What Is Meant By Tortious Battery?

The Tort of Battery Involves Intentional Physical Contact With Another Person Without the Consent of Such Other Person.

Understanding the Physical Contact Constituting As Tortious Battery Including the Applicable Defences Thereto

Lawsuit Document The tort of battery arises in law from the principle that every person, generally, holds the right to enjoy freedom from unwanted physical contact  Simply said, people hold a right to expect freedom from undesired physical contact.  Interestingly, tortious battery may arise even in situations where the undesired contact lacked an illicit intent.

The Law

The tort of battery requires direct physical contact rather than just a fear of contact (the presence of fear alone may give rise to a tortious assault).  The tort of battery may arise in various forms commonly referred to as general battery, sexual battery, or even medical battery.  General battery may occur as a result of a fist fight.  Sexual battery may arise as a result of a rape.  Medical battery may arise as a result of undesired medical procedure. The three types of battery were explained well within the cases of Grech v. Scherrer, 2021 ONSC 6740 (general battery), PP v. DD, 2017 ONCA 180 (sexual battery), and Malette v. Shulman, 1990 CanLII 6868 (medical battery), wherein each it was respectively stated:

[31]  Battery is defined in the text Canadian Tort Law on page 46 as follows,

A person who proves that the defendant made direct physical contact with her person makes her case for battery. The onus then shifts to the defendant to establish that the contact was neither intentional nor negligent; or that the plaintiff consented to the contact or that a reasonable person would think she had consented. This nominate tort protects the interest in bodily security for interference from others. It is sometimes said that the contact must be harmful or offensive, but this is misleading. By definition, any contact beyond the trivial contact that is expected in the course of ordinary life is prima facie offensive if it is non-consensual. Every person’s body is inviolate. The tort protects the integrity of one’s person and does not require proof of further injury.

[70] In Non-Marine Underwriters, Lloyd's London v. Scalera, [2000] 1 S.C.R. 551, [2000] S.C.J. No. 26, 2000 SCC 24, McLachlin J. (as she then was), writing for the majority, set out the purpose and features of the tort of battery, at para. 15:

The tort of battery is aimed at protecting the personal autonomy of the individual. Its purpose is to recognize the right of each person to control his or her body and who touches it, and to permit damages where this right is violated. The compensation stems from violation of the right to autonomy, not fault. When a person interferes with the body of another, a prima facie case of violation of the plaintiff's autonomy is made out. The law may then fairly call upon the person thus implicated to explain, if he can. If he can show that he acted with consent, the prima facie violation is negated and the plaintiff's claim will fail.

[71] The constituent elements of the tort of "sexual battery" are the same as those of the tort of battery. That is, the plaintiff must prove on a balance of probabilities that the defendant intentionally touched the plaintiff in a sexual manner. To prove a battery, the plaintiff must also demonstrate that the interference with his or her body was "harmful" or "offensive", but this element is implied (assuming a lack of consent) in the context of a sexual battery: Scalera, at para. 22.

The right of a person to control his or her own body is a concept that has long been recognized at common law. The tort of battery has traditionally protected the interest in bodily security from unwanted physical interference. Basically, any intentional nonconsensual touching which is harmful or offensive to a person's reasonable sense of dignity is actionable. Of course, a person may choose to waive this protection and consent to the intentional invasion of this interest, in which case an action for battery will not be maintainable. No special exceptions are made for medical care, other than in emergency situations, and the general rules governing actions for battery are applicable to the doctor- patient relationship. Thus, as a matter of common law, a medical intervention in which a doctor touches the body of a patient would constitute a battery if the patient did not consent to the intervention. Patients have the decisive role in the medical decision-making process. Their right of self- determination is recognized and protected by the law. As Justice Cardozo proclaimed in his classic statement: "Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient's consent commits an assault, for which he is liable in damages": Schloendoff v. Society of New York Hospital, 211 N.Y. 125 (1914). See also, Videto v. Kennedy (1981), 1981 CanLII 1948 (ON CA), 33 O.R. (2d) 497, 125 D.L.R. (3d) 127, 17 C.C.L.T. 307 (C.A.); Linden, Canadian Tort Law, 4th ed. (1988), at pp. 40-3 and p. 59 et seq.; Prosser & Keeton, The Law of Torts, 5th ed. (1984), at pp. 39-42; and Fleming, The Law of Torts, 7th ed. (1987), at pp. 23-4.

