It can likely be stated that both Chris and Dan are employees of Hard Data Company Pty Ltd (“Hard Data”) for the following reasons: the job allocated to them involved a low level of skill, they have little control over the wages and hours worked, further that they are using company mobile phones during the course of their employment. Chris and Dan acted in clear violation of the instructions given to them by Hard Data to be polite to surveyees at all times, and conducted themselves in a manner that was expressly forbidden. Given that both individuals used an unauthorised mode of performing an authorised act, it is likely that these classifications are connected and took place during the course of employment.
The first issue is whether Chris’s sending a text message out of anger in spite of Jolyon’s stating that she “[doesn’t] want to be disturbed by [Hard Data’s] stupid calls” proves considerable grounds of assault. The tort of assault is committed where the defendant’s intentional or reckless act creates in the plaintiff’s mind the objectively reasonable perception of the immediate or imminent application of unlawful force. The elements to be proven for assault, as outlined in Barton v Armstrong :
(1) there must be a present ability of the part of the defendant to carry out the threat;
(2) threatening acts do not constitute an assault unless they are of such a nature to put the plaintiff in fear or apprehension of immediate violence;
(3) words may render harmless that which otherwise would be an assault; and
(4) the intent to do violence must be expressed in threatening acts, not merely threatening speech.
In regard to element one, Chris may have the means of carrying out the threat if he has a vehicle or mode of transportation, as well as Jolyon’s address. Although Chris’s sending of the text message could simply be mere words, a reasonable person in Jolyon’s position would apprehend a battery and constitute an assault, perhaps fearing for her own safety. However, Chris’s message does not specify the immediacy of the threat, but rather rests on the assumption that he will carry it out in the indefinite future. Therefore, in line with element two above, the imminence requirement outlined in Balven v Thurston is also unsatisfied. The third element does not apply in this instance, as Chris did nothing to diminish his own intention of a threat. Potential liability could arise as element four is coupled with relevant action: Chris had full discretion as to whether to send the text message as well as the gun emoji. An emoji is defined by the Oxford English Dictionary as a small digital image or icon used to express an idea or emotion, and it could be stated that Chris intended to intimidate by placing the idea that he was capable of bringing a gun to assault Jolyon. As outlined in Barton:
In the age in which we live threats may be made and communicated by persons remote from the person threatened. Physical violence and death can be produced by acts done at a distance by people who are out of sight and by agents hired for that purpose. I do not think that these, if they result in apprehension of physical violence in the mind of a reasonable person, are outside the protection afforded by the civil and criminal law as to assault.
Whether Chris has the financial means or relevant ability to carry out the threat in this matter is another consideration entirely. Therefore, the tort of assault, actionable per se, is not likely to be proved by Jolyon as the elements outlined above are only fulfilled in part.
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