Intentional torts - Assault

Learning Outcomes

After reading this article, you will be able to identify and explain the elements required to establish assault as an intentional tort, distinguish assault from related torts, understand the role of apprehension and immediacy, and apply common defenses. You will be equipped to answer MBE-style questions on assault with confidence.

MBE Syllabus

For MBE, you are required to understand the law of intentional torts, including assault. This article covers the following syllabus points relevant for your revision:

• Recognize the elements required to prove assault as an intentional tort.
• Distinguish assault from battery and other intentional torts.
• Explain the significance of reasonable apprehension and immediacy.
• Identify common defenses to assault, including consent and self-defense.
• Apply these principles to fact patterns in MBE-style questions.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Which of the following is NOT required to establish assault?
   1. Intent
   2. Reasonable apprehension of imminent harmful or offensive contact
   3. Actual physical contact
   4. Causation
2. A defendant points an unloaded gun at a plaintiff, who reasonably believes it is loaded. Is this assault?
   1. Yes, because the plaintiff’s apprehension is reasonable.
   2. No, because the gun is unloaded.
   3. No, because there is no intent.
   4. Yes, but only if the defendant shouts a threat.
3. Which defense is LEAST likely to succeed in an action for assault?
   1. Consent
   2. Self-defense
   3. Mistake as to the plaintiff’s identity
   4. Defense of property

Introduction

Assault is a core intentional tort tested on the MBE. It focuses on the defendant’s act causing the claimant to reasonably apprehend imminent harmful or offensive contact. Unlike battery, assault does not require physical contact. Understanding the precise elements and common pitfalls is essential for exam success.

Elements of Assault

To prove assault, the claimant must establish:

1. An act by the defendant creating a reasonable apprehension in the claimant of imminent harmful or offensive contact.
2. Intent by the defendant to cause such apprehension or to cause contact.
3. Causation – the defendant’s act must cause the apprehension.

Key Term: Assault The intentional tort where the defendant’s act causes the claimant to reasonably apprehend imminent harmful or offensive contact, even if no contact occurs.

Reasonable Apprehension

The claimant must actually anticipate imminent contact, and this anticipation must be reasonable. The defendant does not need to have the actual ability to carry out the threat, as long as the claimant’s apprehension is reasonable under the circumstances.

Key Term: Reasonable Apprehension The claimant’s expectation of imminent harmful or offensive contact, judged by whether a reasonable person in the claimant’s position would anticipate such contact.

Imminence

The threatened contact must be imminent. Threats of future harm or conditional threats (e.g., “If you come back tomorrow, I’ll hit you”) are not sufficient for assault.

Key Term: Imminence The requirement that the threatened harmful or offensive contact must be expected to occur without significant delay.

Intent

The defendant must act with intent to cause apprehension of contact or with intent to cause contact itself. The doctrine of transferred intent applies: if the defendant intends assault or battery against one person but affects another, intent is satisfied.

Key Term: Transferred Intent The principle that intent to commit one intentional tort (e.g., battery) or intent to affect one person can satisfy the intent element for assault against another person.

Causation

The defendant’s act must be the direct or indirect cause of the claimant’s apprehension. Words alone are generally insufficient unless accompanied by an overt act.

Distinguishing Assault from Battery

Assault is about apprehension of contact; battery is about actual contact. Assault can occur without any touching, while battery requires physical contact.

Key Term: Battery The intentional tort involving harmful or offensive physical contact with the claimant’s person, caused by the defendant’s act and intent.

Defenses to Assault

Common defenses include:

• Consent: The claimant agreed to the conduct.
• Self-defense: The defendant reasonably believed force was necessary to protect against imminent harm.
• Defense of others: The defendant reasonably believed intervention was necessary to protect another.
• Defense of property: Limited to reasonable force; deadly force is not permitted solely to protect property.

Worked Example 1.1

A, angry at B, raises a fist and moves quickly towards B, stopping just short of contact. B believes A is about to hit him and recoils in fear. Is A liable for assault?

Answer: Yes. A’s act caused B to reasonably apprehend imminent harmful contact, satisfying all elements of assault.

Worked Example 1.2

C points a toy gun at D, who believes it is real and fears being shot. C knows the gun is fake. Is C liable for assault?

Answer: Yes. D’s apprehension is reasonable under the circumstances, and C’s intent is satisfied even though the gun is not real.

Exam Warning

On the MBE, physical contact is not required for assault. Do not confuse assault with battery. Look for reasonable apprehension and imminence.

Revision Tip

If the claimant is unaware of the defendant’s act at the time, there is no assault. Apprehension must be contemporaneous with the act.

Key Point Checklist

This article has covered the following key knowledge points:

• Assault is the intentional tort of causing reasonable apprehension of imminent harmful or offensive contact.
• No physical contact is required for assault (unlike battery).
• The claimant’s apprehension must be reasonable and of imminent contact.
• Intent can be satisfied by transferred intent.
• Words alone are generally insufficient unless accompanied by an act.
• Defenses include consent, self-defense, defense of others, and limited defense of property.

Key Terms and Concepts

• Assault
• Reasonable Apprehension
• Imminence
• Transferred Intent
• Battery