Tortious Assault:

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Distinguishing the Tort of Assault from the Tort of Battery

Tortious assault is commonly confused with tortious battery.  The confusion appears to arise from similar misperception for assault in the criminal law context.  Tortious assault, like criminal assault, requires only a threat or fear of imminent harm by violence or undesired physical contact. It is tortious battery that involves actual violence or undesired physical contact.

The Law

The tort of assault was explained well in the case of Barker v. Barker, 2020 ONSC 3746, wherein it was stated:

Interestingly, and unlike the tort of battery, as explained in Barker, the tort of assault arises without physical contact being made and requires only that a reasonable fear and apprehension of harmful physical contact exists; and accordingly, assault arises upon the fear of infliction of injury rather than an actual infliction of injury.

Claimable Damages

In a claim for tortious assault, a Plaintiff may claim actual damages for losses such as first aid expenses, medical costs, pharmaceuticals, among other out-of-pocket expenses, as well as lost income if time away from work occurred.  Additionally, a Plaintiff may claim general damages for pain, suffering, humiliation, anxiety including lingering fear, lifestyle impairment, among other issues.  In some circumstances, punitive damages may also be awarded. As was also explained in Barker above, an award of damages, including punitive damages, for the tort of assault may arise even where the victim of an assault suffers little, if any, injury whereas the civil law courts generally view that a damages award serves the societal purpose of denouncing aggressive abusive behaviour that may lead to violence.

Interestingly, in some circumstances, certain family members of an assault victim may also bring claims when adverse affects, such as lifestyle changes, even if temporary, occur as an indirect consequence of the harm suffered directly by the assault victim.

Conclusion

Assault involves conduct that raises a fear of imminent harm by physical conduct within another person.  If actual physical conduct occurs, then the assault escalates into battery.