Bettel et al. v. Yim
20 O.R. (2d) 617
ONTARIO COUNTY COURT
JUDICIAL DISTRICT OF YORK
BORINS, CO. CT. J.
1ST MAY 1978.
Torts — Assault — Distinction between assault and battery blurred — Whether assault may include battery.
Torts — Assault — Burden of proof — Plaintiff throwing lighted matches into defendant’s store — Defendant grabbing and shaking plaintiff — Defendant’s head coming in contact with plaintiff’s nose and injuring it — Once plaintiff proves direct injury burden on defendant to prove absence of intent and negligence — Whether defendant discharged burden.
Torts — Assault — Remoteness of damage — Foreseeability — Plaintiff throwing lighted matches into defendant’s store — Defendant grabbing and shaking plaintiff — Defendant’s head coming in contact with plaintiff’s nose and injuring it — Whether foreseeability test of extent of liability applies to intentional torts.
The plaintiff and his friends threw lighted matches into the defendant’s store, one of which, thrown by the plaintiff, caused a bag of charcoal to ignite. The defendant grabbed hold of the plaintiff with both hands and while shaking him the defendant’s head came in contact with the plaintiff’s nose, severely injuring it. The defendant’s purpose in grabbing and shaking the plaintiff was to force him to confess that he had set the fire. The defendant had no intention to injure the plaintiff in the manner which he did although he did intend to grasp him firmly by the collar and to shake him. In an action by the plaintiff against the defendant for damages for assault, held, there should be judgment for the plaintiff.
The plaintiff framed his action in assault. Properly speaking, the action should have been framed in battery which is the intentional infliction upon the body of another of a harmful or offensive contact. However, in Canada it would appear that the distinction between assault and battery has been blurred and when one speaks of an assault, it may include a battery. It appears to be well established that once the plaintiff proves that he was injured by the direct act of the defendant, the defendant is entitled to judgment only if he satisfies the onus of establishing the absence of both intention and negligence on his part. On the defendant’s evidence, his act in grabbing the plaintiff with both his hands and shaking him constituted the intentional tort of battery. It is obvious that he desired to bring about an offensive or harmful contact with the plaintiff for the purpose of extracting a confession from him. Viewed as such, the defendant’s own evidence proved, rather than disproved, the element of intent in so far as this aspect of his physical contact with the plaintiff was concerned. Furthermore, assuming defendant must establish that his trespass was not careless, he had failed to do so. In grabbing the plaintiff and shaking him firmly, it ought to have been apparent to the defendant that in doing so he created the risk of injury to the plaintiff resulting from some part of the plaintiff’s body coming into contact with some part of the defendant’s body while the plaintiff was being shaken. However, even if the defendant established that he was not negligent with respect to the injury to the plaintiff’s nose he would be liable for that injury. The foreseeability test of liability as defined by the law of negligence does not apply to intentional torts. While strong policy reasons favour determining the outer limits of liability where conduct falls below an acceptable standard, the same reasons do not apply to deliberate conduct, even though the ultimate result in terms of harm caused to plaintiff is not what was intended by the defendant. In the law of intentional torts, it is the dignitary interest, the right of the plaintiff to insist that the defendant keep his hands to himself, that the law has for centuries sought to protect. In doing so, the morality of the defendant’s conduct, characterized as “unlawful”, has predominated in the thinking of the Courts and is reflected in academic discussions. The logical test is whether the defendant was guilty of deliberate, intentional and unlawful violence or threats of violence. If he was, and a more serious harm befalls the plaintiff than was intended by the defendant, the defendant, and not the innocent plaintiff, must bear the responsibility for the unintended result.
[Cook v. Lewis,  S.C.R. 830,  1 D.L.R. 1, folld; Gray v. Barr,  2 Q.B. 554, apld; Gambriell v. Caparelli (1974), 7 O.R. (2d) 205, 54 D.L.R. (3d) 661; Dahlberg v. Naydiuk (1969), 10 D.L.R. (3d) 319, 72 W.W.R. 210; Overseas Tankship (U.K.) Ltd. v. Morts Dock & Engineering Co. Ltd.,  A.C. 388; Overseas Tankship (U.K.) Ltd. v. Miller Steamship Co. Pty. et al.,  1 A.C. 617; Wilkinson v. Downton,  2 Q.B. 57; Janvier v. Sweeney et al.,  2 K.B. 316; Quinn v. Leathem,  A.C. 495; Vosberg v. Putney (1891), 89 Wis. 523, 50 N.W. 403, refd to]
ACTION for damages for assault.
I. I. Balaban, for plaintiffs.
J. D. Philp, for defendant.
BORINS, CO. CT. J.:– In this action the infant plaintiff, Howard Bettel, seeks damages for assault. His father, Murray Bettel, seeks special damages in the amount of $1,113. There is no dispute as to the quantum of special damages and it is agreed that if the defendant is found to be liable the adult plaintiff is entitled to recover the full amount of the special damages. In the reasons which follow I will refer to Howard Bettel as “the plaintiff”.
