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.
It can be found that Hard Data is vicariously liable for Chris’s actions because they occurred during the course of his employment, to which extent Chris was given the ability to act on the reputation of Hard Data. Further, Jolyon’s complaint towards the defendant to “stop disturbing her with [his] stupid calls” shows that misconduct took place in the course of employment. As Hard Data is more likely have the financial means to compensate Jolyon than Dan does and can be expected to be insured against that liability, it can be said that both vicarious liability exists between Chris and Hard Data. Before damages can be considered, the onus of the proof rests on Jolyon to show that “[her] reasonable apprehension caused injury, loss, or damage to [herself].”
If the claim in tort is successful, nominal damages could at least be awarded to Jolyon on the recognition that a tort has been committed. Compensatory or general damages would be awarded for non-economic loss, given that Jolyon may be humiliated or feel distressed as a result of the defendant’s misconduct.
The first issue in this instance is whether Dan’s text message constitutes an assault towards Miriam, and a second consideration is whether Miriam’s collapsing in shock and suffering of acute agoraphobia was caused by Dan’s sending the message. The four principles laid out in Barton as stated earlier, can used to examine the likelihood of assault. In relation with element one, Dan may have a present ability to act on the threat to come by Miriam’s place and start by killing Miriam’s cat. Although this may seem quite immediate, this depends on the information that Dan had access to. Element two created the apprehension of immediate physical violence in the plaintiff’s mind as she can reasonably think that Dan was capable of harming her within a definite time frame. Element three does not apply in this instance. The final element of expressing a threatening act as opposed to threatening speech can be seen as Dan had full control over his sending of the text message as well. Therefore, in this case assault is somewhat likely to be proven, as these elements can be satisfied given the above reasons.
Miriam’s resulting damage from Dan’s text causing psychiatric injury must be proved to have occurred as a result of the defendant’s wilful act calculated to cause harm (within a reasonable foreseeability) and in fact cause that harm. Applying the definition of calculated as per Nationwide News , it is not necessary that Dan’s act is likely to have an effect, but rather “his reckless indifference [that can be] sufficient to establish intention”. Since agoraphobia is a recognisable psychiatric injury, the onus of proof is on Miriam to show that Dan did in fact cause this condition.
For reasons stated previously, it can be reasonably found that Hard Data will be held vicariously liable for Dan’s actions. On the basis that Miriam’s claim in tort is successful, she will most likely be awarded general damages for a loss of future earning capacity (given her leave of employment) and future medical expenses (given her psychiatric condition). In addition, special damages should be considered for economic loss of at least $50,000 as a lump sum payment for past and future costs.
As Dan is being investigated for breaching s 474.17(1) of the Criminal Code Act 1995 (Cth) for the offence of using a carriage system to mentally harass or offend Miriam, the maximum penalty is imprisonment for three years. As outlined in the “relevant approach” in Prince Alfred College:
[t]he nature of the employee’s responsibilities may justify the conclusion that the employment not only provided an opportunity but also was the occasion for the commission of the wrongful act. By way of example, it may be sufficient to hold an employer vicariously liable for a criminal act committed by an employee where, in the commission of that act, the employee used or took advantage of the position in which the employment placed the employee vis-à-vis the victim.
Dan’s intimacy with Miriam shows that Hard Data could potentially be held liable for harassment under the investigation if Dan took advantage of his position and further, his access to a network of information provided by the market research company. Hard Data’s enabling of access to relevant information could prove dangerous, and the lack of rigid supervision during Chris and Dan’s employment may not exempt Hard Data from vicarious liability.
The rights of indemnity and contribution that Hard Data may have towards both Chris and Dan indicate that they aren’t liable to pay contributions to Hard Data due to vicarious liability, and Hard Data is liable to indemnify Chris and Dan from any liability incurred. If Dan’s more consequential actions constitute wilful misconduct (even following provocation by Miriam) he is not entitled indemnity and can be held personally liable for his conduct.
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