Defences for all three tresspass to the persons. (tpttp) Flashcards
(12 cards)
who has the burden of proof in establishing any defences.
defendant has the reposnsability of proving any defences if they can establish them and provide a lawful excuse for their behaviour then claimants claim fails.
established in sisangia v director of legal aid casework 2014.
defendant has to prove that their actions are lawful rather than claimant proving they were unlawful.
what defences cannot be raised in tresspass to the person
not able to establish controbutory negligence eg that the claimant didnt try to esacpe therefore defendant not responsible. this is for all torts against the person eg assault and battery. (cws v prichard 2011)
consent.
Full defence. expressed or implied consent does have boundaries beyond physical touching.
c gave expressed consent to d’s act or is treated as having impliedly consented to d’s acts incldiing consent to all physical contact in everyday life.
(collins v wilcocks 1984)- consent can be a defence to battery there is an implied consent to everyday life by all of those that move in society exposing themselves to the risk of bodily contact.
hostility alternative to implied consent.
wilson v pringle 1987- it is not practicle to define battery as physical contact which is not generally acceptable in the ordinary contact of daily life. touching must be proved to be hostile touching hostility cannot be equated with ill will or malevonance.
hostility doubted (obiter)
f v west berikshire area health authority 1990
i respect doubtfully whether touching must be hostile eg prank getting out of hand or a surgeon who mistakenly thinks the patient consented all of these things may transcend the boundarys of lawfulness without being characterised as hostile.
hostility still lives through flintt v tittensor 2015. element of hostility is required to distinguish uninvited physical touching which is assebtable and uninvited touching which is not.
is consent limited.
yes consent is limited it may not be possible to consent to to some actions as a matter of public policy.
R v Brown 1996
R v Bm 2018
can consent be invalidated.
fraud. sexual assault cases.
duress
lack of mental capacity wainwright v home office 2004.
consent in sports activity.
participants in contact sports give express or implied consent to activities within the rules of the game eg simms v leigh rugby football club 1969.
R v billinghurst- consent to force that is expected in the game.
consent not open ended- watson v british board of boxing control 2001.
consent in medical treatment.
whether consent is imformed of not is usually left to the tort of migligence rather than tresspass to the person Chatterton v gerson 1981. if treatment is beyond the scope of consent there may be a tresspass.
adults with capacity have the right to self autonomy including refusal of treatment Re T adult refusal of treatment 1993.
self defence.
defendant used reasonable force in repsonse to an honest and reasonale belief that it is needed to protect themselfs another person or their property. s3 criminal law act1967.
self defence is a full defense defendant can act pre emotivly chaplain of greys inn case 1400
reasonable force was used
mathematical precision is not required cross v kirby 2000
propoortionate cockcroft v smith 1705.
defendants bellef must be subjectivly honest and objectivily reasonable. Ashley v chief constable of west sussex police 2006.
action taken to deal with an imminent or actual breach of the peace.
d takes reasonable steps which may include detaining c against there will to make a person who is breaking or threatening to break the peace irefrain from doing so.
what is breach of peace
wright v commissioner of police for the metropolis 2013 ‘’ breach of the peace arrises where there is an actual assault or where public alarm and excitment are caused by a persons wrongful act.
Albert v lavin 1982. for every citizen whos present at a breach of the peace being or reasonably apears about to be committed has the right to take reasonable steps to make the person who is breaking or threatening to breach the peace to refrain from doing so including refraining him against his will.
constrainment must be preportionate and reasonable.
lawful authority.
defendant has lawful authority from stature or common law to do something that would otherwise amount to tresspass of the person eg non police and police powers of arrest, mental health and public health detetion.
full defence.
person may use such force as is reasonable in the circumstances in the prevention of a crime or in effecting or assisting in the lawful arrest of an offender or suspected offenders or a person unlawfully at large criminal law act s3.
