I can’t speak about English law, but under American law, battery consists of intentional harmful or offensive contact.  So if the contact isn’t offensive enough to “a reasonable sense of personal dignity” (and a flash probably doesn’t constitute offensive contact, even if the taking of the photo that accompanies the flash is offensive), it can still be actionable if it creates “any physical impairment of the condition of another's body, or physical pain or illness.”  Or am I missing something?

 

               Eugene

 

From: Penelope Watson [mailto:penelope.watson@mq.edu.au]
Sent: Saturday, November 07, 2015 10:00 PM
To: Kleefeld, John; Philip Girard/osgoode; Volokh, Eugene; obligations@uwo.ca
Subject: Re: Projecting message onto side of another's building: trespass, nuisance, something else?

 

Hi All, 

 

The pitfalls of top-of-the -head replies! Sorry have just re-read Kaye v Robertson and I got it wrong. The trespass/ battery argument was run by Pl as one of many causes of action, but he was unsuccessful on that. He succeeded on malicious falsehood instead (falsely implicitly representing that Pl had consented to the pics), which provided the basis for an interlocutory injunction to restrain publication. 

 

Glidewell LJ 's argument re why battery fails  is odd tho. see the following:

 

Pl's case re trespass to person 'is that the taking of the flashlight photos may well have caused distress to Mr Kaye and set back his recovery, and thus caused him injury. In this sense it can be said to be a battery... [counsel] could not refer us to any authority... nevertheless I am prepared to accept that it may well be the case that if  a bright light is deliberately shone into another person's eyes and injures his sight, or damages him in some other way, this may be in law a battery. But in my view the necessary effects are not established by the evidence in this case...'

 

Since when does battery require proof of harm?

Cheers

Penelope