The events giving rise to this action took place on May 22, 1976, in a variety store owned and operated by the defendant, Ki Yim, situated in a small commercial plaza located in Metropolitan Toronto.
The plaintiff, who was 15 years of age at the time, gave the following account of what occurred. Together with five or six friends, he arrived at the plaza at about 8 p.m. They entered the defendant’s store where some of his friends began to play the pin-ball machines. After a few minutes the plaintiff left the store voluntarily and joined a few friends who were located on the sidewalk in front of the store. He denied that he was asked to leave by the defendant, but stated that he understood the defendant did ask some of his friends to leave because they were mishandling some of the defendant’s merchandise.
The plaintiff and his friends then began to throw wooden matches onto the sidewalk causing them to ignite. The front door of the store was open resulting in there being a very narrow opening between the door frame and the edge of the door to which were affixed the door hinges which were attached to the frame. The plaintiff was standing five to six feet from this narrow opening. Inside the store, in close proximity to the door, were several paper bags containing charcoal. The plaintiff placed a match perpendicular to the ground beneath his left foot and propelled the match through the narrow opening into the defendant’s store. He thinks it was most likely that the match was lit as it passed through the opening. About 30 seconds later the plaintiff saw flames in the area of the charcoal. He went into the store and directed the attention of the defendant to the fire. The defendant then took the charcoal outside where the plaintiff helped the defendant extinguish the fire.
At this point the defendant told the plaintiff to go into the store, which he did. The defendant asked him who started the fire and the plaintiff said he did not know. The defendant then went out of the store while the plaintiff waited inside. The defendant returned to the store and grabbed the plaintiff with both hands on the collar of his jacket asking “Why did you do it? Why did you lie?” The plaintiff told the defendant he lied because he was scared and said he was sorry. The defendant, still holding the plaintiff, began to push him backwards toward a freezer. While pushing the plaintiff in this manner his forehead came down across the bridge of the plaintiff’s nose causing the plaintiff to fall to the ground. The plaintiff said that the defendant, before the impact, was simply holding him and denied that the defendant was shaking him. The plaintiff sustained rather severe injuries to his nose, details of which will be discussed subsequently.
The defendant testified that the plaintiff, together with six or seven other boys, entered the store and went to the area of the pin-ball machines. Some of the boys were playing with a toy football and toy guns and the defendant told them to leave his store. Half of the boys, including the plaintiff, left and went outside. The defendant saw the plaintiff lighting matches and throwing them into the store. On the first occasion the plaintiff entered the store and retrieved a burning match. The second match that was thrown into the store burned itself out. Then the plaintiff re-entered the store, proceeded toward the pin-ball machines and said “What’s the smell?” The defendant smelled nothing, but after 20 or 30 seconds he saw flames coming from the bag of charcoal and proceeded to remove the bag from the store unassisted by the plaintiff who remained inside.
The defendant did not see thrown the match which started the fire. As the defendant returned to the store he saw the plaintiff walking toward the door. He grabbed the plaintiff by the arm as he did not want the plaintiff to leave. The plaintiff denied that he set the fire. The plaintiff did not try to leave. He stood where he was. Because the plaintiff denied setting the fire the defendant grabbed him firmly by the collar with both hands and began shaking him. His purpose in doing so was to obtain a confession from the plaintiff before he called the police. The plaintiff’s constant denials had made the defendant unhappy. He shook the plaintiff two or three times and then his head came down and struck the plaintiff’s nose. He relaxed his hold on the plaintiff who fell to the ground. The defendant obtained some kleenex for the plaintiff, who was bleeding from the nose, and helped him to his feet. The defendant then telephoned the police.
In explaining the incident the defendant said: “I shook him maybe three times and my head and his nose accidentally hit; I didn’t intend to hit him.” In cross-examination he stated that he did not mean to hit the plaintiff with his head and that is why he said it was an accident.
Eun Yim, the wife of the defendant, was able to recall very little of what occurred. She was in the store and was busy attending to customers. She recalled five or six boys entering the store, yelling and screaming, and picking up toy guns and balls. Her husband told them to leave and half of them, including the plaintiff, did so. She saw the plaintiff throw two matches into the store. Then the plaintiff walked into the store and asked about a smell. She smelled nothing, but 20 or 30 seconds later she saw a fire. Her husband grabbed the charcoal and threw it out. He then asked the boy why he did it and he denied doing it. She saw her husband shaking the plaintiff. That is all Mrs. Yim remembers.
