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Defences Consent 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).
- [if relevant] D must also show that P's consent was not effectively revoked.
1. Did P give consent to the infliction of the injury in question?
[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).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).
2. Is the consent valid?
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 ofPhysical 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
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).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]
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 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 treatmentRefusal 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. 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.
[P's arguments against consent]
3. Was P's consent effectively revoked?
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) Consent in false imprisonment: contractual casesSome 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 ifit 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).
Self-defence/defence of others D may argue that he/she has a defence of
- defence of another 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 [selfdefence/defence of another] and that he/she believed on reasonable grounds that it was necessary to do what he/she did (Zecevic v DPP).
1. Was there a reason for D to take defensive action?
A person is prima facie entitled to take defensive action ifthere 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
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