Tort Law (2022): Intentional tort: Assault

An intentional tort is a category of torts that describes a civil wrong resulting from an intentional act on the part of the tortfeasor (alleged wrongdoer). The term negligence, on the other hand, pertains to a tort that simply results from the failure of the tortfeasor to take sufficient care in fulfilling a duty owed, while strict liability torts refers to situations where a party is liable for injuries no matter what precautions were taken.

 Why intentional torts are different.

As a matter of public policy, damages available for intentional torts tend to be broader and more generous than for negligent torts. To preserve individual well-being and overall social welfare, society generally wishes to deter its members from intentionally attacking each other. For example, in the United States, it is easier to get punitive damages (damages above and beyond compensatory damages) if one can prove that the tort was intentional. Similarly, in most Australian jurisdictions, intentional torts are not included in civil liability legislation, thus excluding the threshold of injury and damages payouts from various legislated limitations and caps. But it is harder to prove intentional torts because as with many felony crimes, one must prove subjective elements involving the content of the defendant's mind, and defendants do not always express their harmful intent out loud or in writing.

In common law, assault is the tort of acting intentionally, that is with either general or specific intent, causing the reasonable apprehension of an immediate harmful or offensive contact. Assault requires intent, it is considered an intentional tort, as opposed to a tort of negligence. Actual ability to carry out the apprehended contact is not necessary. 'The conduct forbidden by this tort is an act that threatens violence.'

In Criminal Law an assault is defined as an attempt to commit battery, requiring the specific intent to cause physical injury.

Comparison to battery.

As distinguished from battery, assault does not need to involve the 'unwanted physical contact; but is the anticipation of such contact'. It only needs intent to make or threaten contact and the resulting apprehension. At one point, the common law understanding of assault required more than words alone, it also required an overt act. This understanding has changed, while words alone cannot be construed as assault, words coinciding with actions or circumstances that would put a person in reasonable apprehension that a harm or offensive contact was likely to occur would. For example, an actor shouting "I'm going to kill you" while not moving but in complete shadow and with a knife in their hand could be interpreted as assault.

Additionally, Fear is not required for an assault to occur, only anticipation of subsequent battery. A battery can occur without a preceding assault, such as if a person is struck in the back of the head. An assault can be an attempted battery.

For example, 'If Henry points a gun at Thomas, he has committed an assault. It makes no difference whether the gun is loaded,' But 'Henry will only commit a battery if he shoots the gun and hits Thomas'.