Battery

February 7, 2018 | Author: Anonymous | Category: Social Science, Law, Tort Law
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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.

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