3.

Assault and Battery

Key Terms
Remittitur: A ruling by a judge (usually upon motion to reduce or throw out a jury
verdict) lowering the amount of damages granted by a jury in a civil case. The term
is sometimes used where a judgment exceeds the amount demanded by the
prevailing party, or for a reduction in awarded damages that are considered to be
excessive by the court.

Annulled (marriage): A legal procedure to declare a marriage null and void (of no
legal effect). Unlike divorce, it is usually retroactive, meaning that an annulled
marriage is considered to be invalid from the beginning almost as if it had never
taken place.

Directed/Direct Verdict: A defence motion made at the closing of the

prosecution's/plaintiff's case but before the defence is to call any evidence,
requesting the dismissal of the case on the basis that the essential elements of the
offence are not made out.

Assault (tort): The tort of acting intentionally, that is with either general or specific
intent, causing the reasonable apprehension of an immediate harmful or offensive
contact (in another person's mind). Assault requires intent (it is considered an
intentional tort, as opposed to a tort of negligence). Actual ability to carry out the
apprehended contact is not necessary.

It is not uncommon for the courts to conflate the torts of assault and battery. If
the assault is a prelude to a battery, the court may ignore or only superficially
discuss the assault.

Battery (tort): The direct and intentional infliction of harmful or offensive contact
upon the body of another. It is a tort that falls under the umbrella of "trespass to the
person". Unlike assault, in which the fear of imminent contact may support a civil
claim, battery involves an actual contact. While the defendant must intend to make
physical contact, they do not need to intend to harm or offend the plaintiff.

In Canada, the plaintiff is not required to prove that they did not consent to the
physical contact. Instead, if the plaintiff consented to the physical contact, it is

3. Assault and Battery 1

 raised as a defence.

Ex turpi causa: "From a dishonourable cause an action does not arise" is a legal
doctrine which states that a plaintiff will be unable to pursue legal relief and
damages if it arises in connection with their own tortious act; similar to the principle
of unclean hands in contracts law, but more tied to illegality as opposed to merely
unethical behaviour.

Damages

Compensatory Damages: Puts the plaintiff back into the position they’d be in if
the tort hadn’t happened.

Pecuniary Damages: Financially quantifiable damages.

Special Damages: Compensate a plaintiff for financial aspects of their

loss.

General Damages: Compensate a plaintiff for non-monetary aspects of

their loss, such as pain and suffering.

Non-Pecuniary Damages: No monetary equivalent; damages that are not

economic in nature, yet still affect a person's lifestyle and enjoyment of life.

Nominal Damages: When the plaintiff is right, but the judge doesn’t have a
calculation for what has been lost. Usually very small damage award.

Punitive Damages: Damages used to punish the defendant; do not require

proof of injury.

Aggravated Damages: Damages awarded when the way in which the incident
occurred inflicted additional harm or distress to the plaintiff — aggravated
damages are compensatory (not punitive). Aggravated damages require proof
of injury while punitive damages do not.

Aggravated damages are sometimes confused with punitive damages.

Although both involve the court showing disapproval for the defendant’s
conduct, aggravated damages are compensation for actual harm suffered,
while punitive damages are awarded on top of full compensation.

3. Assault and Battery 2

 Holcombe v. Whitaker 318 So.2d 289 (1975)
SC 909 *Alabama SC*
FACTS

Plaintiff (Whitaker) met defendant (Holcombe, a medical doctor) in 1970, began

to date, and got married in Las Vegas shortly after. They returned to
Birmingham and lived together as a married couple for one month. Holcombe
then told Whitaker that he was still married to his first wife. Whitaker asked
Holcombe to either have their marriage annulled, or to divorce his first wife and
marry her legally. Holcombe refused to do either.

The relationship quickly deteriorated. Holcombe moved out, but would return
from time to time. After Whitaker asked Holcombe repeatedly to get an
annulment or divorce, Holcombe told her that he would kill her if she ever took
him to court.

Whitaker testified that she then began receiving phone calls from Holcombe
and his friend (as well as anonymous calls) at all hours of the night. Whitaker
changed apartments and got an unlisted phone number. Her new apartment
was subsequently broken into, and iodine was used to soak her clothing. Phone
calls also resumed in the new apartment.

PROCEDURAL HISTORY

Whitaker filed a suit against Holcombe in September 1971. In October,

Holcombe went to Whitaker's apartment (banged hard and repeatedly on her
door and tried to pry it open) and once again threatened her by saying that he
would kill her if she took him to court.

Whitaker sued Holcombe for fraud and misrepresentation, and for assault. She
claimed that as a proximate consequence of the fraud, Whitaker was injured
and suffered the following damages:

"She suffered grievous mental anguish and humiliation, her nervous system
and emotional system was permanently injured"

Holcombe argued that telling Whitaker multiple times that he would kill her if
she ever took him to court did not constitute assault, because it was merely

3. Assault and Battery 3

 a conditional threat of violence and because no overt act was involved.

