Tresspass to the person - DEFENCES

Question 1

Everyday Life problems / torts - 2 filters

Answer 1

HOSTILITY - Requiring C. to prove another element – that D. acted with ‘hostility’; or

IMPLIED CONSENT - Allowing D. to prove that C. has impliedly consented to all physical contact in everyday life

Question 2

Implied Consent Solution AND general exception

Answer 2

Collins v Wilcock

‘…most of the physical contacts of ordinary life are not actionable because they are impliedly consented’

‘…a general exception embracing all physical contact which is generally acceptable in the ordinary conduct of daily life.’

Question 3

Hostility

Answer 3

Wilson v Pringle

‘It is not practicable to define a battery as “physical contact which is not generally acceptable in the ordinary conduct of daily life.’

‘in battery there must be an intentional touching or contact in one form or another of [the plaintiff] by the defendant. That touching must be proved to be a hostile touching…

Question 4

Consent

Answer 4

C gave express consent to D’s act or is treat as having impliedly consented to D’s act (including consent to all physical contact in everyday life

Consent is a full defence

Express - e.g. consent to surgery
Implied - e.g. implied consent in everyday life / sporting context

Consent has boundaries –> touching beyond consent can be a battery – NASH v SHEEN

Question 5

Consent is not unlimited

Answer 5

May not be possible to consent to some actions, as a matter of public policy

R. v Brown (1996); R. v Wilson (1996)

Question 6

Consent can be invalidated

Answer 6

Fraud (e.g. sexual assault cases based on impersonation)

Duress

Lack of mental capacity (see, e.g. the claim by the son in Wainwright v Home Office (2004)

Question 7

Consent is sports activities

Answer 7

Participants in (contact) sports give (express or implied) consent to:

> Activities within the ‘rules of the game’: Simms v Leigh Rugby Football Club (1969); or

> Force ‘of a kind which could reasonably be expected to happen during a game’: R. v Billinghurst (1978)

Question 8

Consent to medical treatment

Answer 8

Whether consent is ‘informed’ (or not) is usually left to the tort of negligence rather than trespass to the person: Chatterton v Gerson (1981)

If treatment is beyond the scope of the consent, there may be trespass: Chatterton v Gerson (1981) per Bristow J.

Adults with capacity have the right of self-autonomy, including refusal of treatment: Re T (Adult: Refusal of Treatment) (1993) HL

Question 9

Self Defence

Answer 9

D. uses reasonable force in response to an honest and reasonable belief that it is needed to protect D., another person, or property. s.3 Criminal Law Act 1967

It is a full defence

Such force is reasonable for defending themself, another person and property

D can act pre-emptively

Question 10

Self Defence - FORCE

Answer 10

Reasonable force is ‘reasonable in the circumstances’

D.’s actions must be proportionate: Cockcroft v Smith (1705) per Holt LJ

D.’s belief:
> must be (subjectively) honest AND (objectively) reasonable: Ashley v Chief Constable of West Sussex Police

Question 11

Breach of peace

Answer 11

Wright v Police for Metropolis

‘A breach of the peace arises where there is an actual assault, or where public alarm and excitement are caused by a person’s wrongful act…’

Albert v Lavin 1982
‘Every citizen in whose presence a breach of the peace is being…has the right to take reasonable steps to make the person who is breaking or threatening to break the peace refrain from doing so’ e.g. detainment

Question 12

Lawful Authority

Answer 12

D. has lawful authority, from statute or from the common law, to do something which would otherwise amount to a trespass to the person. Examples include police and non-police powers of arrest, mental health/public health detention

Full defence

A person may use such force as is reasonable in the circumstances in the prevention of crime, or in assisting in the lawful arrest of offenders