The doctrine of informed consent has developed in the law as the primary means of protecting a patient's right to control his or her medical treatment. Under the doctrine, no medical procedure may be undertaken without the patient's consent obtained after the patient has been provided with sufficient information to evaluate the risks and benefits of the proposed treatment and other available options. The doctrine presupposes the patient's capacity to make a subjective treatment decision based on her understanding of the necessary medical facts provided by the doctor and on her assessment of her own personal circumstances. A doctor who performs a medical procedure without having first furnished the patient with the information needed to obtain an informed consent will have infringed the patient's right to control the course of her medical care, and will be liable in battery even though the procedure was performed with a high degree of skill and actually benefitted the patient.

The right of self-determination which underlies the doctrine of informed consent also obviously encompasses the right to refuse medical treatment. A competent adult is generally entitled to reject a specific treatment or all treatment, or to select an alternate form of treatment, even if the decision may entail risks as serious as death and may appear mistaken in the eyes of the medical profession or of the community. Regardless of the doctor's opinion, it is the patient who has the final say on whether to undergo the treatment. The patient is free to decide, for instance, not to be operated on or not to undergo therapy or, by the same token, not to have a blood transfusion. If a doctor were to proceed in the face of a decision to reject the treatment, he would be civilly liable for his unauthorized conduct notwithstanding his justifiable belief that what he did was necessary to preserve the patient's life or health. The doctrine of informed consent is plainly intended to ensure the freedom of individuals to make choices concerning their medical care. For this freedom to be meaningful, people must have the right to make choices that accord with their own values regardless of how unwise or foolish those choices may appear to others: see generally, Prosser & Keeton, op.cit., p. 112 et seq.; Harper, James & Gray, The Law of Torts, 2nd ed. (1986), c. III; Linden, op.cit., p. 64 et seq.; and Reibl v. Hughes (1980), 1980 CanLII 23 (SCC), 114 D.L.R. (3d) 1, [1980] 2 S.C.R. 880, 14 C.C.L.T. 1.

Defence Strategy

A person sued for the tort of barratry may seek to defend the allegation in various ways.  Most significantly would be to defend on the basis that the contact failed to occur as alleged.

Lacking Actual Contact

The tort of battery requires that actual contact occurred.  The contact may occur directly as physical touch by a person or indirectly by an object in the control of a person.  Accordingly, if actual contact failed to occur, then a legal action in the tort of battery should fail.  This point in law was stated in Michieli v. Mao, 2022 ONSC 236 where it was said:

[24]  It is settled law that to establish battery, a plaintiff must prove direct physical contact with his/her person.  In Non-Marine Underwriters, Lloyd’s of London v. Scalera, 2000 SCC 24 (CanLII), [2000] S.C.J. No. 26, McLachlin J., as she then was, described it as a “settled rule” that a plaintiff in a battery case must show “contact through a direct, intentional act of the defendant”.  Thus, if a plaintiff is unable to establish, on a balance of probabilities, that a defendant made direct physical contact with his/her person, the claim in battery fails.

Incidental Contact Permitted

As per the various cases, the physical contact required in a case of battery must be intentional.  As per the battery definition provided within the Grech case, battery requires that the contact be intentional, physical, and offensive; and accordingly, accidental or negligent contact in the sense of an accidental bump while standing in a crowd is insufficient to support a battery claim.  Specifically, per Grech, "any contact beyond the trivial contact that is expected in the course of ordinary life is prima facie offensive if it is non-consensual"; and accordingly, a defence strategy may seek to demonstrate that the contact was trivial and expected in the ordinary course of life.

