Tobias' threatening attitude towards Edward requires a consideration of what constitutes an assault. An assault is defined as an act which intentionally causes another person to apprehend the infliction of immediate, unlawful force on his person. 1 When Tobias phoned Edward, and utter the words "I am going to kill you and ensure that you never play ruby again". These words alone may be no more than mere abuse, and the content of his words are insuffient to amount to a threat. If words are to account to assault, the Burden of proof is on Edward to show that he reasonable appended harm.
If the words themselves do amount to a threat, there are no legal authority that words alone could constitute an assault. 2 However this may now be challenged in the House of Lords case in R v Ireland. 3 It was accepted that a silent phone call could amount to an assault. Accordingly, it is now clear that the use of words alone may be an assault taking into account all the surrounding circumstances. If Tobias words are capable of amounting to an assault, there remain the issue that there cannot be an assault unless the threat is immediate.
The fact that Tobias utter these words to Edward over the phone rather than in person or face to face, a reasonable person would hold that, Tobias is not in a position to inflict immediate and direct harm on Edward. Thus, Edward wasn't under immediate threat and had nothing to fear about. This was the issue in Thomas v National union of miners,4 striking miners, who hurled insult at working miners who had been transported into work in vehicle, were not held liable for assault, because the vehicle had been protected by a police cordon.
The fact that Edward and Tobias work together and hence Edward would have to see Tobias at work, he might have apprehend the immediate infliction of battery. Nevertheless this argument seems very weak due to the barrier between Edward and Tobias, more likely that the "threat" isn't immediate. Edward can except and reconcile the situation. When Tobias slapped Will on the back while he was running down the stairs, it was unlikely that Will was aware of this. Therefore the possibility of this constituting to an assult is slim, the element of apprehsion has not been satisfied.
It is only an assult if Will was aware of Tobias approaching him. Tobias could be liable in battery. Battery is defined as the direct and intentional application of physical force to another without their consent. 5 The tort of battery applies to any form of bodily contact. The law was clearly stated in Collins v Wilcock6 that the merest touching would suffie this is because, the law could not be expected to distinguish between varying degrees of force. Goff LJ made the point that this general principle was designed to protect the value that the law placed in the liberty of the subject and the inviolability of human body.
He indicated that the broad principle was a starting point and there was a general exception to it cover all touching which were generally acceptable as part and parcel of everyday life. Examples of such contact include: tapping someone on the shoulder to gain attention. In the scenario, there is clear evidence of contact by Tobias, which goes well beyond anything that could be regarded as acceptable in everyday life, this rendering any detailed analysis of the possible meaning of "hostility". 7
Intention must be voluntary. Tobias wouldn't have committed battery if a third party grasps his arm and pulls it to hit Edward on the back. However the fact that Tobias rationally decided to slap Edward more or less is likely to constitute a battery. Battery requires the intention to touch, and, in the absence of intention, mere carelessness will not sufficed. This is the view of the majority in Letang v Cooper8 in the respect of the unintentional act of driving over the plaintiff's legs as she lay sunbathing.
Tobias intentions of slapping Edward doesn't seem to provide any difficulty , he intent to slap Will and succeed. Nevertheless, he might have not foresee the consequences of Will falling over and hurting his leg. This is however irrelevant as in tort of trespass, it is not necessary to show that the defendant intends the consequences of his or her actions. On this basis, the defendant will be liable for all the consequences flowing from the tort, whether or not they are foreseeable. 9 It is a basic requirement in battery that the harm must be direct.
This requirement is pretty straight forward in regards to Tobias slapping Will. Nevertheless, some difficulties are prone with the issue regarding Tobias flashing light on Will and Edward. On the face of it, there is no direct harm. However, the fact that the flashing light directly cause both Edward and Will to fall, it might constitute battery. The court have been flexible when interpreting the requirement of directness. In Scott v Shepherd,10 for example, the defendant was held liable for battery when he had thrown a lighted squib into a market place.
This was despite the fact that the squib had been thrown on by two stallholder, to protect themselves and their wares, before it exploded in the face of Scott. The majority of the court found the battery to be suffiently direct. Equally, in DPP v k,11 the force was suffiently immediate and direct where a schoolboy had poured some concentrated sulphuric acid, stolen from a -chemistry lesson , into a hand-dryer which was later used by another pupil with horrific results. The court held that t the boy had known full well that he had created a dangerous situation, but had nevertheless taken the risk of injury to another.
Applying these case to question in hand would easily result in Tobias being held liable in battery. It may be possible to establish Tobias flashing of light on Edward and Will under the rule in Wilkinson v Downton. 12 Where wright J. Held that: "where the defendant had wilfully undertaken an act calculated to cause physical harm to the plaintiff, there was a good cause of action". 13 Furthermore in Wain Wright v Home office,14 the House of Lords has now held that liability under this rule is dependent upon an actual intention to cause harm.
To recover under this principle it would have to be shown that Tobias had actually intended to cause harm to Edward and Will, even though this might have occurred indirectly. This has result in some physical harm. And the House of Lords in Wain confirmed that anything less than actual physical damage or psychiatric damage was unlikely to be recoverable under this principle. Applying this decision to case in hand, Tobias would be likely to be held liable because of the significant degree of physical damage done to both Edward and will.