The only independent witness, Sidney Herberman, testified on behalf of the plaintiff. He is a mature businessman who had entered the defendant’s store to make a purchase. He said that as he came into the store “an assault was taking place”. He saw the plaintiff being held by the scruff of the neck by the defendant. The plaintiff was “pleading” and saying words to the effect “I’m sorry — I did not mean it.” Then he saw the defendant butt the plaintiff on his head or face which caused the plaintiff to fall to the floor injured. Mr. Herberman was unsure, but he believed that the defendant was shaking the plaintiff before his head contacted the plaintiff’s face. In his opinion the defendant was “quite mad”, an opinion based upon his observation that the defendant’s jaw muscles were flexing. Mr. Herberman told the defendant to leave the boy alone and instructed him to call the police. The essential conflicts in the evidence between the plaintiff and the defendant relate to the match-throwing incident and whether or not the defendant was shaking the plaintiff before striking him with his head. Where the evidence of the plaintiff and the defendant is in conflict I accept the evidence of the defendant and find as a fact that events occurred as stated by him. While the plaintiff was basically a reliable witness, he tended to exaggerate certain aspects of his testimony, while he tended to underplay other aspects of it. For example, his version of how he propelled with his foot a match a distance of over six feet through the air and then through a narrow opening between the door frame and the door exceeds any reasonable probability of what occurred and to accept it would require me to stretch credulity beyond reasonable limits. Furthermore, his evidence that the defendant was not shaking him was not supported by Mr. Herberman who did his best to recall what he had seen. In my view, the defendant was a reliable witness who did his best to recall what had occurred.
Thus, I find that while the defendant was holding the plaintiff with both hands and shaking him the defendant’s head came into contact with the plaintiff’s nose. This had been preceded by the plaintiff and his friends throwing lighted matches into the defendant’s store, one of which, thrown by the plaintiff, caused a bag of charcoal to ignite. The defendant’s purpose in grasping and shaking the plaintiff was to force him to confess that he had set the fire. The defendant had no intention to injure the plaintiff in the manner which he did although he did intend to grasp him firmly by the collar and to shake him.
The plaintiff has framed his action in assault. Properly speaking the action should have been framed in battery which is the intentional infliction upon the body of another of a harmful or offensive contact. However, in Canada it would appear that the distinction between assault and battery has been blurred and when one speaks of an assault, it may include a battery: Gambriell v. Caparelli (1974), 7 O.R. (2d) 205, 54 D.L.R. (3d) 661. It is on the basis that this is an action framed in battery that I approach the facts in this case.
It would appear to be well established in this country (although not necessarily warmly received), following the dictum of Cartwright, J. (as he then was), in Cook v. Lewis,  S.C.R. 830 at p. 839,  1 D.L.R. 1 at p. 15, that once the plaintiff proves that he was injured by the direct act of the defendant, the defendant is entitled to judgment only “if he satisfies the onus of establishing the absence of both intention and negligence on his part”: Dahlberg v. Naydiuk (1969), 10 D.L.R. (3d) 319, 72 W.W.R. 210 (Man. C.A.), per Dickson, J.A. (as he then was), at pp. 328-9. On the defendant’s evidence, his act in grabbing the plaintiff with both his hands and shaking him constituted the intentional tort of battery. It is obvious that he desired to bring about an offensive or harmful contact with the plaintiff for the purpose of extracting a confession from him. Viewed as such, the defendant’s own evidence proves, rather than disproves, the element of intent in so far as this aspect of his physical contact with the plaintiff is concerned. Indeed, the defendant’s admitted purpose in grabbing and shaking the plaintiff does not fit into any of the accepted defences to the tort of battery — consent, self-defence, defence of property, necessity and legal authority: Fleming, Law of Torts, 5th ed. (1977), p. 74 et seq. Furthermore, assuming the onus created by Cook v. Lewis requires the defendant to establish absence of negligence in the sense that he must show that his trespass was not careless (which, I readily concede, can be seen to be a contradiction in terms), it is my opinion that he has failed to do so. In grabbing the plaintiff and shaking him firmly, it ought to have been apparent to the defendant that in doing so he created the risk of injury to the plaintiff resulting from some part of the plaintiff’s body coming into contact with some part of the defendant’s body while the plaintiff was being shaken. If Cartwright, J., meant that the defendant must disprove negligence such as would give rise to an action in negligence, the defendant would be put in a very unusual position because, with respect, the element of negligence is, by definition, absent from the intentional tort of battery.
That there is no liability for accidental harm is central to the submission of defence counsel who argues that the shaking of the plaintiff by the defendant and the striking of the plaintiff by the defendant’s head must be regarded as separate and distinct incidents. While he concedes that the defendant intentionally grabbed and shook the plaintiff, he submits that the contact with the head was unintentional. I have, of course, accepted the defendant’s evidence in this regard. This, in my view, gives rise to the important question: Can an intentional wrongdoer be held liable for consequences which he did not intend? Another way of stating the problem is to ask whether the doctrine of foreseeability as found in the law of negligence is applicable to the law of intentional torts? Should an intentional wrongdoer be liable only for the reasonably foreseeable consequences of his intentional application of force or should he bear responsibility for all the consequences which flow from his intentional act?
