Advice to Christine on Possible Action in Tort
Intentional torts are actions done deliberately to cause harm to the plaintiff. Examples include fraud, defamation etc. Negligence torts are caused when one fails to exercise care against perils known to present potential harm. Strict liability torts impose liability on a person who despite exercising appropriate care, thus not guilty of wrongdoing, caused unusually dangerous risks to society.
Christine has no possible action in tort against her two friends, Sophie and Adele. This is so since Sophie and Adele had no legal obligation to take proper care of Christine. However they exercised proper care that a reasonable person would do in that situation by trying to make Christine stop singing, though in vain. Furthermore, Sophie and Adele did not join Christine in singing, neither did they encourage her or cause her to sing. Moreover, neither did Sophie nor Adele cause any harm to Christine.
However, Christine may have a possible action in tort against Roy. In the Scenario, Roy assaulted Christine. The offer, threat or act to cause bodily harm is assault. Assault can, therefore, be defined as the act of causing impending battery. Battery as a legal term is when there is unlawful contact; more shall be discussed later on in this work. In the case of R V Burstow assault was held to be an act or omission of an act or recklessly causing another to fear imminent and unlawful violence. In Republic V Ireland [1998] 1AC 147, the court established that the essence of assault is the fear caused.
The issue that arises is whether the words uttered by Roy amounted to assault. This question was addressed by the court in the case of Barton V Armstrong [1969] 2 NSWLR 451. In this case, the court decided that in a telephone conversation words uttered can amount to assault. Furthermore, the court found that when the threat induces fear of physical violence there is assault, even when the plaintiff is uncertain of when the violence may be affected.
In addition, lack of power or intention to use violence by the defendant should not defeat the assault. If, on grounds that are reasonable, the complainant believes is in risk of violence; it is adequate to amount to assault. Therefore, Christine may have a possible action in tort against Trent. Trent threatened to use a box cutter to harm her, despite Christine being unable to see the box cutter.
Nevertheless, Trent committed an assault. When a person of reason or the complainant thinks that violence is intended but later established that no violence was intended, that would still suffice as assault. This was established in the case of Zanker v Vartzokas (1988) 34 A Crim R 11. In this case, a woman accepted an offer of a lift from the defendant. The accused uttered words to the effect that he was going with her to his friend’s house and that the friend would ‘fix her up’. He said those words while accelerating the vehicle. Out of fear, she jumped out of a speeding vehicle. The court held that, the accused had assaulted the woman since she was placed in fear of direct imminent violence, which went on to affect her as the vehicle was speeding towards the threatened house while imprisoned unlawfully and at the sole leniency of the accused.
Moreover, Roy and Trent having been far distances from Christine still their threats to her were considered assault. This was established in the case of R v Mostyn [2004] NSWCCA 97 at [71] where the court held that, even at a distance where contact is made impossible, a threat to strike that person may in itself establish an assault provided it instills a fright immediate violence in the victim.
Terry actions and behavior may allow Christine to have a possible action in tort against him. Terry uttered the words that everyone in the bus wanted to kill Christine; this implied him included. Thus, Terry threatened Christine by his words. He might also be inciting others in the bus against Christine. However, Terry went further and committed assault and battery when he pegged the rock at Christine despite the fact that she was not physically hurt. Battery is the physical contact that is unlawful or the actual infliction of force. In the case of DPP v JWH (unrep NSWSC, 17 Oct 1997) the court observed battery to be the definite infliction of unlawful physical force on others. It further noted that assault as a word had come to describe both offences.
In contrast, in the case of The Queen v Phillips (1971) 45 ALJR 467 at 472 Assault was described, by Barwick CJ, in common law sense as involving the apprehension of injury or the instilling of fear on others but it does not physical contact with the complainant of the assault. He further noted that where physical contact occurs it does not constitute an element of assault.
When Terry threatened Christine with words, his treat was imminent as Christine would suffer from fear of everyone in the bus and also those outside. By Terry pegging a rock at Christine, he was making unlawful contact by using unlawful force. Thus, Christine may have a possible action in tort against Terry for assault and battery.
Despite the fact that the pegged rock shattered the window and Christine suffered no physical harm, this may still be observed as assault. The broken glass sprayed over Christine head and arms presented a fear of being hurt by the shattered glass. In addition, Christine was in imminent threat of sustaining injuries from the broken glass. The actions of Terry were the cause of presenting Christine with fear and thought that she may be harmed. This goes to show causation.
Causation in tort law is the link between the action/behavior and the results. The action, by Terry, of pegging a rock at Christine, resulted in her being in immediate danger of harm from the shattered window. It also resulted in Christine fearing that she was in danger of injury.
Under the criminal law, Christine can complain against Roy, Trent and Terry. The three, Roy, Trent and Terry can be prosecuted by indictment, as stipulate under Section 61 of the Crimes Act 1900 which provides that anyone who assaults another person, and although not occasioning to actual bodily harm, that person who caused the assault shall be liable to imprisonment for two years”
In conclusion, Christine has a favorable possible action in tort against Roy, Trent and Terry. Against Roy and Terry, Christine can bring an action in tort against them of assault. The action in tort that can be brought against Terry is assault and battery. Moreover, charges against Roy, Trent and Terry can be preferred against them, under section 61 of the Crime Act 1900, and Christine as the complainant.
Bibliography
“Assault”. Judicial Commission of New South Wales. New South Wales Government. 5th May 2011. Web. 29th December 2012. <>
“Tort Law in Australia”. Lawyers.com.au. OMG and Fairfax Media. Web. 29th December 2012. < >