At trial, the jury awards Whitaker $35,000. Holcombe filed a motion for
judgment notwithstanding the verdict or a new trial. Holcombe's motion was
denied, but the trial court conditioned its overruling of Holcombe's motion by
requiring a remittitur of the plaintiff of $15,000 (meaning the jury award was
decreased). Holcombe appealed, and Whitaker cross-appealed.

ISSUES

1. Does the tort of assault include threats of murder/homicide where there is no

overt physical act? (Yes)

HOLDING

Appeal denied; judgement affirmed; Holcombe loses (however, Whitaker's

cross-appeal concerning the remittitur is also denied, so she only gets the
adjusted lower jury award.)

RATIO

1. When threats of murder are accompanied by loud and repeated banging on the
plaintiff's door and attempts to illegally enter the plaintiff's domicile, and when
such behaviour is accompanied by an extensive program of harassment and
intimidation, such threats can be determined to constitute the tort of assault.

a. Prof's version: If actions require some type of defence or they lead to harm
and there are threatening words, then assault occurs.

ANALYSIS

Assault is an intentional, unlawful offer to touch another person in a rude or

angry manner as to give the party alleging the assault a well-founded fear of
imminent battery.

The court found that evidence given by Whitaker of Holcombe pounding on her
door, making every effort to get into her apartment, and threatening to kill her if

3. Assault and Battery 4

 she persisted on taking him to court (remember, this was both before and after
she started proceedings against him; the door banging only in the latter case)
was sufficient to arouse an apprehension of harm or offensive conduct in
Whitaker. The question as to whether Holcombe had the apparent ability to
follow through with the threatened act was a question of fact for the jury to
determine. Therefore, assault had taken place.

Holcombe also argued that the anonymous nighttime phone calls subsequent to
the break-in should not have been entered into evidence, since the relevant
jurisprudence dictates that such evidence should not be admitted into evidence
unless the identity of the alleged speaker is established. However, the court
found that under the specific circumstances of this case, the inclusion of such
evidence would not be sufficient to reverse the trial judge's decision or order a
new trial.

"Dr. Holcombe and the lady with whom he was then living began a program
of harassment, intimidation, and threats, which could have been construed
to kindle fear in the plaintiff and to achieve what apparently the doctor
wanted—to keep her from doing anything about the void marriage, which
he, according to the jury's verdict, had lured her into. According to the
testimony offered on behalf of the plaintiff, the doctor succeeded in his
efforts to frighten the plaintiff. She was fearful enough to ask friends to stay
with her at night; never left the apartment alone after the threats on her life;
had her brother-in-law nail the windows closed after the break-in of her
apartment; and told one of her friends that she was afraid there might be
poison in her coffee. We believe this testimony was relevant under the
circumstances of this case. The defendant threatened to kill the plaintiff if
she did something she had a legal right to do. We think the evidence of
what occurred subsequent to his threats and emanating from them was
relevant to the issues being tried.

CONCLUSION/CLASS COMMENTARY

Prof: it's significant that Holcombe repeatedly said he was going to kill
Whitaker, and that he was clawing on the door (imminent + danger are two
points of emphasis to think about for assault, but both concepts are debatable)

3. Assault and Battery 5

 Prof wants us to compare this case with Greaves

Police v. Greaves [1964] NZLR 295

*Wellington NZ Court of Appeal*
FACTS

Note: this is a criminal case that inspired tort of assault

A woman called the police after she was attacked by the respondent (Greaves),
who also resided in her house. When police arrived, Greaves came to the door
drunk and with a carving knife at waist height, pointing the knife at the lead
officer and telling him (twice) not to move any close, or he would "get this
straight through [his] guts".

PROCEDURAL HISTORY

Greaves was convicted of assault in the Magistrate's Court, but the conviction
was quashed in the Supreme Court on the grounds that the threat made by
Greaves was conditional, and did not constitute assault. The prosecutor
appealed to the CoA.

ISSUES

1. Whether or not an assault was committed. (Yes)

a. It had already been recognized by the lower court judge that the mere fact
that there was a condition attached to the threat does not mean that the
threat does not constitute an assault. The question for this case was just to
find out if an assault had taken place based on the relevant facts at hand.

HOLDING

Appeal allowed; conviction and sentence entered (restored); Greaves loses.

3. Assault and Battery 6

 RATIO

1. A conditional threat, if the other conditions of s. 2 of the Crimes Act 1961 are
met, is an assault. Thus a threat by a person holding a knife in his hand to stab
another person if that other person came any closer (especially a police officer
fulfilling their lawful duties) is an assault.

a. Section 2 of the Crimes Act 1961 defines an assault as "the act of

intentionally applying or attempting to apply force to the person of another,
directly or indirectly, or threatening by any act or gesture to apply such force
to the person of another, if the person making the threat has, or causes
the other to believe on reasonable grounds that he has, present ability
to effect his purpose."

ANALYSIS

In this particular case, the police were menaced enough by Greave's attitude
and words that they were forced to retire; the threat was made with the very
purpose of "intimidating or overcoming the will of the person (officers) to whom
it was addressed."