To approach this issue one must first examine what interests the law seeks to protect. A thorough discussion of the history of the old actions of trespass and case is found in Prosser, Law of Torts, 4th ed. (1971), p. 28 et seq. Terms such as battery, assault and false imprisonment, which were varieties of trespass, have come to be associated with intent. The old action on the case has emerged as the separate tort of negligence. Today it is recognized that there should be no liability for pure accident, and that for there to be liability the defendant must be found at fault, in the sense of being chargeable with a wrongful intent, or with negligence. Thus, “with rare exceptions, actions for injuries to the person, or to tangible property, now require proof of an intent to inflict them, or of failure to exercise proper care”: Prosser, supra, p. 30.
In discussing battery Fleming writes, supra, pp. 23-4:
Of the various forms of trespass to the person the most common is the tort known as battery, which is committed by intentionally bringing about a harmful or offensive contact with the person of another. The action, therefore, serves the dual purpose of affording protection to the individual not only against bodily harm but also against any interference with his person which is offensive to a reasonable sense of honour and dignity. The insult involved in being touched without consent has been traditionally regarded as sufficient to warrant redress, even though the interference is only trivial and not attended with actual physical harm. ”The least touching of another in anger is a battery”, and so is such offensive and insulting behaviour as spitting in another man’s face, cutting his hair or kissing a woman. The element of personal indignity is given additional recognition in the award of aggravated damages to compensate for any outrage to the plaintiff’s feelings …
. . . . .
Battery is an intentional wrong: the offensive contact must have been intended or known to be substantially certain to result. On the other hand, it is not necessary that the actor intended to inflict bodily harm, since we have seen that the legal injury is complete without it. Indeed it may be sufficient that he intended only to frighten but in a manner fraught with serious risk of bodily contact or harm. [Footnotes omitted]
Fleming, in the use of “intent” accepts the definition set out in the Second Restatement of the Law of Torts (1965):
The word “intent” is used throughout the Restatement of this Subject to denote that the actor desires to cause the consequences of his act, or that he believes that the consequences are substantially certain to result from it.
a. “Intent”, as it is used throughout the Restatement of Torts, has reference to the consequences of an act rather than the act itself. When an actor fires a gun in the midst of the Mojave Desert, he intends to pull the trigger; but when the bullet hits a person who is present in the desert without the actor’s knowledge, he does not intend that result. “Intent” is limited, wherever it is used, to the consequences of the act.
b. All consequences which the actor desires to bring about are intended, as the word is used in this Restatement. Intent is not, however, limited to consequences which are desired. If the actor knows that the consequences are certain, or substantially certain, to result from his act, and still goes ahead, he is treated by the law as if he had in fact desired to produce the result. As the probability that the consequences will follow decreases, and becomes less than substantial certainty, the actor’s conduct loses the character of intent, and becomes mere recklessness. … As the probability decreases further, and amounts only to a risk that the result will follow, it becomes ordinary negligence. … All three have their important place in the law of torts, but the liability attached to them will differ.
Prosser would appear to accept the same test but is careful to distinguish between an intentional and a negligent act, supra, p. 32:
On the other hand, the mere knowledge and appreciation of a risk, short of substantial certainty, is not the equivalent of intent. The defendant who acts in the belief or consciousness that he is causing an appreciable risk of harm to another may be negligent, and if the risk is great his conduct may be characterized as reckless or wanton, but it is not classed as an intentional wrong. In such cases the distinction between intent and negligence obviously is a matter of degree. Apparently the line has been drawn by the courts at the point where the known danger ceases to be only a foreseeable risk which a reasonable man would avoid, and becomes a substantial certainty.
He goes on to add, at pp. 35-6, that Mere negligence, or even recklessness, which creates only a risk that contact will result, may afford a distinct cause of action in itself, but under modern usage of the term it is not enough for battery. While it is true that the plaintiff is entitled to demand that the defendant “keep his hands to himself” no liability will result unless the defendant’s hands find their way to the plaintiff’s body either intentionally or through the failure to exercise reasonable care.
In Harper and James, Law of Torts (1956), vol. I, at pp. 213-5, a thorough discussion of the interests protected by the tort of battery is found. The essence of the authors’ views is contained in this short passage, at p. 213:
Involved in the tort of battery are two interests of personality: first, the interest in the physical integrity of the body, that it be free from harmful contacts; second, the purely dignitary interest in the body that it be free from offensive contact.
