Does Assault Involve Actual Contact?

Tortious Assault Involves a Fear of Violence or Fear of Other Undesired Physical Contact. Where Actual Violence or Undesired Physical Contact Occurs, Such Is Known As Battery Rather Than Assault.

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

Lawsuit Document Involving Tortious Assault 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

The tort of assault was explained well in the case of Barker v. Barker, 2020 ONSC 3746, wherein it was stated:

[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, as per the Barker case among many others, contrary to commonly held beliefs, the tort of assault occurs without a requirement of physical contact whereas tortious assault only requires that the victim, being the Plaintiff in the litigation, experienced a reasonable fear and apprehension of harmful physical contact. Simply said, a tortious assault occurs upon a fear of injury rather than upon an actual injury.

Claimable Damages

In a claim for tortious assault, a Plaintiff may claim actual damages for losses such as first aid expenses, medical costs, pharmaceuticals, among other out-of-pocket expenses, as well as lost income if time away from work occurred.  Additionally, a Plaintiff may claim general damages for pain, suffering, humiliation, anxiety including lingering fear, lifestyle impairment, among other issues.  In some circumstances, punitive damages may also be awarded.  As was also explained in Barker above, an award of damages, including punitive damages, for the tort of assault may arise even where the victim of an assault suffers little, if any, injury whereas the civil law courts generally view that a damages award serves the societal purpose of denouncing aggressive abusive behaviour that may lead to violence.

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

Assault involves conduct that raises a fear of imminent harm by physical conduct within another person.  If actual physical conduct occurs, then the assault escalates into battery.

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