#7158 - Defences - Torts A

Courts have held that participants in sports consent to batteries that fall within the rules of the game (McNamara v Duncan).

• The SA Court of Appeal has also held that consent to extend to harm caused by some commonly encountered unintentional infringements of the rules (Giumelli v Johnston).

[Discuss facts indicating for/against consent]

Boxing/fights

• It has been suggested that blows struck predominantly as an exercise of skill and not with the primary intention of inflicting bodily harm are consented to in boxing (Pallante v Stadiums Pty Ltd).

• Consenting participants in an unlawful fight will have no action in trespass (Bain v Altoft).

P’s consent must be genuine and not nullified by other factors.

P can argue that his/her consent was nullified because

He/she may claim here that consent was given under the threat of

• Physical harm

• emotional harm

• economic harm (the minority view in Latter v Braddell is the view taken today) [eg threat of losing job per Latter]

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…

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).

• This standard does not require that the risks be outlined.

• Consent to one medical procedure does not imply consent for another.

[Discuss per facts – D/P arguments]

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 the doctor cannot decide if the test is satisfied, he/she can apply to court for a ruling on it before proceeding.

If this test is not satisfied, a parent or guardian must consent to the procedure.

• Where a parent refuses consent for treatment the doctor thinks is necessary, the doctor may apply to court for an order/declaration that the treatment be allowed to proceed. The court will make this decision in the best interests of the child.

Refusal of medical treatment

P will argue that an individual has the right to refuse medical treatment [why relevant per facts]

• D may argue that he/she was not satisfied that P’s capacity to decide has not been diminished by [illness/medication/false assumptions/misinformation/etc] and therefore his/her duty as a doctor was to provide treatment in P’s best interests.

[D’s arguments]

[P’s arguments against consent]

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.

• Trindade notes that revocation does not necessarily render action immediately after revocation a trespass if it is necessary to take that action (eg if needing to conclude the necessary parts of a medical treatment for P’s safety)

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.

• If a party has agreed to stay in a certain place by contract for a set time, and is prevented from using a method controlled by his or her contracting party and thus from leaving the place until that time, this is not false imprisonment (Herd v Weardale)

• Where a party has entered a contract that requires part of his or her liberty to be surrendered, restraint or imprisonment that is not beyond that the party expressly or impliedly agreed to will not be actionable under the tort of false imprisonment (Balmain New Ferry v Robertson)

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

• it will be significantly inconvenient or expensive to the defendant to release the plaintiff

• or where releasing the plaintiff will involve risk to life or health (eg releasing plaintiff from a moving train or plane in flight).

A person is prima facie entitled to take defensive action if

• there is an unlawful infliction of force to [his/her person / the person of another]

• he or she is under a reasonable apprehension that force is about to be inflicted on [his/her person / the person of another].

  • Note that if D was mistaken and there was actually no imminent danger, D must show that the mistaken belief that force would be inflicted was both honest and reasonable (Ashley v Chief Constable of Sussex Police).

A defendant is entitled to claim in self-defence even if he/she was the original aggressor, but the defence will be made out only if the original aggression has ceased so as to enable the formation of the belief by D, on reasonable grounds, that his/her actions were necessary in self-defence (Zecevic v DPP).

Here, D will argue that…

The court will also consider the following evidential matters in deciding whether D did believe his/her actions were necessary, and whether there were reasonable grounds for that belief.

If there was a reasonable means of avoidance of the threat, it is unlikely that a court would accept D’s argument that he/she believed his/her action to be necessary on reasonable grounds (Fontin v Katapodis).

[Discuss on facts]

A court is also unlikely to accept this defence if D’s response was not proportionate to the threat (Fontin v Katapodis; Rosza v Samuels).

However, disproportionality may not always be considered reasonable (for example, if a frail person needs to use a weapon to defendant against a powerful unarmed attacker).

[Discuss on facts]

It is likely/unlikely that this defence will be made out. A court is [likely/unlikely] to accept that D believed on reasonable grounds that his/her actions were necessary because …

[Add if P was the original aggressor/provoked D’s attack]: It should be noted that since P was the original aggressor here, any exemplary damages awarded will be reduced; compensatory damages will not be affected.

Here,

• The [land/good] was D’s property/in D’s possession; or D was an agent of the owner/possessor

• The force used [was/was not] reasonably necessary because… [arguments]

• The force used [was/was not] excessive because… [arguments]

• [if applicable] A reasonable time was given for P to leave – [describe on facts]

Accordingly, it is likely/unlikely this defence will be made out…