Barton v Armstrong: 1969

(Supreme Court of New South Wales) The claimant sought damages alleging assault by the making of telephone calls.
Held: Threats made over the telephone were capable of amounting to an assault. Taylor J: ‘Mr. Staff’s first and second propositions can, I think, be best dealt with together. They are the ones upon which he most strongly relied. There are, undoubtedly, many authorities which show that mere words do not constitute an assault, however insulting or even menacing they may be, and that the intention to do violence must be expressed in acts . .
Whatever the reason may be, it is clear from the many authorities cited on this subject that mere words themselves are not sufficient to constitute an assault and that the threatening act must put the victim in immediate fear or apprehension of violence. For these reasons Mr. Staff contended that all threats over the telephone could not in law be capable of constituting an assault.
I am not persuaded that threats uttered over the telephone are to be properly categorized as mere words. I think it is a matter of the circumstances. To telephone a person in the 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. If, when threats in this manner are conveyed over the telephone, the recipient has been led to believe that he is being followed, kept under surveillance by persons hired to do him physical harm to the extent of killing him, then why is this not something to put him in fear or apprehension of immediate violence? 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 civil and criminal law as to assault. How immediate does the fear of physical violence have to be? In my opinion the answer is it depends on the circumstances. Some threats are not capable of arousing apprehension of violence in the mind of a reasonable person unless there is an immediate prospect of the threat being carried out.
Others, I believe, can create the apprehension even if it is made clear that violence may occur in the future, at times unspecified and uncertain. Being able to immediately carry out the threat is but one way of creating the fear of apprehension, but not the only way. There are other ways, more subtle and perhaps more effective.
Threats which put a reasonable person in fear of physical violence have always been abhorrent to the law as an interference with personal freedom and integrity, and the right of a person to be free from the fear of insult. If the threat produces the fear of apprehension of physical violence then I am of opinion that the law is breached, although the victim does not know when that physical violence may be effected.’


Taylor J


[1969] 2 NSWR 451



Cited by:

Appeal fromBarton v Armstrong PC 5-Dec-1973
(New South Wales) The appellant had executed a deed on behalf of a company to sell shares to the respondent in the context of a long running boardroom battle. He said that the deed had been obtained by duress and was voidable. The respondent was . .
ApprovedRegina v Ireland CACD 14-May-1996
Silent telephone calls which resulted in psychiatric damage to the victim could constitute an ‘assault occasioning actual bodily harm’ for the purposes of section 47 of the 1861 Act. Swinton Thomas LJ said: ‘The early cases pre-date the invention of . .
CitedUniverse Tankships Inc of Monrovia v International Transport Workers Federation HL 1-Apr-1981
A ship belonging to the appellants had been blacked by the defendant union. Negotiations to clear the threat resulted in payment by the appellants to a welfare fund of the defendant. The company sought its refund saying that it had been paid under . .
Lists of cited by and citing cases may be incomplete.

Torts – Other

Updated: 30 April 2022; Ref: scu.235712