Self-Defence

The available defence strategy of self-defence addresses the right of a person protect against attack by another person; however, any physical strike, by fist or with use of an object, must be intended to prevent injury rather than from a desire to inflict injury.  Additionally, the level of force used must be reasonable.  The case of Grech v. Scherrer, 2021 ONSC 6740 specifically addressed the right of self-defence as well as the legal limits to a self-defence effort.  In the interesting case of Pollard v. Simon, 2009 BCPC 190, it was also explained that a battery may occur in self-defence to assault; or in simple terms, that a first strike was made due to a reasonable fear of being struck first.  Specifically, in the Grech case and the Pollard case it was respectively said:

[32]  On page 10 of Canadian Tort Law, it states that the common law has excused intentional interference with the person of another, if one person is threatened with harm by another. Self preservation is recognized as an inevitable and unavoidable instinct in human beings which must be accepted by the law.

[33]  The authors of the text, however, note that self defence is a preventive mechanism and not an instrument for revenge. Force employed by a threatened person for self defence must be reasonable. Since the right of self defence is one which might be easily abused, the courts have condemned measures, “out of proportion to the apparent urgency of the occasion”. Defensive force is not reasonable if it is either greater than necessary for the purpose of preventing the attack, or disproportionate to the evil being counteracted. In other words, acts of self defence must be both reasonably necessary as well as reasonably proportionate to the harm being threatened. The force must therefore, not transgress the reasonable limits of the occasion, recognizing, however, that errors are possible when split second decisions must be made in response to threatened harm. The courts do not expect people to measure with legal nicety the extent of their blows.

[34]  The onus of proving self defence in a civil action rests upon the defendant.

[26]  In order to establish self defence, a defendant does not have to show that the claimant struck the first blow or was actually going to hit him: Slauenwhite v. Walker, [2000] N.S.J. No. 268 (N.S.S.C.).  At para. 16, Hall J. stated:

…the right to repel force with force is not confined to warding off a blow. Tort law does not stay the hand until a battery has actually be [been] committed, for if it did it might "come too late afterwards" to do any good. A person may, therefore, strike the first blow and still claim the privilege of self-defence, as long as the purpose of the blow is to halt future or further aggression and not to punish the attacker for his past aggression. In short, "self-defence means defence, not counter-attack."

The privilege of self-defence is available not only where harm is actually threatened by an attacker, but it may also be relied upon by a person who reasonably believes that he is about to be attacked. Even though he is mistaken as to whether he is in danger he will be excused as long as he has been reasonable in his error.

[27]  When acting in self defence, a defendant may use no more than reasonable force, but is not required to measure his blows “to a nicety.”  All else being equal an attack or anticipated attack may be answered by force equivalent to the attack, and the effects of the response are not determinative as to its reasonableness: Buchy v. Villars, 2008 BCSC 385.

Sexual Battery, consent

In a case alleging sexual battery, the Defendant must either prove that the alleged physical contact failed to occur or that the Plaintiff consented to the contact.  Proving consent requires showing that the consent was expressly stated or was implied in a manner that a reasonable person would perceive as a genuine consent.  The requirements of assessing what constitutes as consent were expressed in the case of Lloyd's of London v. Scalera, [2000] 1 S.C.R. 551 where it was said:

2  As Goff L.J. (as he then was) stated in Collins v. Wilcock, [1984] 3 All E.R. 374 (Q.B.), at p. 378, “[t]he fundamental principle, plain and incontestable, is that every person’s body is inviolate”.  The law of battery protects this inviolability, and it is for those who violate the physical integrity of others to justify their actions.  Accordingly, in my respectful view, the plaintiff who alleges sexual battery makes her case by tendering evidence of force applied directly to her.  “Force”, in the context of an allegation of sexual battery, simply refers to physical contact of a sexual nature, and is neutral in the sense of not necessarily connoting a lack of consent.  If the defendant does not dispute that the contact took place, he bears the burden of proving that the plaintiff consented or that a reasonable person in his position would have thought that she consented.

