Back

The Law of Assault and Battery

December 13, 2021

Nova Scotia

,

Canada

Issue

What causes of action are available to someone who has been subjected to emotional and psychological harm by another person and what are the required elements of those causes of action?

Conclusion

The requirements for establishing the tort of intentional infliction of nervous shock as follows:

(i) An overt act, whether physical, verbal or both by the defendant;

(ii) Intent by the defendant to do that act or speak those words;

(iii) Circumstances which would lead a reasonable person in the position of the defendant to foresee a reasonable likelihood of fear or emotional upset on the part of the plaintiff; and,

(iv) Actual harm amounting to nervous shock "i.e. going beyond the kind of emotional upset needed to satisfy element (iii) . . . and going beyond, in many instances, the limits of reasonable prevision.

Where there is a malicious purpose to cause the plaintiff to breakdown mentally, there is no issue of remoteness or foreseeability, nor is there any question as to whether the actions would have caused nervous shock to a normal person. When a person knowingly exploits another's emotional and mental vulnerability thereby causing a severe and lasting mental breakdown, it is no answer to state that a normal person would not have been so adversely affected.(Boothman v. Canada)

Assault and battery can be compendiously defined as causing another person to apprehend the infliction of immediate harmful or offensive force on her person coupled with the actual infliction of that harmful or offensive force. Although a necessary element of the tort of assault and battery is intention on the part of the defendant with respect to the consequences of his wrongful act, where a plaintiff is injured by force applied directly to him by the defendant his case is made by proving this fact and the onus falls upon the defendant to prove "that such trespass was utterly without his fault".(M.(K.) v. M.(H.))

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". 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. 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. 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, the two types of damages are distinguishable; punitive damages are designed to punish whereas aggravated damages are designed to compensate. An award of damages should reflect the nature of the assault. For example, a sexual assault results in a greater impact on the complainant than a non-sexual assault.(Norberg v. Wynrib)

In Robbins v. Marshall, the plaintiff sought compensation from his former partner, of 20 years, for fraud, physical and emotional abuse. The plaintiff did not produce adequate evidence to support his claims against his former spouse. A such, the Court struck down the tort claims. The Court held the claims could only be made out if there was evidence to support them, and his evidence was unreliable.

Law

In Boothman v. Canada, [1993] 3 FC 381, 1993 CanLII 2949 (FC), the plaintiff worked as an administrator in a branch office of Canada Oil and Gas Lands with a single supervisor. The plaintiff had a history of mental health issues, which her supervisor was aware of. Her supervisor threatened her with physical harm, insulted her and swore at her. He also controlled her behaviour by not allowing her to take breaks and by requiring her to ask permission to leave the office. The Court held that the defendant was liable for causing nervous shock to the plaintiff because of the malicious intent to cause harm and willfully exploit the plaintiff's predisposition.

The Court outlined the elements of the tort intentional infliction of nervous shock as follows:

Catzman J. then went on to postulate the requirements for establishing the tort of intentional infliction of nervous shock. At page 140, he enumerates those requirements as follows:

(i) An overt act, whether physical, verbal or both by the defendant.

(ii) Intent by the defendant1*ftnote1 In the reported case the sentence reads: "Intent by the plaintiff to do that act or speak those words". It is obvious that this should read "Intent by the defendant" and therefore I have taken the liberty of writing it as such in the above quote. to do that act or to speak those words.

(iii) Circumstances which would lead a reasonable person in the position of the defendant to foresee a reasonable likelihood of fear or emotional upset on the part of the plaintiff . . . .

(iv) Actual harm amounting to nervous shock"i.e. going beyond the kind of emotional upset needed to satisfy element (iii) . . . and going beyond, in many instances, the limits of reasonable prevision.

In the case at hand, Mr. Stalinski, as had the defendant in the Timmermans case, acted in the knowledge of plaintiff's condition, but the distinguishing feature is that he deliberately exploited her condition with the view of bringing her to collapse mentally and quit her job. Not only was there general wilful injuria of the Wilkinson type, but there was also the malicious purpose to cause the plaintiff to breakdown mentally. There is accordingly no issue of remoteness or foreseeability in the present case, nor is there any question as to whether the actions of Mr. Stalinski would have caused nervous shock to a normal person. When a person knowingly exploits another's emotional and mental vulnerability thereby causing a severe and lasting mental breakdown, it is no answer to state that a normal person would not have been so adversely affected.

