There are several individual nominate torts dealing with the intentional interference with the person. Each tort protects the plaintiff from the intentional interference of a discrete personal interest such as bodily security (battery), freedom from threats of violence (assault), liberty (false imprisonment and malicious prosecution), psychological security (intentional infliction of nervous shock), and privacy (the tort of invasion of privacy). A broad protection of the plaintiff’s personal integrity and autonomy is achieved by this congregation of torts, each of which has its own elements of liability.
A direct, intentional, and physical interference with the person of another that is either harmful or offensive to a reasonable person is a battery.5The tort recognizes a person’s right to bodily integrity and personal security. Freedom from physical interference is so highly valued that battery is actionable without proof of damage.6Most of the cases of battery deal with intentional interference that is harmful to the plaintiff. It is a battery to punch, stab, or shoot a person. It is also a battery to interfere physically with another person in a way that is offensive to an ordinary sense of dignity and honour. It is a battery, for example, to cut a person’s hair, to spit on a person, to throw a cream pie in a person’s face, to push a person away rudely, to take a person’s fingerprints, or to hit a person with a snowball. A medical examination and any intimate or sexual contact are also batteries and are actionable unless there is some justification such as the consent of the plaintiff.
Deliberate physical interference that is neither harmful nor offensive is not a battery. It is not, therefore, a battery to tap a person on the shoulder to get her attention or to give a person a congratulatory pat on the back. The status of borderline conduct such as an unsolicited hug or an uninvited social kiss on the cheek depends upon the relationship between the persons, the surrounding circumstances, and the shifting tides of social convention and propriety.
Actual bodily contact is not essential to establish a battery. To grab a person by her clothing or to snatch something from the plaintiff’s hand is sufficient. There is not a great deal of authority on the applicability of battery to intangible interference with the person such as being X-rayed, receiving laser treatment, or being subjected to ultraviolet light in a sun-tanning salon, but there is no policy reason to withhold the protection of the battery action from these modern intrusions on one’s personal integrity.7The plaintiff does not need to be aware of the battery at the time that it takes place. An inappropriate touching or sexual assault of a plaintiff, who is unconscious as a result of illness, intoxication, or an anaesthetic, is actionable as a battery.
Battery is a product of the ancient writ of trespass to the person, a central characteristic of which was the need to prove that the plaintiff’s
injury was caused by a direct act. Directness remains an essential requirement for liability not only in battery but in all the intentional torts that trace their origin to the writ of trespass (battery, assault, false imprisonment, trespass to land, and trespass to chattels). In battery, the defendant must directly interfere with the body of the plaintiff.8It is not, therefore, a battery to put poison in a person’s food or to lay a trap for a person. In those situations, the interference with the plaintiff is not sufficiently immediate upon the defendant’s act. Indirect intentional acts probably remain independently actionable under a residual and innominate tort. There is little modern justification for this dichotomy between direct and indirect acts and there are some indications that Canadian courts may, in due course, follow the lead of the American courts and jettison this historical baggage.
A further characteristic of the tort of battery, and the other intentional torts with origins in the writ of trespass, is that, in contrast to the tort of negligence, the burden of proof in respect of the wrongfulness of the defendant’s conduct is on the defendant.9The plaintiff need only prove that the defendant directly interfered with his person in a harmful or offensive way. The defendant then carries the burden of proof that his conduct was neither intentional nor negligent or that some legally recognized defence applies. This reverse onus is justified by the direct causal link between the defendant’s antisocial conduct and the violation of the plaintiff’s right to personal autonomy. In such circumstances the defendant may fairly be required to establish that the loss was caused without intention or fault.10The rule that the defendant carries the burden of proof to disprove that his conduct was intentional or negligent identifies a further historical anomaly of the tort of battery. A person who is injured by a direct negligent act may sue either in battery or in negligence. Modern practice is to sue in negligence and to confine battery to intentional acts, but plaintiffs who anticipate difficulty in proving negligence may resort to the technicalities of the tort of battery to secure a more favourable allocation of the burden of proof. It is used most often in shooting and sporting accidents.11It may not, however, be used in automobile accident cases where negligence is the only cause of action.12
The defendant’s liability in battery is not restricted, as it is in negligence, to the foreseeable consequences of his act. The defendant is liable for all the consequences of his battery.13This broader rule of remoteness of damage, which is probably applicable to all of the intentional torts, is justified on the ground that the defendant’s conduct, being intentional, carries the stain of moral culpability, which warrants a more extensive responsibility.
The most frequently committed batteries in modern society are acts of criminal violence. Tort litigation, however, holds little promise of compensation for the victims of criminal violence. Many offenders are not apprehended and those who are apprehended are often not worth suing. This has led to the introduction of criminal injuries compensation schemes in all provinces. Under these schemes, some victims of criminal violence receive modest no-fault benefits including an indemnity for related expenses and lost income and compensation for non-pecuniary losses. These schemes do not displace tort liability. They provide an alternative and supplementary compensatory mechanism without extinguishing the tort rights of the victim.
There is one area of criminal violence, however, where there has been a resurgence in the use of the battery action. The survivors of sexual assault, spousal abuse, incest, and child abuse are making increasing use of the tort of battery to hold offenders accountable for their wrongdoing. This is particularly common in respect of intra-family abuse and the abuse of children in institutional, custodial settings. In those situations, there is no problem in identifying the offender and some of the offenders (or their employers) may be able to pay an award of damages. It is important to note, however, that financial compensation is not always the primary motivation for this kind of litigation. The plaintiff may be more interested in securing the accountability of the offender and a public recognition of the extent of the defendant’s wrongdoing. There may also be a hope that a public confrontation with the defendant and a judicial recognition of the defendant’s responsibility will provide some therapeutic benefits14and promote the plaintiff’s psychological and emotional recovery from the abuse.15These potential advantages of an action in battery must, however, be balanced against the disadvantages, which include the stress and expense of litigation,
the emotional burden of recounting and being cross-examined in open court on the wrongdoing of the defendant, and the difficulties in securing payment of the judgment. The survivor of the abuse needs to make an informed decision, after consultation with legal advisers and therapists, as to whether or not litigation is in her best interests.
In cases of incest and other forms of sexual and physical abuse of young children, short limitation periods may present a procedural obstacle to the plaintiff’s claim. Most limitation legislation postpones the running of time until the age of majority but the claims of the survivors of childhood abuse may not be brought until much later in adulthood when the true extent of the emotional and psychological harm caused by the abuse is apparent. At that time, limitation periods may, at first sight, appear to have extinguished the cause of action.16This issue was addressed by the Supreme Court in M.(K.) v. M.(H.),17a case of childhood incest. The Court held that the cause of action, from which time runs, does not arise until the survivor of the incest has a complete and full understanding...