Interestingly, the Lloyd's of London case, raised the issue of whether the onus should fall upon the Plaintiff to disprove that consent was provided rather than upon the Defendant to prove that consent was provided.  Following review of the argument, the Supreme Court said:

27  If there were something special about sexual battery that justified requiring the plaintiff to prove that the defendant either knew she was not consenting or ought to have known that she was not consenting, a case might be made for so doing.  The result would be a special rule for sexual battery inconsistent with the law of battery generally, and the creation of a new tort of sexual battery.  Thus far the courts have declined to do this.  As Professor Feldthusen notes, “[t]here has yet to be recognised a new nominate tort of sexual battery” (emphasis in original):  “The Canadian Experiment with the Civil Action for Sexual Battery”, in N. J. Mullany, ed., Torts in the Nineties (1997), 274, at p. 281.  The sexual aspects of the claim go only to damages.  However, as I stated above,  a new tort of sexual battery with different rules from ordinary battery could be recognized in an appropriate case.

28  Before examining whether sexual battery is so different that special rules are required as to what the plaintiff must show, it is important to take note of the danger of placing special, unjustified burdens on victims of sexual encounters.  At p. 282, Feldthusen notes that “in the criminal sphere, enquiries into alleged consent have allowed the focus of the criminal trial to shift from the actions of the defendant to the character of the complainant.  The same potential exists in tort law” (emphasis added).  As he points out, “[t]here exist in our law deeply imbedded tendencies towards victim blaming” (p. 283).  This is not to say that alleged victims of sexual assault could never be singled out by placing special rules of proof on them that do not apply to other types of plaintiffs.  It is rather to say that we must guard against placing such burdens upon alleged victims of sexual assault unless it can objectively be shown that it is necessary to do so in order to achieve justice.

29  To require plaintiffs in actions for sexual battery to prove that they did not consent and that a reasonable person in the circumstances of the defendant would not have believed they consented, is to place a burden on plaintiffs in actions for sexual battery that plaintiffs in other types of battery do not bear.  It is to do so, moreover, in the absence of any compelling reason.  Indeed, there are powerful reasons for applying the usual rules that require a plaintiff to prove only direct contact in cases of sexual battery.

30  The first concern is that by requiring the plaintiff to prove more than the traditional battery claim requires, we inappropriately shift the focus of the trial from the defendant’s behaviour to the plaintiff’s character.  Requiring the plaintiff to prove that a reasonable person in the position of the defendant would have known that she was not consenting requires her to justify her actions.  In practical terms, she must prove that she made it clear through her conduct and words that she did not consent to the sexual contact.  Her conduct, not the defendant’s, becomes the primary focus from the outset.  If she cannot prove these things, she will be non-suited and the defendant need never give his side of the story.

31  The proposed shift to the plaintiff of the onus of disproving constructive consent runs the risk of victim blaming, against which Feldthusen and others properly warn.  It also runs the risk of making it impossible for deserving victims of sexual battery to even get their foot in the litigation door.  Consider the case of the victim of sexual assault who cannot testify to the events because of shock, loss of memory or inebriation.  If she can prove that she was sexually assaulted and identify the perpetrator through third-person evidence, should she be non-suited at the outset because she cannot prove that her conduct in the circumstances would have led a reasonable person to conclude she was not consenting?   Is it not better in such cases that the defendant be called upon to give evidence so the court can decide the case on a more complete picture of the facts?   This is what the law of battery would traditionally require. Why should we exempt the defendant because the battery is a sexual battery?

32  The proposed shift of onus runs counter to Parliament’s expressed view in the criminal context.  Although the aims of criminal law and the law of tort are not identical, it remains significant that Parliament in s. 273.2(b) of the Criminal Code, R.S.C., 1985, c. C-46, stipulates that those accused of sexual assault who seek to invoke the defence of honest but mistaken belief in consent must have taken reasonable steps in the circumstances known to them at the time to ascertain the complainant’s consent.  Parliament has thus moved to counteract the historic tendency of criminal trials for sexual assault to focus unduly on the behaviour of the complainant, and to redirect some of the focus to the defendant.  The traditional tort of battery already provides this focus in the civil domain.  That focus should be retained in my view.  To quote Sullivan, supra, at p. 563, “if the defendant is in a position to say what happened, it is both sensible and just to give him an incentive to do so by putting the burden of explanation on him”.