With respect to injuries caused by the negligence of a defendant, it is often necessary to determine whether, or to what extent, the defendant must answer for the consequences which his conduct actually helped to produce. It is well established that a person is not legally responsible for all the consequences of his negligent conduct, and so to limit liability certain rules or principles have been established. Fleming discusses the policy considerations with respect to loss distribution arising from negligent conduct, supra, at p. 179:
There must be a reasonable connection between the harm threatened and the harm done. As a matter of practical politics, some limitation must be placed upon legal responsibility, because the consequences of an act theoretically stretch into infinity. The task is to select those factors which are of sufficient significance to justify the imposition of liability and to draw a boundary along the line of consequences beyond which the injured party must either shoulder the loss himself or seek reparation from another source. This inquiry … presents a much larger area of choice in which legal policy and accepted value judgments must be the final arbiter of what balance to strike between the claim to full reparation for the loss suffered by an innocent victim of another’s culpable activity and the grievous burden that would be imposed on human activity if a wrongdoer were held to answer for all the consequences of his default.
The dominant limiting factor in modern negligence law is the “foreseeability” test as developed in Overseas Tankship (U.K.) Ltd. v. Morts Dock & Engineering Co. Ltd.,  A.C. 388 (P.C.), and as explained in Overseas Tankship (U.K.) Ltd. v. Miller Steamship Co. Pty. et al.,  1 A.C. 617 (P.C.). For the purposes of this judgment, it is not necessary to explore the meaning and application of this test. It is only necessary to acknowledge it as a limiting factor to the ambit, or, indeed, the creation of liability arising from negligent conduct. The issue, here, is whether a similar limitation applies to intentional torts, such as battery.
This question has been the subject of discussion by legal academics who appear, on balance, to be of the view that the foreseeability test does not apply to intentional torts. Harper and James, after stating that by the fiction of “transferred intent” a defendant who intends to strike a third person is liable if his blow miscarries and he strikes the plaintiff, go on to say, supra, at pp. 218-9:
As has been pointed out, it is not easy to explain on logical principles the liability of one who, having directed a blow at one person, injures another, if he had no reason to believe the other was present and thus likely to be hurt.
There is no intention to harm the plaintiff and no negligence toward him. The rule has been likened to that imposing liability without fault. A similar situation is involved in the rule that where the defendant intended to inflict a harmful or offensive contact, he is liable for the results even though they are unintended and unforeseeable. But as a matter of sound social policy, it is clearly better that the risk of such unintended and unforeseeable consequences should fall on the intentional wrongdoer than on his victim. The former is a tort-feasor and the latter is innocent. The wrongdoer, thus, should bear the loss. [Footnotes omitted.] Relying on two early American cases, Hart and Honore, Causation in the Law (1959), p. 235, express a similar view:
It is generally agreed that when a defendant is liable because he has intentionally done harm, his liability is not restricted to the harm intended. Thus in Wyant v. Crouse [(1901), 127 Mich. 158, 86 N.W. 527] defendant wrongfully broke into plaintiff’s shop, thereby committing an intentional trespass, and started a fire in his forge. He was not negligent in his management of the fire but, after he left, it spread in an unexplained way and set fire to the building, which was burned down. For this harm defendant was held liable, though he did not intend the spread of the fire. Similarly in Vandenburgh v. Truax [(1847) 4 Denio. N.Y. 464] defendant frightened a boy (thereby committing an intentional assault) who, in his panic, ran into plaintiff’s shop and overturned a cask of wine. For the loss of the wine defendant was held liable, though he did not intend it. It therefore seems that the existence and extent of liability are not necessarily governed by the same criteria.
In a subsequent Note, 39 Can. Bar Rev. 267 (1961), at pp. 274, Professor Honore stated:
… though there is little authority in English law, there is ample American case law to support the principle that “the risk of such unintended and unforeseeable consequences should fall on the intentional wrongdoer rather than his victim”.
The portion quoted by Professor Honore is taken from the passage from Harper and James set out above. The English cases to which he refers are Wilkinson v. Downton,  2 Q.B. 57, and Janvier v. Sweeney et al.,  2 K.B. 316, both of which are concerned with the intentional infliction of nervous shock. In the Wilkinson case one finds, at p. 59, Wright, J.’s much- quoted statement: “… it is no answer in law to say that more harm was done than was anticipated, for that is commonly the case with all wrongs”.
While he does not state the principle in such absolute terms as do some of the other commentators, Professor Williams, in an article entitled “The Risk Principle”, 77 L.Q. Rev. 179 (1961), at pp. 200-1, states:
Where a person plans a particular result and achieves it, the result is not too remote even though it was initially unlikely that the plan would succeed. … The wide measure of responsibility for intended consequences is sometimes expressed in the proposition that an intended consequence can never be too remote.
