In the criminal context, an assault is a violation of bodily integrity without the consent of the other person (it can be a push or a punch or pretty much any physical contact, direct or indirect—spitting or poking with a finger can be included). In the context of civil actions, those actions would be described as a battery, and an assault is something that gives rise to the apprehension of a battery. The phrase, “I am going to punch you in the face,” followed by a punch to the face, is an assault followed by a battery. Because of this change in use between criminal law and tort law, the terms battery and assault are sometimes confused in judgments.
Batteries are one of the few things actionable without proof of damages—the mere fact that it happened is enough to give rise to a claim. This is one of the reasons why batteries of a sexual nature are sometimes easier to deal with civilly than they are in the criminal context. In the civil context, once the action (sexual activity) is proven or admitted to, the burden is then on the other person to prove, on a balance of probabilities, that it was consensual (the usual defence), whereas in the criminal law context, the burden is on the state to prove, beyond a reasonable doubt, all the elements of the offence including a lack of consent. A family action can include a claim for battery. Be aware that, while there is no limitation period on batteries of a sexual nature, ordinary batteries have a general time limit of 2 years from the time they occurred and you must file your claim before then. In Dhillon v. Gaba, 2014 BCSC 1474, the Claimant sought damages for assault. The trial judge noted the following:
[74] I turn then to the assessment of damages. The claimant does not claim for past or future wage loss or for special damages. She testified that she made some attempts to obtain counseling, but I find that she did not pursue that option with vigour. She testified that she suffered some pain and discomfort, but I find that it was relatively minor and short-lived. She had some relatively superficial bruising, but it quickly faded. I find that the primary effect on the claimant from the respondent’s conduct was not pain and suffering, but rather, humiliation and embarrassment. She is entitled to general damages for the violation of her personal autonomy.
The trial judge then awarded $2,000 for this, based on a 2013 decision and a 1998 decision. The 2013 decision was based on a one-time occurrence, and the 1998 one was as well. One issue to think about is whether simple inflation should have been enough to increase the damage from $2,000 to something more, but these cases are always very fact specific and a judge is almost never in the position of being able to compare apples to apples. Having said that, it is worth observing that other cases have commented in the rise in the amounts awarded for batteries (at least those of a sexual nature) over the years. One explanation for this is changing societal viewpoints, however, it should also be observed that 2014 dollars are not the same as 1998 dollars (though they’re probably, in fairness, close enough to 2013 dollars as makes no difference).
It should also be observed that if there have been criminal proceedings and a guilty plea, then the job of proving the offence becomes much easier—they’ve already been found guilty beyond a reasonable doubt, so there’s no risk of that being overturned on a balance of probabilities. In summary, it’s important to remember that these kinds of things can have economic consequences, but that prompt action may need to be taken to preserve your rights if you’re operating under a two year deadline.
While in some circumstances, it may not be worth it to pursue economically, in other circumstances, it can make sense. It depends on how much evidence needs to be produced (both with respect to the incident, as well as things such as potential future income loss, depending upon the nature of the injury), as well as the size of a potential claim.
Contact one of our Family Law lawyers for more information.