ACN 087 528 774 P/L (formerly Connex Trains Melbourne P/L) v Chetcuti

(2008) 21 VR 559; [2008] VSCA 274

Victorian Court of Appeal

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Interrogate

Catchwords

1. Tort
2. › Assault
3. › Elements of tort of assault
4. › Mental elements
5. › Whether defendant must have subjective intention to create apprehension of contact
6. › Whether plaintiff's apprehension must be objectively reasonable
1. Practice and Procedure
2. › Judgments and orders
3. › Adequacy of reasons
4. › Duty to adjudicate upon all substantial issues raised for determination
5. › Failure to consider alternative basis for claim
1. Appeal
2. › Re-trial
3. › Form of remitter
4. › Whether proceeding should be remitted for re-trial on all issues or liability only

Quick Take

A plaintiff seeking to establish the tort of assault (without battery) must prove five elements: (1) a threat by conduct or words to inflict harmful or offensive contact forthwith; (2) a subjective intention on the part of the defendant that the threat will create apprehension in the plaintiff's mind; (3) the threat must in fact create such apprehension; (4) the apprehension must be objectively reasonable; and (5) the apprehension caused injury. A statement of objective intention — that the defendant engaged in an intentional act which creates apprehension — is insufficient; the defendant must subjectively intend to create the apprehension.