While he says that this is “probably too extreme a statement”, he supports it by a phrase in Lord Lindley’s speech in Quinn v. Leathem,  A.C. 495 at p. 537 (H.L. (I.)): “The intention to injure the plaintiff … disposes of any question of remoteness of damage.”
It would appear that Fleming discusses the liability of an intentional wrongdoer for unintended results only with respect to the intentional infliction of nervous shock where he refers to the Wilkinson and Janvier cases as support for this proposition, supra, at p. 31:
In cases of mere negligence, it is an ever-present consideration that liability may tend to place unduly onerous restrictions on human activity; whereas in cases of intended harm, the malefactor’s conduct is clearly anti-social and warrants reproof.
While Professor Atrens, in his article, “Intentional Interference With the Person”, found in Linden, Studies in Canadian Tort Law (1968), p. 378, cautions against the application of the decision in Wilkinson v. Downton to all intentional torts and proposes the application of the foreseeability test, he nevertheless provides the rationale for not applying the foreseeability test to the law of intentional torts, at p. 402:
The intended consequences rule does not, unfortunately, answer all the problems of remoteness. Liability is also imposed for the unintended consequences of intentional wrongdoing. A possible solution is to hold that liability for unintended consequences is governed by the ordinary rules of the law of negligence. In the law of negligence, liability, in theory at least, is limited to consequences which are reasonably foreseeable. To what extent the rule is qualified in actual practice need not be considered here. The important point is that the negligence cases display a concern for the problem of limiting liability, and the question is whether a similar concern for the problem of remoteness is to be found in cases of intentional wrongdoing. There is a recognition in the American authorities that liability for the unintended consequences of intentional torts may be wider than liability for the consequences of negligent behaviour. The justification for this attitude is readily apparent. Where the defendant is charged with negligence his fault lies in his failure to measure up to the standard of the reasonable man; there need be no moral turpitude in his conduct. It is otherwise in the cases where the defendant has acted with intent to violate the interests of others. If injury to an innocent person results from such morally reprehensible conduct, it is proper that the court should decline to measure with nicety the foreseeability of the injury or the causal sequence involved because the defendant is less deserving of our consideration. [Footnotes omitted.]
Similarly, Prosser, supra, at pp. 30-1, states:
There is a definite tendency to impose greater responsibility upon a defendant whose conduct has been intended to do harm, or morally wrong. More liberal rules are applied as to the consequences for which he will be held liable, the certainty of proof required, and the type of damage for which recovery is to be permitted, as well as the measure of compensation. The defendant’s interests have been accorded substantially less weight in opposition to the plaintiff’s claim to protection when moral iniquity is thrown into the balance. Apparently the courts have more or less unconsciously worked out an irregular and poorly defined sliding scale, by which the defendant’s liability is least where his conduct is merely inadvertent, greater when he acts in disregard of consequences increasingly likely to follow, greater still when he intentionally invades the rights of another under a mistaken belief that he is committing no wrong, and greatest of all where his motive is a malevolent desire to do harm. [Footnotes omitted.]
After discussing the meaning of intent and the doctrine of “transferred intent” he adds, at pp. 33-4:
His act is characterized as “wrongful,” and his fault is regarded as absolute toward all the world, rather than relative to any one person. Having departed from the social standard of conduct, he is liable for the harm which follows from his act, although he did not intend it …
. . . . .
The broader liability in the case of an intentional invasion of another’s rights is an illustration of the general attitude of the courts as to the imposition of greater responsibility upon an intentional wrongdoer.
Finally, with specific reference to battery, he concludes, at p. 35:
The defendant’s liability for the harm resulting from his conduct extends, as in most other cases of intentional torts, to consequences which he did not intend, and could not reasonably have foreseen, upon the obvious basis that it is better for unexpected losses to fall upon the intentional wrongdoer than upon the innocent victim. [Footnotes omitted.]
One of the cases on which Prosser, and others, relies is Vosburg v. Putney (1891), 80 Wis. 523, 50 N.W. 403, which involved a fight between two schoolboys. Although the jury found that the defendant did not intend the plaintiff any harm, judgment was entered for the plaintiff. The defendant, in kicking the plaintiff, caused a more substantial injury than had been intended. While a new trial was ordered on other grounds, the appeal Court supported the judgment for the plaintiff. In his reasons for judgment (reproduced in Gregory and Kalven, Cases and Materials on Torts, 2nd ed. (1969), at p. 22, Lyon, J., held:
The jury having found that the defendant, in touching the plaintiff with his foot, did not intend to do him any harm, counsel for defendant maintain that the plaintiff has no cause of action, and that defendant’s motion for judgment on the special verdict should have been granted. In support of this proposition counsel quote from 2 Greenl. Ev. 83, the rule that “the intention to do harm is of the essence of an assault.” Such is the rule, no doubt, in actions or prosecutions for mere assaults. But this is an action to recover damages for an alleged assault and battery. In such case the rule is correctly stated, in many of the authorities cited by counsel, the plaintiff must show either that the intention was unlawful, or that the defendant is in fault. If the intended act is unlawful, the intention to commit it must necessarily be unlawful. Hence, as applied to this case, if the kicking of the plaintiff by the defendant was an unlawful act, the intention of defendant to kick him was also unlawful.
