Criminal Law Assault vs Civil Law Trespass to Person

We are commonly asked whether a victim of physical, sexual and/or psychological abuse must first succeed in criminal prosecution before they can pursue a damages claim.

The short answer is no. You can pursue a common law damages claim regardless of whether or not the perpetrator has been criminally prosecuted.

WHAT IS THE DIFFERENCE BETWEEN CRIMINAL LAW ASSAULT AND THE CIVIL LAW CAUSE OF ACTION OF TRESPASS TO PERSON?

Criminal law Assault

Assault is a criminal offence under s 245(1) of the Criminal Code Act 1899 (Qld):

‘[a] person who strikes, touches, or moves, or otherwise applies force of any kind to, the person of another, either directly or indirectly, without the other person’s consent, or with the other person’s consent if the consent is obtained by fraud, or who by any bodily act or gesture attempts or threatens to apply force of any kind to the person of another without the other person’s consent, under such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect the person’s purpose, is said to assault that other person, and the act is called an assault’.

The standard of proof required for criminal matters is ‘proof beyond reasonable doubt’. Under criminal law, the person who perpetrated the assault may be convicted and punished if they are found guilty of committing the assault.

Civil law trespass to person

Importantly, regardless of whether or not the perpetrator of the assault is convicted under criminal law, depending on the circumstances of what happened to you, you may be able to make a claim for compensation under civil law. There are three (3) torts of trespass to person that exist to protect a person’s right to physical integrity at civil law:

a)    Assault;
b)    Battery; and
c)     False imprisonment.

These torts are ‘actionable per se’ which means there is no need for you to prove you have suffered damage, loss and/or harm. You only need to prove that the trespass occurred ‘on the balance of probabilities’. 

a)    Assault
The tort of assault deals with cases where a person intentionally creates in another person an apprehension of imminent harmful or offensive contact. Importantly, no physical contact is required to prove the tort of assault.

The word ‘apprehension’ in this context requires consideration of the following:

1.     Whether you knew of the threat;
2.     Whether the person who is committing the assault appears to have the ability to actually carry out the threat;
3.     Whether the person committing the assault appears to have the intent to carry out the threat;
4.     Whether the apprehension was reasonable (i.e. you must prove that a reasonable person in your position would have apprehended contact).

b)    Battery
The tort of battery is concerned with actual infliction of unlawful physical contact with your person. The elements of battery are:

1.     an intentional or negligent act by the perpetrator;
2.     that immediately or directly caused physical contact with you; and
3.     such contact was offensive, in that it was likely to cause injury or affront.

For a battery claim to succeed, there must be actual physical contact with your person. However, it is not necessary that the person committing the battery physically touches you. For example, throwing something at someone, hitting them with a weapon, or spitting on them may constitute a battery.

It is also important to note that you can be subjected to battery whilst unconscious. For example, in medical settings a patient may be asleep, unconscious, comatose or anaesthetised when the battery occurs.

c)     False imprisonment
False imprisonment is concerned with the deprivation of liberty. You need to prove that you were imprisoned by another person without your consent and without any legal justification. Importantly, you do not need to prove that the imprisonment was malicious.  

WHAT COMPENSATION CAN I CLAIM UNDER A TRESPASS CLAIM

There are various items of compensation you may be able to claim for under a trespass claim, including:

a)    General damages (which includes pain and suffering);
b)    Aggravated damages and violation of personal integrity;
c)     Exemplary damages;
d)    Lost income and superannuation (past and future);
e)    Care and assistance (past and future);
f)      Out-of-pocket expenses (e.g. medical treatment).

CASE EXAMPLE - GARDINER v DOERR [2022] QSC 188

In this case, the Plaintiff (Ms Gardiner) was separated from the Defendant (Mr Doerr). It was alleged that Mr Doerr broke into the Plaintiff’s house one night and assaulted her. Mr Doerr was acquitted in the District Court criminal proceedings, however, Ms Gardiner made a civil claim against Mr Doerr for trespass to person and succeeded.

