linden and Bruce Feldthusen, in Canadian Tort Law, 10th ed (Toronto: LexisNexis, 2015) at 49, provide a definition of civil assault:

§2.42 Assault is the intentional creation of the apprehension of imminent harmful or offensive contact. The tort of assault furnishes protection for the interest in freedom from fear of being physically interfered with. Damages are recoverable by someone who is made apprehensive of immediate physical contact, even though that contact never actually occurs.

[1195]  To establish a claim for assault, the evidence must demonstrate that a Plaintiff had reasonable grounds to believe that they were in danger of violence from the tortfeasor: Bruce v Dyer, 1966 CanLII 191 (ON SC), [1966] 2 OR 705, at paras 10-12 (SC), aff’d 1967 CanLII 653 (ON CA), [1970] 1 OR 482 (CA).  As with battery, assault is a trespass to the person and is actionable without proof of quantifiable damages: see McLean, at para 63. In fact, even without a completed battery, if assault is established on the evidence it can potentially ground punitive damages as a means of signaling the need for public “condemnation and outrage”: Herman v Graves, 1998 ABQB 471, at para 52.

Interestingly, and unlike the tort of battery, as explained in Barker, the tort of assault arises without physical contact being made and requires only that a reasonable fear and apprehension of harmful physical contact exists; and accordingly, assault arises upon the fear of infliction of injury rather than an actual infliction of injury.

Claimable Damages

When raising a tort of assault claim, the Plaintiff may claim actual damages for expenses incurred for first aid, medical services, pharmaceutical costs, among other out-of-pocket expenses, if any, as well as claiming loss of income for time away from work, if any. Additionally, a Plaintiff may claim general damages for experiencing the emotions of anxiety, fear, humiliation, insult, lifestyle changes, among other issues.  In some circumstances, claiming punitive damages may also be warranted. As explained within the Barker case, damage awards, including awards for punitive damages, may arise even if the victim suffered little, if any, whereas, generally, civil law courts view damages awards as serving the purpose of denouncing aggressive behaviour that may actually lead to violent conduct.

Interestingly, in some circumstances, certain family members of an assault victim may also bring claims when adverse affects, such as lifestyle changes, even if temporary, occur as an indirect consequence of the harm suffered directly by the assault victim.

Summary Comment

Tortious assault involves conduct that inflicts a reasonable fear of imminent harm within another person.  If physical conduct actually does materialize, then the tortious assault has escalated into tortious battery.


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