The Directness Requirement in Intentional Torts

« The confusion surrounding the distinction between indirect and direct threats is most pertinent as to whether an assault is constituted by telephone communication.

In Barton v Armstrong 5 , Taylor J held in the Supreme Court of New South Wales that threats made over the phone were capable of constituting an assault.

It is very difficult to understand how this satisfies the directness and immediacy requirements.

It must then be questioned whether a text-message or a recorded-call constitute an assault? These may be seen as indirect threats yet they are capable of causing the plaintiff a similar degree of apprehension of imminent harm.

The apparent lag-time rendering a threat indirect shows that the requirement is now obsolete.

The courts should adopt a subjective, claimant-orientated approach and focus on the reasonable apprehension of imminent contact.

The directness requirement prevents legal certainty.

However until the denouement of reform, Trindade proposed an adaptation of the test 6 : ‘if the threat was carried out, would D’s actions alone have been enough to cause an imminent application of force?’ B.

Battery Street states that ‘the act must be a direct one’ 7 .

Directness is a fundamental component of the tort of battery.

However, Linden created great confusion saying that ‘a battery can be committed by intentionally causing physical harm, however indirectly it is brought about’ 8 .

This would seem to follow the dicta of Lord Denning in Letang v Cooper 9 whereby instead of distinguishing between direct and consequential damage, the separation now lies between intentional and non-intentional harm.

Salmon LJ further confirmed this, although more hesitantly, in Chic Fashions ltd.

v Jones 10 .

He lamented the static nature of the law and held that it is perhaps time to abolish the requirement for a ‘direct act’.

The American Restatement of Torts in 1965 held that the directness requirement would itself fade into a notion of intentionality and that a gradual approach to reform was preferable.

More troubling, this was the opinion of the English Law Reform Committee on Conversion and Detinue 11 .

It held that the requirement for there to be a ‘direct act’ caused unnecessary problems for the courts and it would simplify the tort of battery, and the whole tort of trespass to the person for that matter, if this traditional antiquity was abolished.

The example given was that distinguishing between 55 (1969) 2 NSWR 451 66 See footnote 1 77 Street, The Law of Torts (6 th edn.

OUP 1976) 88 Linden, Canadian Tort Law (Toronto 1977) 99 (1965) 1 QB 232 101 (1968) 2 QB 299, 319 111 18 th report, 1971. »