This case can be distinguished from other cases involving threats where
defendants had no present intention of carrying their threats out (Tubervell v.
Savadge, 1669). Instead, this case should be compared to the the conditional
threat offered by an armed robber: saying "your money or your life" with a
loaded pistol pointed at your head (much like in Blake v. Barnard, 1840).

There is no difference in principle between a demand that the person

threatened should retire, and a demand that he should not proceed further on
his lawful occasions. "The policemen were present here on their lawful
occasions and their entry was barred; that in our opinion was sufficient." In this
case, there was a threat of violence exhibiting an intention to assault and a
present ability to carry the threat into execution. Assault therefore occurred.

CONCLUSION/CLASS COMMENTARY

3. Assault and Battery 7

 Prof: like Holcombe, think about the conditionals used (if you take me to court,
I'll kill you; if you get any closer, I'll stick this in your guts)

Also, think of repetition, imminence, proximity.

Bettel et al. v. Yim (1978) Ontario Country

Court, Judicial District of York
FACTS

The plaintiff (Bettel), who was fifteen years old at the time, threw a lighted
match into the defendant's (Yim) store causing a small fire in a bag of charcoal.
After the fire was extinguished, Yim asked Bettel who started the fire (he had
been with a group of 6-7 other boys). Bettel denied having started it. Yim then
grabbed Bettel and shook him 2-3 times before his head unintentionally came
into contact with Bettel's nose, causing Bettel to fall to the ground. Bettel
suffered injuries to his nose requiring medical treatment. Bettel sought damages
for assault, and Bettel's father sought $1,113 in special damages

3. Assault and Battery 8

 PROCEDURAL HISTORY

Bettel sued for assault, even though the court said he should have sued for
battery.

Prof: usually, if you sue for the wrong thing, the court will just throw out your
case (not what happened here, because court says at the time there was
confusion as to the overlap of assault and battery)

ISSUES

1. Whether an intentional wrongdoer should be held liable only for the reasonably
foreseeable consequences of his intentional application of force, or should he
bear responsibility for all consequences which flow from his intentional act? (All
consequences)

HOLDING

Judgement for the plaintiff; Bettel wins.

RATIO

1. An individual is liable for all harm that flows from his or her conduct even where
the harm was not intended.

ANALYSIS

The defendant did not intend to injure the plaintiff in the manner which he did,
although he did intend to shake him. The defendant's act constituted the
intentional tort of battery. The onus was on the defendant to disprove the
element of intent. This he did not do. The defendant did not intend the harmful
consequences of his action. The fact that the consequences were not
reasonably foreseeable made no difference to the question of the defendant's
liability. The intentional wrongdoer should bear the responsibility for the injuries
caused by his conduct and the negligence test of "foreseeability" to limit, or
eliminate, liability should not be imported into the field of intentional torts. The

3. Assault and Battery 9

 acts of grabbing the plaintiff and the subsequent striking of his nose by the
defendant's head were not separable events.

TL:DR: When something happens as a result of a chain of events deliberately

set in motion by the defendant, and at the end of that chain of events some act
is done by the defendant that causes an unintended injury, it is not an accident.
It is conduct for which the defendant must assume responsibility.

The principle of reasonable foreseeability, which informs the analysis of

negligence, does not apply in the instance of an intentional tort such as
battery.

If only foreseeability and intentionality were considered, than the defendant

would not be held liable for further and perhaps more grave consequences
arising from the action (ie. if you punch someone in the face, you must be
liable for both the black eye and the brain damage from them falling
backwards and hitting their head).

On application of this principle to the facts, it was found that Yim

intentionally shook Bettel, which constitutes a battery; subjectively, he
accidentally head-butted the plaintiff, but the unintentional nature of the
action does not remit (cancel) his responsibility for it.

CONCLUSION/CLASS COMMENTARY

Yim's counsel tried to use the defence of ex turpi causa, arguing that because it
was the wrongful conduct of the plaintiff which precipitated the battery by the
defendant, the plaintiff's action must fail. The court states that this argument
was not successful because ex turpi causa was not pleaded at the appropriate
part of the trial (it was argued as an afterthought).

Bettel was awarded general damages assessed at $5,000, and his father was
awarded the full quantum ($1,113) of special damages (as the court determined
he would be if the Yim's liability was proven).

Prof: Battery requires contact, but doesn't need skin to skin contact (objects
used, even car to car hypothetically); it is done on purpose; can be by itself but
often involves assault as well. Battery takes place when the touch happens, but
the events leading up to the battery can be used to prove assault. Whether or

3. Assault and Battery 10

 not you get damages for battery will depend on how the court assesses the
harm committed.

Prof: Procedurally, note that trial judges are not supposed to interfere with issue
in law presented (in this case, the judge allowing the claim for battery, even
though Bettel mistakenly sued for assault; today, this would never happen).

Prof: Key lesson in this case: you don't need reasonable foreseeability to sue
for battery. (Don't worry about this concept now, because we haven't covered it
yet)

3. Assault and Battery 11