It is my respectful view that the weight of opinion is that the concept of foreseeability as defined by the law of negligence is a concept that ought not to be imported into the field of intentional torts. While strong policy reasons favour determining the other limits of liability where conduct falls below an acceptable standard, the same reasons do not apply to deliberate conduct, even though the ultimate result in terms of harm caused to plaintiff is not what was intended by the defendant. In the law of intentional torts, it is the dignitary interest, the right of the plaintiff to insist that the defendant keep his hands to himself, that the law has for centuries sought to protect. In doing so, the morality of the defendant’s conduct, characterized as “unlawful”, has predominated the thinking of the Courts and is reflected in academic discussions. The logical test is whether the defendant was guilty of deliberate, intentional and unlawful violence or threats of violence. If he was, and a more serious harm befalls the plaintiff than was intended by the defendant, the defendant, and not the innocent plaintiff, must bear the responsibility for the unintended result. If physical contact was intended, the fact that its magnitude exceeded all reasonable or intended expectations should make no difference. To hold otherwise, in my opinion, would unduly narrow recovery where one deliberately invades the bodily interests of another with the result that the totally innocent plaintiff would be deprived of full recovery for the totality of the injuries suffered as a result of the deliberate invasion of his bodily interests. To import negligence concepts into the field of intentional torts would be to ignore the essential difference between the intentional infliction of harm and the unintentional infliction of harm resulting from a failure to adhere to a reasonable standard of care and would result in bonusing the deliberate wrongdoer who strikes the plaintiff more forcefully than intended. For example, in the case of a deliberate blow to the eye liability should cover not only the black eye and the bloody nose but also the resultant brain damage caused when the plaintiff falls to the ground and strikes his head, even though the latter was never intended. Thus, 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.
Counsel for the defendant submits that the grabbing of the plaintiff and the subsequent striking of his nose by the defendant’s head should be viewed as separate acts and that liability should end after the plaintiff was grabbed because what followed was accidental. I do not agree. On the facts of this case it is artificial to attempt to separate the two events which were part of one transaction. The striking of the nose occurred while the defendant continued to hold the plaintiff and while the plaintiff was being shaken by the defendant. To adopt the views of the English Court of Appeal in Gray v. Barr,  2 Q.B. 554, where the Court was required to determine whether an unintended fatal injury following upon an intentional firing of a gun into the air to frighten the deceased was an accident within the meaning of a policy of insurance, the striking of the plaintiff’s nose was not an accident. In that case, as in this case, there were two acts to consider — one deliberate and the other accidental — separated in time by a matter of seconds. To grab the plaintiff and shake him is undoubtedly a battery. It was this act that set in motion a chain of events. 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.
There is another argument presented by counsel for the defendant, almost by way of an afterthought, with which it is necessary to deal. He submits that because it was the wrongful conduct of the plaintiff which precipitated the battery by the defendant the plaintiff’s action must fail. I assume that this evokes the maxim ex turpi causa non oritur actio. The short answer to this submission is that this defence was not pleaded. As the defendant’s case was neither presented nor argued in a way that would lead me to conclude that this issue was tried with the implied consent of the plaintiff, the defendant cannot be allowed at this late stage of the trial to rely upon it. In any event, in view of my findings of fact the defence would be unsuccessful: Tallow et al. v. Tailfeathers et al. (1973), 44 D.L.R. (3d) 55 at pp. 60-3,  6 W.W.R. 732 (Alta. C.A.); Tomlinson v. Harrison et al.,  1 O.R 670, 24 D.L.R. (3d) 26 (High Ct.).
I have, therefore, reached the conclusion that the defendant must bear the responsibility for the injury suffered by the plaintiff. The defendant intentionally grabbed the plaintiff and shook him. This constituted a battery. While he was shaking the plaintiff, the defendant’s head came into contact with the plaintiff’s nose and injured it. This was the end result of a brief chain of events set in motion by the defendant. Subjectively, the defendant did not intend to strike the plaintiff’s nose. Legally, because it was the result of the defendant’s intentional interference with the plaintiff, responsibility for the injury which it caused must fall on the defendant.
As a result of his injury, the plaintiff received emergency treatment at a hospital on May 22, 1976, and was permitted to go home. He consulted Dr. Hands, a certified specialist in diseases of the ear, nose and throat, on May 25, 1976, and remained under his care until November 4, 1977. In addition he was examined on behalf of the defendant by Dr. Goodman on September 4, 1977. The evidence of both doctors was given by way of medical reports. Special damages of $1,113.22 for medical services and hospital expenses are not in issue. No other special damages are sought.
