Most people know that they can get compensation in a personal injury case or claim if they are injured in an accident. Yet did you know there are civil remedies available to those who are injured because someone assaults them, too?
In addition to whatever criminal remedies someone faces when they commit assault against you, those who commit assault may also find themselves facing civil cases and being ordered by the courts to pay damages for their victim’s losses. Here’s what you need to know about assault as a tort and Its remedies.
Table of Contents
What is a Tort?
A tort is a case where someone, either through their own negligence or by intentional accident, causes you to suffer harm that results in monetary losses. When this happens, the person who caused the harm has an obligation to make the victim “whole” by compensating them financially.
Car accident cases, slip and fall cases, defective product cases, and civil assault cases are all torts.
An assault tort is known as an “intentional tort,” meaning that someone intended to cause you harm.
What are the Elements of Assault?
The law defines an assault as any time when a person applies force, either directly or indirectly, to another person without their consent. This can include:
- Punching
- Pushing
- Slapping
- Kicking
- Spitting
A person is also guilty of an assault if they threatened to use force in a way that causes the victim to have a reasonable and credible belief that the offender would inflict harm upon them.
“Consent” does not always consent. If someone is in a position of authority or is able to use trickery or fraud to get a victim to submit, or the defendant threatens someone else, there is capitulation but there is no consent. In addition, it is not possible to legally consent to an assault with a weapon, an assault causing serious bodily harm, or aggravated assault.
An example of when someone might legitimately consent to an act of assault might be in a martial arts or boxing class, where two individuals consent to punch one another in a way that might cause bruises in order to learn.
What is an Intentional Tort? A Guide to Understanding Tort Law Part 1
What’s the Difference Between Assault and Battery?
In a civil case, assault occurs when a person threatens or attempts to hurt someone. Battery occurs when a person intentionally applies force to another person without their consent.
A person may sue for assault in either case. Even if you weren’t actually physically hurt you can sue, as the act of threatening another human being can cause significant emotional distress.
A claim for the tort of assault might be raised, for example, if someone raises their fist as if to attack someone and that person trips and falls as a result of the possible danger.
For example: Regardless of the harm done, the simple battery includes all forms of unwanted, hurtful, or insulting contact. Criminal battery requires the intention to cause harm to another person. Sexual battery is the unwanted touching of another person’s private parts.
How do Defendants Defend Against Assault Torts?
One method may be to claim that they were acting in self-defence. To be successful they will have to show that they only used a reasonable amount of force to defend themself against an attack that you launched, or against the harm they truly believed that you were going to cause them.
Another defence might assert that they were defending their property. Here, they must also show that the use of force was proportionate to what it took to defend their property. They must also show that you, the plaintiff, were already attacking the property and that there was no other way to stop you.
Another defence may be that the assault was legal and within the bounds of consent and that you consented to it. Note that even if you have consented to behaviour in the past, you can always withdraw consent, and if you can show that you did withdraw consent you can defeat this defence.
A fourth defence would revolve around claiming that the assault never happened. If the defendant can prove that they did not assault you, then they would not be liable for an assault tort.
A fifth defence revolves around legal authority. An officer of the law might commit an act of assault in the course of their duties. While excessive force may be grounds for a tort the mere use of force may not be.
Finally, you as the plaintiff must be able to demonstrate that real harm came from the assault. If you did not suffer any damages, then you will not have grounds for an assault tort.
What Damages are you Entitled to in an Assault Tort Case?
In an assault tort case, you may receive pecuniary, non-pecuniary, and punitive damages.
Pecuniary damages cover lost wages, loss of earning capacity where applicable, medical bills, and other monetary losses and expenses caused by the assault.
Non-pecuniary damages cover your pain and suffering. These awards are capped at $370,000 in Alberta. They’re also highly subjective, which means they will depend greatly upon your lawyer’s litigation and negotiation skills.
Finally, there are punitive damages. In an intentional tort case, the defendant has literally committed a criminal act against you. These are excellent grounds for pursuing punitive damages, and one of the few case types where you can reasonably expect them to be awarded.
Who Pays Assault Torts?
In most tort cases, an insurance policy exists to help pay the claim. This isn’t always true in an intentional tort case.
lawyers will often look for a way to make it true. For example, if someone committed assault while on the clock for their employer then their employer may be liable, which means their business liability policy will cover the costs.
There are also cases where a third party may be held accountable if they knew that an employee or tenant had a pattern of committing assault and took no steps to keep others safe from that individual. In those cases, again, their policies would pay.
Sometimes there is just no available insurance policy. When this happens your lawyer would have to start looking for assets that might be seized to pay the claim. This could include monies in the defendant’s bank account, the defendant’s home, or other assets which could be leaned upon to ensure that you get paid. This can only be done once you have a court order backing your right to be paid.
Determining whether we can actually get your claim paid is one of the steps we’ll take when undertaking your case review. It’s just not worth it to put you through the entire process if there’s no money to collect.
Assaulted? Need help?
If you or a loved one has been assaulted or injured, you have no time to lose. There’s no profit in waiting. You have only two years to file your claim, and waiting only means that evidence dries up and witnesses disappear.
Make your risk-free call to Red Deer Injury Lawyers today. Most of our lawyers have over 20 years of experience handling intentional tort cases. We’ve helped thousands of Albertans get the funds they’ll need to live their lives after their injuries, and we’ve managed every kind of personal injury case known to the legal system.
Remember, we don’t get paid unless we bring your case to a satisfactory conclusion. You don’t have to worry about coming up with a retainer or an exorbitant hourly rate. We’re happy to answer your questions, explain the process, and go over the next steps just as soon as you schedule your appointment.
Call (403) 269-7777 to schedule your case evaluation today.
FAQ
What Differentiates an Assault from a Battery?
|
S. No. |
Assault |
Battery |
|
1. |
The sole intention is to threaten the person. |
It is used to harm the person. |
|
2. |
No physical contact is required. |
Physical contact is mandatory. |
|
3. |
Trying to punch a person is an assault. |
Actually, punching the person is considered a battery. |
Why is Assault a Tort and not a Crime?
In other words, the defendant may have planned to harm (as in an assault), or it may have been an accident (car accident). Crimes are always intentional. The defendant intentionally disobeys the rules of law.
What Are the 4 Elements of Assault?
Additionally, the act must appear capable of being carried out; if a reasonable person does not believe the actor can carry out the threatening assault, then there is no assault.
Elements of Assault
- Intent,
- Apprehension of harmful contact and.
- Causation.
What is the Remedy for Battery?
Replevin: This helps the victim get back the personal property he lost due to the battery. Ejectment: In this remedy, the court assists in expelling the trespasser from the owner’s property.
