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.
I.e. 'If Henry points a gun at Thomas he has committed an assault. It makes no difference whether the gun is loaded,' 'assault protects the claimant who fears or apprehends a battery.' first, there must be a positive act by the defendant; second, the plaintiff had reasonable apprehension (the requisite state of mind) of immediate physical contact, and third, the defendant's act of interference was intentional (the defendant intended the resulting apprehension).
An actionable assault requires that:
- 'the defendant intends that the claimant apprehends the application of unlawful force;
- the claimant reasonably apprehends the immediate and direct application of unlawful force;
- for which the defendant has no lawful justification or excuse.'
- Lastly, the state of apprehension should be differentiated from the general state of fear, as apprehension requires only that the person be aware of the imminence of the harmful or offensive act.
It is clear that 'all forms of trespass require an intentional act. An act of negligence will not suffice.' There must be capacity and immediacy - simply threatening someone will not suffice.
Whilst it has been speculated that words alone do not constitute assault, there must be an act (I.e. in R v Meade), this was questioned in R v Ireland it was held that repeated silent telephone calls being made can constitute an assault:
<nowiki/>'The proposition that a gesture may amount to an assault, but that words can never suffice, is unrealistic and indefensible. where the claimant was threatened by a group of people who said: 'if you don't leave we will break your neck.' where the plaintiff said 'If it were not assize time, I would not take such language from you,' whilst showing his sword, that words negating an assault is not an assault. This was because 'the intention as well as the act makes an assault' where the defendant held a spade over his wife's head and said 'if that police officer wasn't outside, I would hurt you'.
Defences
Assault can be justified in situations where there is 'lawful justification or excuse' Additionally, they could be entitled to: compensatory damages whereby you try and put the claimant in the position they would have been in before the assault occurred,