Battery
• The dominance of “negligence” in tort law
often yields the mistaken impression that
there are no other causes of action in
personal injuries outside of negligence. The
tort of battery is one branch of tort law that
parallels negligence law in personal injury.
• The writ of trespass to person, developed in
the 13th Century protects individuals from
personal injuries, with or without negligence.
Battery
• The tort of battery protects the security
of the human body from offensive touch
or violation by another person.
• The contact need not be physically
harmful to the victim.
• The contact need not cause personal
or physical injury.
• What is protected is a person’s right to
autonomy over his/her body.
Battery
• To be actionable, the offensive contact
with another person’s body must be
intentional or negligent.
• In consequence, the tort of battery is
divided into two branches, namely,
• Intentional battery; and
• Negligent battery.
Intentional Battery
• An act of battery is said to be intentional when
the dft desired the consequences or ought to
have been substantially certain that the
consequences would flow from the act. (Klar,
at 41).
• Under the second leg of the definition, if the
consequences of the offensive contact are
tortious, intention is inferred, even if the dft
claims or believes otherwise.
Intentional Battery
• It is NOT a legal requirement that the dft must
have INTENDED to hurt or injure the ptf.
• It is a paramount criterion that the physical
contact must have resulted DIRECTLY from
the dft’s act. The test is: “Would the result
have occurred but for the intervention of
another independent agency.” It is irrelevant
that the dft intended to hit or injure another
specific person instead of the victim. As long
as physical contact with SOMEONE occurred,
the tort of intentional battery is made out.
Intentional Battery
• Some scholars have strongly argued
that the “direct” and “indirect”
dichotomy serves no useful purpose. In
their opinion, “whether ‘A’ gave
poisoned meat to a dog or left
poisoned meat for the dog to eat” is of
no significance. The sequence of
events is immaterial, what ought to
matter is the unlawful which tort law
seeks to sanction.
Intentional Battery
• Another element of intentional battery is that
the physical conduct must be “offensive” in
nature. Physical contacts which are
unavoidable are not “offensive” contacts.
Similarly, trivial contacts, unless done in a
hostile manner, do not constitute battery.
• The test for offensive or friendly contact is an
objective one. What would the reasonable
person consider to be a acceptable?
Intentional Battery
• The last requirement is that the contact
must be physical. This only requires
that the ptf’s body be touched either by
an object propelled by the dft or by the
dft personally.
• Query: if I kick your bicycle tire and you
fall off, breaking your arm, is it battery?
Bettel v. Yim
• Ptf and his friends threw lighted
matches into the dft’s store. The dft
grabbed hold of the ptf and shook him
hard. The dft’s head injured the ptf’s
nose. Dft intended to extract a
confession from the ptf, but not to injure
him. The Ontario County Court held
that the dft was liable in damages for
battery.
Sexual Battery
• The tort of sexual battery occurs when there is
UNWANTED sexual contact. For the tort to be
made out, ptf must prove that the contact was:
• Sexual in nature;
• Intentional;
• Direct;
• Offensive;
• and physical.
• The variety of sexual battery covers wrongful
sexual contact between children and their
parents; children against their relatives;
Sexual Battery
• women against their dates; and clients
against professionals.
• Sexual battery is distinct from the tort of
sexual harassment.
• Can a kiss be a battery?
• If someone grabs your buttocks or breasts,
not to steady themselves in a fast-moving
bus, but for “enjoyment”, is that sexual
battery? See Non-Marine Underwriters v.
Scalera
Negligent Battery
• This is the second type of battery and
arises when the dft causes a direct,
offensive, physical contact with the ptf
as a result of negligent conduct.
• The test is one of foreseeability. It is
immaterial that the injury was
unintended.
• There are no policy reasons or logic
behind the alleged distinction between
negligence and negligent battery
The Defence of Consent
• Consent is a defence to the tort of
battery. Persons who consent to an
interference with their body cannot sue
in battery.
• In order to constitute a valid defence, a
consent must be FREE, FULL, and
INFORMED.
Age of Consent
• There is no specific “age of consent” at
common law. The test is whether the
person, child or adult, has sufficient
intelligence and understanding to make
up his/her own mind. If a child does not
meet this test, the consent of the
parents of that child will be required.
“apparent” and “real” consent
• In situations that smack of exploitation of
unequal power between the parties, consent
may be impugned. In Norberg v. Wynrib, the
SC held that there was no valid consent by
the ptf when she agreed to have sex with her
doctor in return for addictive prescription
drugs. (Dr. Wynrib, in his 70s “if you are good
to me, I will be good to you.”) For consent to
be invalidated under such circumstances,
there must be unequal power and exploitation
of that inequality.
Consent and Public Policy
• Similarly, in certain circumstances, courts
may, in the interest of public policy, invalidate
a consent. In M. v. K., the court rejected the
defence of consent allegedly given by the ptf
to sexual acts b/w her and her stepfather
when she was 15. However, in Lyth v. Dagg,
initial sexual acts between a 16 yr old and her
male teacher were deemed unconsensual,
but their subsequent r/ship was held to be
consensual.
Consent and Sexual Battery
• Courts are often conflicted on whether or not
to hold that ALL sexual contacts between
persons who are in positions of authority and
those under their influence lack valid consent.
• The predominant and indeed, better
approach, is to treat each case on their facts,
to examine the reality of the consent, rather
than assume that there is always sexual
exploitation in all cases.
Consent Obtained by Deceit
• Apart from improper exploitation of power
imbalance between parties, a problematic
question is whether deceit or fraud vitiates
consent. Interestingly, this issue arises a lot
in cases of sexual battery.
• For example, in Ginsburg v. Ginsburg, ptf
discovered that her husband was bisexual.