In M.(K.) v. M.(H.), [1992] 3 SCR 6, 1992 CanLII 31 (SCC), the plaintiff had been subjected to incestuous abuse by her father, the defendant, and sought to claim damages for psychological and emotional injuries sustained. The Supreme Court of Canada held that assault and battery can be compendiously defined as causing another person to apprehend the infliction of immediate harmful or offensive force on her person coupled with the actual infliction of that harmful or offensive force:

There is no question, of course, that incest constitutes an assault and battery, which can be compendiously defined as causing another person to apprehend the infliction of immediate harmful or offensive force on her person coupled with the actual infliction of that harmful or offensive force; see Atrens, "Intentional Interference with the Person", in Linden, ed., Studies in Canadian Tort Law (1988), at p. 392, and Fridman, Fridman on Torts (1990), at pp. 118-19. Although a necessary element of the tort of assault and battery is intention on the part of the defendant with respect to the consequences of his wrongful act, the following dictum of Cartwright J. in Cook v. Lewis, 1951 CanLII 26 (SCC), [1951] S.C.R. 830, at p. 839, concerning onus of proof of intention has not since been doubted:

. . . where a plaintiff is injured by force applied directly to him by the defendant his case is made by proving this fact and the onus falls upon the defendant to prove "that such trespass was utterly without his fault". In my opinion Stanley v. Powell rightly decides that the defendant in such an action is entitled to judgment if he satisfies the onus of establishing the absence of both intention and negligence on his part.

In the present case no evidence of the respondent's intention was adduced, since the theory of the defence was that no assault had occurred. I am therefore satisfied, based on the jury's verdict, that all of the requisite elements of assault and battery were proved. The battery is self-evident from the jury's finding of fact, and the evidence going to the respondent's pattern of conduct makes it abundantly clear that the appellant was conditioned to be alert to the circumstances which presaged the battery, such that she had a reasonable apprehension of imminent offensive contact, thereby constituting an assault.

In Norberg v. Wynrib, [1992] 2 SCR 226, 1992 CanLII 65 (SCC), the Supreme Court of Canada held that battery, causing emotional and psychological injuries, 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". 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. Although aggravated damages will frequently cover conduct which could also be the subject of punitive damages, the two types of damages are distinguishable; punitive damages are designed to punish whereas aggravated damages are designed to compensate. An award of damages should reflect the nature of the assault. For example, a sexual assault results in a greater impact on the complainant than a non-sexual assault:

The appellant asks for an award of damages which includes the following: (1) compensatory damages for wrongful supply of drugs and prolongation of addiction, (2) aggravated damages for the remorse, shame, damaged self-confidence and emotional harm caused by the continued supply of drugs and the sexual exploitation of the appellant, and (3) punitive damages for the respondent's breach of trust. The courts below were unwilling to award damages. Only Locke J.A., dissenting, would have awarded $1,000 nominal damages for the respondent's negligence which prolonged the appellant's chemical dependence. I am concerned here, however, with damages for the sexual assault, which I have held constitutes the tort of battery at common law.

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.

In Robbins v. Marshall, 2019 NSSC 168 (CanLII), the plaintiff sought compensation from his former partner, of 20 years, for fraud, physical and emotional abuse. Here, the plaintiff did not produce any evidence to support his claims against his former spouse. A such, the Court struck down the tort claims:

[115] Mr. Marshall argues that he should be compensated for his efforts and losses and for the multiple wrongs done to him. He is convinced that Ms. Robbins is planning bankruptcy to defeat the judgment that will be against her. He says that his money should come in the form of damages for intentionally inflicted bodily harm, the recovery of a debt under a support agreement and recovery of a liability arising out of fraud, embezzlement, misappropriation or defalcation while acting in a fiduciary capacity. He says that under s. 178(1) of the Bankruptcy Act a discharge would not release Ms. Robbins from such an order.

[116] Mr. Marshall’s claims have been framed as torts for that reason. He says that he was assaulted, and that Ms. Robbins misappropriated money from him, in various ways. Mr. Marshall was not a credible witness. I do not accept his evidence that he was assaulted and abused or that Ms. Robbins defrauded him or misappropriated money from him. Her taking of the truck was not detinue or conversion. It was her truck. She was making payments on the truck. It was registered to her. There was no trust arrangement. He was paying child support and not compensating her for the payments that she was making on he truck. I do not accept his evidence that there were items of value in the truck.

[117] I do not accept Mr. Marshall’s evidence with respect to trespass to the real property at Victoria Street. The parties disputed who owned the property. The situation was not analogous to a tenancy. It was a property owned by Ms. Robbins. She had a right to be on it. Even if it were a technical trespass the damages would be insignificant in the context of this matter.

[118] Each of Mr. Marshall’s tort claims can be made out only if there is evidence to support them. His evidence is unreliable and there is no other evidence to support the torts as claimed.

Alexsei publishing date:
80