33  Requiring the plaintiff to disprove constructive consent seems all the more unfair because the relevant facts lie first and foremost within the defendant’s sphere of knowledge.  He alone knows whether he actually believed the plaintiff was consenting,  and if he believed she was consenting, he is in the best position to give evidence on the factors that led him to believe that.  The plaintiff, by contrast, is not in a position to produce evidence of what was in the defendant’s mind nor in as good a position to say what factors led him to that state of mind and whether he acted reasonably.  While the defendant’s particular knowledge about his state of mind regarding consent is not determinative of who bears the burden of proof regarding consent, it is one of the principles of fairness and policy that are said to influence the allocation of this burden: see J. Sopinka, S. N. Lederman, and A. W. Bryant, The Law of Evidence in Canada (2nd ed. 1999), at § 3.70; McCormick on Evidence (5th ed. 1999), vol. 2, at § 337.

34  I conclude that there is nothing about sexual battery that requires that the traditional rules of onus governing battery actions be changed.  On the contrary, placing the onus on the plaintiff of disproving consent and constructive consent seems unfairly to impose special obligations on plaintiffs who sue for sexual assault.

Damages

As explained in the case of Norberg v. Wynrib, [1992] 2 SCR 226, the Supreme Court explained that actual damages, general damages, aggravated damages, and punitive damages, may arise in a battery case.  Specifically, the Supreme Court stated:

I begin by noting that the battery is actionable without proof of damage.  Moreover, liability is not confined to foreseeable consequences.  Aggravated damages may be awarded if the battery has occurred in humiliating or undignified circumstances.  These damages are not awarded in addition to general damages.  Rather, general damages are assessed "taking into account any aggravating features of the case and to that extent increasing the amount awarded":  see N. (J.L.) v. L. (A.M.) (1988), 47 C.C.L.T. 65 (Man. Q.B.), at p. 71, per Lockwood J.  These must be distinguished from punitive or exemplary damages.  The latter are awarded to punish the defendant and to make an example of him or her in order to deter others from committing the same tort; see Linden, Canadian Tort Law (4th ed. 1988), at pp. 54-55.  In Vorvis v. Insurance Corporation of British Columbia, 1989 CanLII 93 (SCC), [1989] 1 S.C.R. 1085, at pp. 1107-8, McIntyre J. thus set forth the circumstances where the defendant's conduct would merit punishment:

. . . punitive damages may only be awarded in respect of conduct which is of such nature as to be deserving of punishment because of its harsh, vindictive, reprehensible and malicious nature.  I do not suggest that I have exhausted the adjectives which could describe the conduct capable of characterizing a punitive award, but in any case where such an award is made the conduct must be extreme in its nature and such that by any reasonable standard it is deserving of full condemnation and punishment.

Although aggravated damages will frequently cover conduct which could also be the subject of punitive damages, as I noted, the two types of damages are distinguishable; punitive damages are designed to punish whereas aggravated damages are designed to compensate.  See Vorvis, at pp. 1098-99.

An award of damages should reflect the nature of the assault.  In R. v. McCraw, 1991 CanLII 29 (SCC), [1991] 3 S.C.R. 72, this Court noted that a sexual assault results in a greater impact on the complainant than a non-sexual assault.  Given that one can obtain considerable damages for an assault of a non-sexual nature, the appellant, in my opinion, is entitled to significant aggravated damages for the indignity of the coerced sexual assault.  For example, in Stewart v. Stonehouse, 1926 CanLII 114 (SK CA), [1926] 2 D.L.R. 683 (Sask. C.A.), the defendant was found liable for grabbing the plaintiff by the nose even though there was no evidence that the plaintiff was physically injured.  The court held that the plaintiff could recover substantial damages for injury to his personal dignity.  Clearly the indignity of a sexual assault outweighs the indignity of having one's nose pulled.  In McCraw, supra, Justice Cory stated, at p. 85, that "[i]t is hard to imagine a greater affront to human dignity" than non-consensual sexual intercourse.  Although this statement was made in the context of rape, it has relevance to the circumstances at issue here as well.

Summary Comment

The tort of battery may occur in various ways referred to as general battery, medical battery, and sexual battery.  Defences to allegations of battery include proof of lack of physical contact, lack of intentional physical contact, self-defence, and consent.

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