These exam notes were used to achieve a High Distinction in Torts A at Monash University, and include both policy and problem question notes. The notes cover all course content.
They include clear and easily usable exam problem structures, which in many cases are set out so that you can simply insert the relevant facts from your problem question into an already prepared sentence.
The notes are also easily navigated as include clear and comprehensive lists of contents and page numbers.
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D may argue that he/she has a defence of consent. To prove this, D must discharge burden of proof of showing that P gave a valid consent to D’s otherwise trespassory act (see eg, McHugh J in Marion’s Case).
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[Discuss on facts arguments for/against] |
Consent to battery in sports |
Courts have held that participants in sports consent to batteries that fall within the rules of the game (McNamara v Duncan).
[Discuss facts indicating for/against consent] Boxing/fights
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P’s consent must be genuine and not nullified by other factors. P can argue that his/her consent was nullified because |
of duress. |
He/she may claim here that consent was given under the threat of
namely [the threat by D] and therefore his/her consent was vitiated. D may argue that while consent was reluctantly given, there was no duress involved because… |
there was no informed consent to the medical procedure. |
Informed consent, as a defence to ‘medical trespass’, requires that the patient be informed in broad terms the nature of the procedure that is intended before giving consent (Chatterton v Gerson, affirmed in Rogers v Whitaker in Australia).
[Discuss per facts – D/P arguments] |
Consent of child patients |
Where the patient is a child, the child may consent to treatment only where he/she has ‘sufficient understanding or intelligence to enable him or her to understand fully what is proposed’ (Marion’s case).
If this test is not satisfied, a parent or guardian must consent to the procedure.
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Refusal of medical treatment |
Refusal of medical treatment P will argue that an individual has the right to refuse medical treatment [why relevant per facts]
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Under the Medical Treatment Act 1988 (Vic) s 5, a medical practitioner and another person may witness, on behalf of a third person, a refusal of treatment certificate. A doctor who knows of the refusal of treatment certificate but still administers medical treatment covered by the certificate to the person, the doctor will be guilty of a statutory offence of medical trespass under s 8 of the same Act. |
[D’s arguments] [P’s arguments against consent] |
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P may argue that his/her consent was revoked before D’s act. For consent to be effectively revoked, the revocation must be clear and unambiguous, and it must be communicated to D. This revocation may be express or implied.
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Consent in false imprisonment: contractual cases |
Some cases such as Balmain New Ferry v Robertson (1906) and Herd v Weardale (1915) have held that a party may be restrained if he or she has consented to the restraint in a contract. However, a fundamental tenet of civil law is that a person who has breached a contract may be sued for damages, but cannot be imprisoned to enforce compliance with the contract or obtain relief for the breach. Accordingly these cases can be seen as products of their time and are unlikely to be followed today.
One exception, based on policy reasons and accepted by academics (Tan, Trindade et al), where it may be acceptable to restrain a person’s freedom of movement on the basis of contractual consent is if
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D may argue that he/she has a defence of
because he/she [action taken] to protect [himself/herself/other person] from harm. To prove this, D must show that he was entitled to use [self-defence/defence of another] and that he/she... |
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Buy the full version of these notes or essay plans and more in our Torts A Notes.
These exam notes were used to achieve a High Distinction in Torts A at Monash University, and include both policy and problem question notes. The notes cover all course content.
They include clear and easily usable exam problem structures, which in many cases are set out so that you can simply insert the relevant facts from your problem question into an already prepared sentence.
The notes are also easily navigated as include clear and comprehensive lists of contents and page numbers.
T...
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