In the U.S., there can be liability for harmful OR offensive contact. Thus, harm isn't always required: if the contact is offensive enough, it is actionable even if it isn't harmful.

But if the contact is not offensive, then it has to be harmful to be actionable. And this may well support the quoted court's analysis in the camera flash situation (assuming one views flashing light at someone as "contact"): the flash of a camera isn't likely to be "offensive" enough to qualify under the offensive contact theory -- but if it's physically harmful, then it could be actionable (again, assuming that it counts as "contact").

Eugene

> -----Original Message-----
> From: Harrington Matthew P. [mailto:matthew.p.harrington@umontreal.ca]
> Sent: Sunday, November 08, 2015 2:23 AM
> To: Julia Davis
> Cc: Volokh, Eugene; obligations@uwo.ca
> Subject: Re: [Spam?] Re: [Spam?] RE: Projecting message onto side of another's
> building: trespass, nuisance, something else?
>
> In Canada battery is an "international unwanted physical contact."
>
> The definition sounds different from the American but I'm not sure the concept
> is. Although the word "harm" is used in America, am I not right in assuming that
> am actual physical harm is not required? Isn't it enough that there is "offence"?
>
> So an 'offensive" touching is really just an "unwanted" touching.
>
> And what we colloquially think of as harm is just taken care of in damages?
>
> Put another way, I'm not sure the Americans require proof of actual harm do
> they? Isn't offence enough? (Based on a reasonable person standard.)
>
> Thus aren't we really all talking the same standard? IE : unwanted/offensive
> intentional touching that might or might not result in an actual physical harm?
>
> (Sorry if this is painfully obvious but I'm finding this debate interesting.)
>
>
>
>
> On Nov 8, 2015 2:22 AM, Julia Davis <Julia.Davis@unisa.edu.au> wrote:
> >
> > In Australia we do not use the 'harmful or offensive' formula -- we require
> intended (or reckless) contact -- which does not have to cause harm.
> >
> > Sent from my iPad
> >
> > On 8 Nov 2015, at 5:15 pm, Volokh, Eugene <VOLOKH@law.ucla.edu> wrote:
> >
> >>                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