The Trial Judge found that Mr Doerr was liable to Ms Gardiner in the tort of battery as there was an intentional act that caused direct contact with Ms Gardiner’s person and such contact was offensive in that it was likely to cause injury or affront. Ms Gardiner suffered a psychological injury as a result of the battery.

Aggravated Damages

The Trial Judge confirmed that ‘Aggravated damages are compensatory in nature. An award of aggravated damages provides additional compensation for the injured feelings of a plaintiff where his or her sense of injury resulting from the wrongful physical act is justifiably heightened by the manner in which or the motive for which the defendant did the act.’

Another relevant consideration to an award of aggravated damages is the manner in which a defendant conducts his or her own defence to the claim and the impacts such conduct might have on the plaintiff.

Mr Doerr denied that he committed the battery which prolonged the litigation and his cross examination of the plaintiff was held to be ‘overly long and repetitious’. In all the circumstances, the Trial Judge held that this was an appropriate case to award aggravated damages.

Exemplary Damages

The Trial Judge confirmed that ‘Exemplary damages are punitive in nature and in addition to punishing a defendant and providing retribution to the plaintiff, they are awarded to act as a deterrent to the defendant and others and to demonstrate the court’s disapproval of the defendant’s conduct.’

Mr Doerr had not yet been punished for the assault criminally as he was acquitted and therefore, it was appropriate for the Trial Judge in this case to make an award for punitive damages.

Summary of Assessment of Damages

General damages $8,410.00
Past economic loss (including interest) $416,425.00
Future economic loss $343,081.00
Gratuitous services $35,560.00
Past out of pocket expenses (including interest) $15,311.40
Future out of pocket expenses $13,126.00
Aggravated damages including interest $67,600.00
Exemplary damages (including interest) $67,600.00
Total $967,113.40

CASE EXAMPLE - WILDEN v JENNINGS (no 1) [2021] NSWDC 705

These proceedings arose out of a relationship between the Plaintiff (Ms Wilden) and the Defendant (Mr Jennings) during the period of approximately 2010 and 2016. The couple married in 2015 but lived together from about October 2012 to May 2016. During the period of co-habitation, it was alleged that Mr Jennings engaged in forced sexual intercourse without Ms Wilden’s consent on at least 4 occasions.

The Trial Judge held that Ms Wilden had satisfied the following intentional torts:

a)    Assault – there was a direct and intentional threat by Mr Jennings that put Ms Wilden in a reasonable apprehension of an imminent physical contact; and
b)    Battery – Mr Jennings committed a voluntary and positive act which was done with the intention of causing contact with Ms Wilden that directly caused physical contact.

Aggravated Damages

The Trial Judge found it appropriate to make an award for aggravated damages and stated that: ‘It is hard to imagine a clearer case of an intentional tort where such damages ought to be awarded. It is plain that Ms Wilden has suffered enormous insult, humiliation, embarrassment and shame by the conduct of Mr Jennings, and that ought to be reflected in an award of damages.’

Exemplary Damages

The Trial Judge also found it appropriate to make an award for exemplary damages and held that: ‘Such damages are directed to punishing the defendant and to act as a deterrent to both the defendant and others. There is no question that conduct of this type should not be tolerated in society and there is a need to deter both Mr Jennings and others like him from behaving in this manner.’

The Trial Judge noted that Mr Jennings had not been dealt with by the police as no complaint had been made and therefore in the circumstances, there was no risk of double punishment by an award of exemplary damages.

Summary of Assessment of Damages

General damages $200,000.00
Interest on general damages $10,000.00
Aggravated damages (including interest) $52,500.00
Exemplary damages $75,000.00
Out of pocket expenses $1,341.05
Future treatment expenses $51,250.00
Economic loss $100,000.00
Total $490,091.05

TIME LIMITS

There are strict time limits that apply to personal injury claims in Queensland. It is important you seek legal advice early so that you don’t miss any critical time limits.

To find out how Southside Legal can assist you with a trespass to person claim, please contact our team for a confidential and obligation free consultation on 07 5600 1660.