o Stephens v Myer (1830) 172 ER 735
▪ The facts: The defendant was subject to the ejection of the Parish, but he did not
take it well. He took his fists and made a violent gesture at the plaintiff and uttered
threatening words. He was prevented from reaching the defendant by multiple
people who were in between them.
▪ The claim: The defendant brought proceedings for assault. The jury found in favour
of the plaintiff. The case was appealed.
▪ In the appellate court:
In all cases, there needed to be a real belief of the threat being carried into
Found that it was actionable for assault
Found that there was reasonable apprehension that arose in the mind of
the plaintiff. This was enough to give rise to assault
Damages: 1 shilling. The law draws a distinction between elements of
liability and the remedy. It is a question of how serious the wrong is.
▪ Mere words alone cannot constitute assault.
When are there mere words
The plaintiff had spoken a threat of violence, as well as clenching his fists
and moving towards the person and giving an indication he was going to
hit the person
The facts here indicate something beyond mere words
o Hall v Fonceca  WAR 309:
▪ The facts: There was a dispute between two people involved in the board of the
Hockey club about club's finances. The defendant punches the plaintiff in the face.
The plaintiff falls onto the floor and hits his head and suffers a haemorrhage.
▪ The claim: The plaintiff brings criminal prosecution against defendant alleging
battery and assault. The defendant raises point of self defence, but this depends
upon whether plaintiff committed an assault in the first place (to cause
apprehension in the defendant).
▪ The question: Was the plaintiff, at the time the plaintiff was hit, himself committing
an assault? The question turns upon whether there was a reasonable apprehension
about the imminent application of force on the part of the defendant
▪ Full Court of Supreme Court of WA - in order for plaintiff to be liable of assault:
Assault in an intentional tort. Hence, the person needed to create
apprehension in the mind of the defendant
Do not actually have to intend to use force against the person himself, but
the creation of the threat of the harm is the wrong
▪ Hall v Fonceca makes it clear that there is a requirement of intention on the part of
defendant either on application of force or intention of the force
o ACN 087 528 774 Pty Ltd (formerly Connex Trains Melbourne Pty Ltd) v Chetcuti (2008) 21 VR
Where the mental element in assault is an intention on the part of the defendant to cause the
plaintiff to apprehend the imminent application of unlawful force, the requisite intention is
subjective, not objective. Further, the plaintiffs apprehension of the imminent application of
unlawful force must be a reasonable one.
▪ The facts: A man was conducting himself in an offensive manner on the train.
Security guards on the train stopped him. He spat on the security guards. The
guards pursuited him, though while the man was running away, he fell over and
injured himself. )t was the plaintiffs contention that he had run away from the
defendants officers because he expected and feared they would bash him as
retaliation for the act of spitting.
▪ The claim: The man brought proceeds against Connex Trains for the tort of assault
▪ The question: Was there a subjective intention of part of the railway officers to
apply imminent force to the person. Australian law does not recognise negligent
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