C. Intentional interference with the person

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.

1) Battery

A direct, intentional, and physical interference with the person of another that is either harmful or offensive to a reasonable person is a battery. [Note 5: A useful discussion of the tort of battery is found in Bettel v. Yim (1978), 20 O.R. (2d) 617 (Co. Ct.) [Yim].] The 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. [Note 6: The technical term is that the tort is actionable per se.]

Most 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. [Note 7: Purists will point out that battery applies only to a physical interference with the person.] The 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. [Note 8: 1 Linden, above note 3 at 43 states that an indirect act is now actionable in battery. L.N. Klar, Tort Law, 2d ed. (Scarborough, Ont.: Carswell, 1996) at 42-43 takes the more conventional view.] It 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 no 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. [Note 9: 1 Cook v. Lewis, [1951] S.C.R. 830.] The 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 reflects the gradual evolution of battery from a tort of strict liability at the opening of the nineteenth century to a fault- based tort at the end of the century. The evolution will be complete when the burden of proof of the wrongfulness of the defendant's conduct in battery is allocated to the plaintiff in the same way as it is in negligence.

The 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. [Note 10: Ibid.] It may not, however, be used in automobile accident cases where negligence is the only cause of action. [Note 11: Klar, above note 8 at 47.] There is little justification for varying the burden of proof by labelling a typical negligence action as an action in battery and it is unlikely that this paradox will survive future scrutiny by the Supreme Court.

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. [Note 12: See, for example, Yim, above note 5.] This 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 benefits [Note 13: See B. Feldthusen, "The Civil Action for Sexual Battery: Therapeutic Jurisprudence?" (1993) 25 Ottawa L. Rev. 203.] and promote the plaintiff's psychological and emotional recovery from the abuse. These 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. [Note 14: The time limit for a battery action is often two years from when the cause of action arose.] This issue was addressed by the Supreme Court in M.(K.) v. M.(H.), [Note 15: [1992] 3 S.C.R. 6.] a 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 of both the wrongfulness of the defendant's act and the causal relationship between those acts and the psychological and emotional consequences of the acts in adulthood. Furthermore, the Court held that such complete knowledge is not likely to be acquired by the plaintiff in the absence of some form of professional therapy or counselling. This discoverability principle points the way to addressing some of the limitation problems in this area, until legislative amendment either provides more appropriate time limits or dispenses entirely with time limits for the survivors of incest and abuse. [Note 16: See, for example, British Columbia Limitation Act, R.S.B.C. 1996, c. 266, s. 3(4)(k), which declares that there is no limitation period in respect of sexual assault against a minor.]

2) Assault

The word assault is commonly used to describe what in tort law is a battery. Strictly speaking, however, an assault in tort law is the threat of an immediate battery. Any direct and intentional act that causes a person to apprehend immediate harmful or offensive bodily contact is an assault. It is, for example, an assault to point a gun at a person and threaten to shoot him. Only when the person is shot is there a battery completing the couplet "assault and battery." Assault and battery are, however, independent causes of action. Where a defendant does not execute a threat of imminent contact, there is an assault but no battery. Where the defendant commits a surprise battery from behind, there is no assault because the plaintiff did not anticipate the battery. It must, however be observed that these technical distinctions are not always honoured by judges and lawyers and reference to a battery as an assault is not infrequent.

The plaintiff must actually apprehend an immediate battery and that apprehension must be reasonable in the circumstances. There is, however, no requirement that the plaintiff be afraid. The tort protects both the brave and the fearful. There is also no need to prove any physical damage. The apprehension of imminent contact is enough.

Threats of future violence will not suffice. There must be a threat of immediate bodily contact. It is not, therefore, an assault to shake your fist at a person from a distance or to threaten to beat him up tomorrow. It is not always easy to draw the line between immediate and future threats. The famous case of Stephens v. Myers [Note 17: (1830), 4 C. & P. 349, 172 E.R. 735 (N.P.).] is illustrative. The defendant advanced on the plaintiff in a threatening manner at a parish meeting. The defendant was intercepted and restrained when he reached the chair next but one to the chair on which the plaintiff was sitting. The Court found that an assault had taken place.

There are a number of subsidiary rules in respect of assault that have been established over the centuries, some of which are in need of re-evaluation and others of which have now been discarded. It has been held, for example, that mere words cannot amount to an assault. This must be doubted in the face of modern communications and technology. There would seem to be no reason to deny a remedy when a person is phoned and told that there is a bomb in her house and it is about to be detonated. It has also been said that passive conduct cannot amount to an assault. It is true that passive conduct does not normally generate an apprehension of immediate violence but there does not seem to be any reason why a person who walks into her home to find a stranger sitting passively with a gun pointed at her should not have a remedy. It was also suggested at one time that the defendant must have the means of carrying out the threat so that threatening to shoot a person with an unloaded gun was not an assault. This view is now thoroughly discredited and liability will be imposed so long as the plaintiff did not know that the gun was unloaded. All of these situations should be resolved by reference to the intent of the defendant and the reasonableness of the plaintiff's apprehension of an immediate battery rather than by the application of rules derived from ancient decisions on their unique facts. [Note 18: This approach was recently taken by the House of Lords in a case of criminal assault. In R. v. Ireland (1997), [1998] A.C. 147 (H.L.), it was held that silent telephone calls may be an assault if they give rise to a fear of imminent personal violence.]

There has been much written about conditional threats. This flows from the old case of Tuberville v. Savage [Note 19: (1669), Mod. Rep. 3, 86 E.R. 684.] where a man placed his hand on his sword and said, "If it were not assize time, I would not take such language from you." The Court held that this was not an assault. The judgment is clearly correct because the reasonable meaning of the words is, "You are safe from violence because the judges are in town." The case was occasionally misinterpreted to suggest that a conditional threat could not be an assault. That view has been repudiated. "Give me your wallet or I will kill you" is a conditional threat but it, nevertheless, is intended to create an apprehension of immediate violence. The modern view is that a threat of violence coupled with a condition that the speaker has no right to impose, and compliance with which is essential to purchase one's safety, is an assault. There is, for example, an assault when, in the course of a domestic dispute, the defendant spouse declares, "I will kill you if you take me to court." [Note 20: Holcombe v. Whitaker, 318 So.2d 289 (Ala. 1975).] The defendant has no right to require the plaintiff to buy her safety by giving such an assurance. It is a threat of immediate violence because the defendant is attempting to secure an immediate promise that she will not take him to court in the future and violence may reasonably be expected if the assurance is not given. It is less reasonable to interpret it as a threat of future violence that will occur only when the court proceedings are filed.

The award of damages for an assault that is unaccompanied by a battery is, in most cases, likely to be modest in the absence of aggravating circumstances or factors that might justify an award of punitive damages. Actions for assault are, in fact, very rare in modern times. Of much greater practical relevance is the fact that an assault justifies the use of reasonable force in self-defence and it is in this context that the issue of assault is most likely to arise.