Toxic Battery: A Tort for Our Time?

Tort Law Review, Vol. 16, pp. 131-149, 2008

19 Pages Posted: 25 Aug 2010

See all articles by Lynda Margaret Collins

Lynda Margaret Collins

University of Ottawa - Common Law Section

Heather C. McLeod-Kilmurray

University of Ottawa - Common Law Section

Date Written: 2008

Abstract

The tort of battery exists to protect personal sovereignty over the body. Because the battery cause of action is concerned primarily with the autonomy of the individual, it is not necessary to show actual harm in order to recover for non-consensual contact of any kind. Even the administration of a life-saving substance may, in the absence of consent, give rise to liability in battery. When a plaintiff’s body is involuntarily invaded by particles of a toxic substance, her or his bodily integrity is compromised and individual autonomy violated. This article argues that a prima facie claim in battery arises whenever a defendant exposes a plaintiff to a poorly understood or potentially dangerous chemical. Such a defendant may exculpate itself by showing that it obtained explicit or implicit informed consent from a plaintiff with the capacity to choose. With this reasonable limitation, the battery cause of action is singularly well equipped to vindicate the individual’s right to bodily autonomy in contemporary industrialised society.

Keywords: tort, battery, environmental law, toxic tort

Suggested Citation

Collins, Lynda Margaret and McLeod-Kilmurray, Heather C., Toxic Battery: A Tort for Our Time? (2008). Tort Law Review, Vol. 16, pp. 131-149, 2008, Available at SSRN: https://ssrn.com/abstract=1456892

Lynda Margaret Collins (Contact Author)

University of Ottawa - Common Law Section ( email )

57 Louis Pasteur Street
Ottawa, K1N 6N5
Canada
613-562-5800 (Phone)

Heather C. McLeod-Kilmurray

University of Ottawa - Common Law Section ( email )

57 Louis Pasteur Street
Ottawa, K1N 6N5
Canada

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