She was concerned that she could have
contracted the HIV virus from him. She sued
for sexual battery. Should she succeed?
Consent Obtained by Deceit
• In R v. Cuerrier, the accused who was HIV
positive, had unprotected sex with two
complainants without informing them of his
HIV status. The complainants alleged that if
they had known of his HIV status, they would
not have engaged in unprotected sex with
him. In the reasoning of the court, consent of
the two complainants was vitiated by fraud.
For fraud to vitiate consent, the fraud must go
to the nature and quality of the act, not to a
collateral matter. See Reibl v. Hughes
CONSENT
• Consent obtained under duress is no
consent.
• Persons who have been deprived of
their freewill or ability to reason cannot
give valid consent.
• There is no fixed form for obtaining
consent. Consent may be expressly
contained in words or writing.
Alternatively, it may be implied.
IMPLIED CONSENT
• Where parties engage in physical activities
that pose obvious risks of contact, it is implicit
that the parties have consented to any
eventual battery. In Wright v. Maclean, the 12
yr old ptf was participating with some other
boys in a game that involved throwing mud
balls at each other. He was injured by a mud
ball thrown by a 14 yr old. The court held that
the suit for battery was unsustainable
because ptf had impliedly consented to the
game with its obvious risk of injury.
Implied consent and sports
• It is well-known that physical contact
sports involve violence. Be it soccer,
hockey, boxing,wrestling, rugby, etc, a
degree of violence otherwise
intolerable in daily life is permitted.
• What is the test for determining when
battery has occurred in the sports
context?
Exceeding Consent
• The general test is whether the alleged
contact goes beyond that which is permitted
by the rules of the game or generally tolerated
by the participants.
• Mere infraction of the rules of the game, when
within reasonable limits, does not invalidate
the defense of consent.
• It seems that infractions of the rules with the
intention of inflicting serious injury or borne
out of malice exceed implied consent.
Agar v. Canning
• The dft hockey player hit the ptf with his stick
after being hooked by him.
• “the conduct of a player in the heat of the
game is instinctive and unpremeditated and
should not be judged by standards suited to
polite social intercourse.”
• “But injuries inflicted in circumstances which
show a definite resolve to cause serious injury
to another, even when there is provocation
and in the heat of the game, should not fall in
the scope of implied consent.”
Consent in medical context
• Medical treatment which involves physical
interference with a patient’s body constitutes
battery UNLESS it is done with the consent of
the patient.
• Valid consent must relate to the treatment;
must be voluntary; must be devoid of fraud
and misrepresentation and above all, must be
informed.
• Regardless of the skill and talent shown,
medical treatment without the patient’s
informed consent constitutes battery.
Health Care Consent Act
• Under s. 11 of the Ontario Health Care
Consent Act, informed consent must relate to
the following:
• The nature of the treatment;
• The material risks of the treatment;
• The material side effects of the treatment;
• Alternatives courses of action;
• The likely consequence of not having the
treatment.
INFORMED CONSENT
• The doctrine of INFORMED CONSENT
requires that the consent of the patient is only
valid if given AFTER s/he 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 the facts provided by the
doctor.
Consent in medical context
• Consent to medical treatment can be
oral, written, express, or implied. See
Nelitz v. Dyck. For example, a person
who shows his arm or naked buttocks
to a doctor at an inoculation clinic has
impliedly consented to the inoculation.
• Where there is consent to a surgical
operation, it is implied that other
necessary procedures have been
consented to as well.
Consent in medical context
In emergencies, where the patient is unable to
give consent, consent may be presumed. This
is not really a presumption of consent per se,
but a privilege granted to doctors by law. For
this privilege to arise, certain conditions must
exist, namely, the patient must lack the
capacity to make a decision; unavailability of
someone legally authorized to act as agent for
the patient; time must be of the essence; and
under the circumstances, a reasonable
person would consent or the probabilities are
that the patient would consent.
Malette v. Shulman
Religion & medical consent
• Ptf, a member of the Jehovah’s Witnesses
was injured in a vehicle accident. She was
semi-conscious when she arrived at the
hospital. Dft doctor who treated her knew from
the card in her purse that her religion forbade
blood transfusion under all circumstances.
Despite that, dft made the determination that
blood transfusion was necessary and
proceeded to administer one. Ptf recovered
from her injuries and sued, inter alia, for
battery. The lower court found for her.
Malette v. Shulman
• On appeal, the CA held that regardless
of the excellent skills of the doctor, and
the benefit to the patient, an operation
carried out without the patient’s
informed consent is an act of battery. A
doctor is not free to disregard a
patient’s advance instructions any more
than he would be free to disregard
instructions given at the time of the
emergency.
Marshall v. Curry
• Ptf underwent surgery to cure a hernia and
while under the influence of an anesthetic, the
dft without the knowledge or consent of the ptf
removed the ptf’s left testicle. Ptf sued
alleging battery and exceeding of consent.
The dft argued that removing the hernia was a
necessary part of the operation to cure the
hernia. The diseased state of the testicles
could not have been foreseen before the
operation was begun. The court held that in
the circumstances, removal of the testicles
was a reasonable course of action.
Extension of consent
• Unless it is not reasonable to do so in the
circumstances, a health practitioner is entitled
to presume that consent to a treatment
includes;
• Consent to variations or adjustments in the
treatment, if the nature, expected benefits,
material risks and material side effects of the
changed treatment are not significantly
different from the nature, expected benefits,
material risks and material side effects of the
original treatment, and
Extension of Consent
• Consent to the continuation of the
same treatment in a different setting, if
there is no significant change in the
expected benefits, material risks or
material side effects of the treatment as
a result of the change in the setting in
which it is administered.” See s. 12
Health Care Consent Act, 1996.