When Dr. Hands first saw the plaintiff his complaints were in regard to swelling over the dorsum of the nose, tenderness over the left side of the cheek and skin below the left eye, and difficulty breathing through the left side of the nose. He had no difficulty breathing through either side of his nose prior to May 22, 1976. Examination disclosed a deformed nose — there was a slight depression of the left nasal bone with a displacement of the right nasal bone, and the septum was slightly deflected to the right side, occluding the right side of his nose. An X-ray performed in Dr. Hands’ office was within normal limits, although X-rays of the sinuses revealed marked clouding of the left antrum with muco paraosteal thickening and edema which the doctor said was likely related to the trauma. He concluded that there was both external and internal deformity of the nose which impaired its function and as a result a closed reduction of the fracture took place on June 9, 1976. The patient was required to wear a splint over the dorsum for five days. On July 9, 1976, Dr. Hands was of the opinion that the plaintiff’s nose was satisfactory in appearance and function and said that functionally and esthetically the nose would return to normal within a “couple of months”. However, he warned that there was a “good possibility” of a second operation within two to three years when fuller development of the facial skeleton was completed.
A second operation did indeed take place. It was carried out on June 7, 1977, and it resulted in the plaintiff being hospitalized for three days. It came about in this way. In mid- July, 1976, about five weeks after the first procedure, the plaintiff was complaining of difficulty in breathing through the right side of his nose and a bump had developed on the dorsum of the nose. His initial breathing problem was with regard the left side of his nose. Dr. Hands’ examination indicated a displacement of the septum to the right side and reported “whether this was entirely incured [sic] from the accident, it is difficult to determine, but my opinion is that it was entirely related to the injury”. He was further of the opinion that the bump on his nose was related to the injury.
The plaintiff was also complaining of a bit of hoarseness and huskiness of his voice. Dr. Hands felt that the plaintiff’s difficulties in breathing and with his voice might be compatible with a mild allergy and so he arranged for an allergy consultation. The allergist was unable to demonstrate any allergic cause for the breathing difficulty. On November of 1976, Dr. Hands reached the following conclusion:
Because of this obvious cosmetic deformity and the serious functional problem related to breathing through his nose, I have recommended that [the plaintiff] undergo surgical correction which involves an open reduction of the bones of the nose and a straightening of the nasal septum. It was decided to defer the surgery to the summer months. When it was performed it involved straightening the external and internal portions of the plaintiff’s nose.
Dr. Hands’ final examination of the plaintiff was on November 9, 1977. While the plaintiff was no longer experiencing difficulty breathing through the right side of his nose, he was complaining of difficulty breathing through the left side and of a burning sensation at the back of his nose and throat which he said had been present since the second operation. Medical examination revealed the airway to be exceptionally good and no abnormality in the healing process. Dr. Hands’ conclusion was that in time the airway would “return to a state which [the plaintiff] finds satisfactory” and was “most reluctant” to perform another surgical procedure which he did not feel was necessary. With respect to the burning sensation experienced by the plaintiff, the doctor was uncertain as to its cause and assumed it was related to the original injury, being confident that the problem would improve with time. Dr. Goodman’s examination of the plaintiff on September 14, 1977, found a slight angulation of the nasal septum, but good airways on both sides. There was no gross external deformity and the maxillary and frontal sinuses, on transillumination, showed no gross opacity. He concluded that “the nasal function and appearance at the present are good, and I would expect them to remain so”.
At the time of the trial the plaintiff testified that he had no complaint with respect to the appearance of his nose.
However, he stated that he still experienced some difficulty in breathing out of the left side of his nose, which difficulty had persisted since the second operation. He also complained of some tenderness half-way down his nose. Apart from medical appointments, he was never absent from school as a result of his injury.
The plaintiff has suffered an obvious injury that has caused him a degree of distress and has adversely affected his breathing for a period of about 21 months. Two surgical procedures were necessitated which in the opinion of Dr. Hands and Dr. Goodman have produced a satisfactory result. His breathing is expected to return to normal and the adverse cosmetic effect of the injury has been corrected. I would assess the plaintiff’s general damages at $5,000.
In the result, the infant plaintiff, Howard Bettel, will have judgment in the amount of $5,000 which is to be paid into Court pursuant to the usual terms. The plaintiff, Murray Bettel, will have judgment in the amount of $1,113.22. Counsel for the defendant indicated that in the event of judgment for the plaintiff he wished the opportunity to address the Court with respect to costs. He may, of course, do so. Counsel for the defendant has 10 days in which to arrange an appointment. Should he fail to do so, the plaintiffs will have their costs limited to a single bill of costs.
Judgment for plaintiffs.