Barton v Armstrong (LAWS1052)

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Citation: Barton v Armstrong [1969] 2 NSWR 451.

This information can be found in the supplementary materials to LAWS1052 - Introducing Law & Justice.

Contents

Background facts

  • Plaintiff was coerced into executing (signing) a deed (contract) by both threats of violence and to take his life.
  • Many of the threats were made over the phone and in the early hours of the morning.
  • Plaintiff was also allegedly being kept under surveillance by men hired by the defendant.

Argument

  • Plaintiff sued the defendant claiming damages for assault - two counts for assault, and a claim for exemplary damages
  • Defendant requested that the plaintiff should specify:
    • The act or acts intended to be relied upon as constituting the alleged assault.
    • When the alleged assault took place.
    • Where the alleged assault took place.

Legal issues

  • Intentional Torts - Assault
    • Can threats over the telephone constitute assault?
    • Does the feared violence have to be immediate?
    • Can assault be found where the plaintiff has option to avoid the assault?

Judgment

  • Can threats over the telephone constitute assault?
    • Threats uttered over the telephone are not properly characterized as mere words. Therefore, yes, threats over the telephone are capable of constituting assault.
    • 'To telephone a person in early hours of the morning, not once but on many occasions, and to threaten him, not in a conversational tone but in an atmosphere of drama and suspense, is a matter that a jury could say was well calculated to not only instil fear into his mind but to constitute threatening acts, as distinct from mere words'.
  • Does the feared violence have to be immediate?
    • Depends on circumstance. The test is whether the threat is capable of arousing an apprehension of violence.
    • 'Threats which put a reasonable person in fear or apprehension of physical violence can constitute assault, although the victim did not know when that physical violence may be affected'.
  • Can assault be found where the plaintiff has option to avoid the assault?
    • Yes, it is open to the jury to find this is assault.
    • 'While plaintiff may be given an alternative to the suffering of physical harm he might nevertheless entertain a real fear that he would suffer physical violence'.
  • Thus, threats count as assault because they affect the victim psychologically.
  • Also, because of the advancement of technology, 'physical violence and death can be produced by acts done at a distance by people who are out of sight and be agents hired for that purpose'.

References

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