Defences to Trespass to the Person (Topic 3) PDF

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Defences to trespass to the person (consent, self-defence, defence of others/property, necessity, contributory negligence, lawful authority (arrest))...

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Defences to Trespass to the Person 3.1 Defence: Consent A defendant will have a defence against an act which would constitute a trespass to the person if the plaintiff has consented to that act. Form of Consent • Consent may be express or implied E.g Express: Written or oral, Implied: Actions Scope of Consent • In order for the defence of consent to operate successfully, it is necessary that the trespass that occurs falls within the scope of that which is consented to (Namara v Duncan) Reality of Consent A number of matters may vitiate consent: • Threat of physical force • Emotional/Economic Duress (Latter v Bradell; Aldridge v Booth) Reality of Consent: Informed Consent Q: To what extent must the consent be informed? A: Provided in Chatterson v Gerson • In the case of a consent given to a medical procedure, the consent would be real (for the purposes of the tort of battery) if the patient has been informed in broad terms of the nature of the procedure which was intended • It was not necessary, in order for consent, in this context to be genuine, that the defendant have outlined the risks involved in the procedure Consent in Minors Ability of minors to consent: • Secretary, Department of Health and Community Services v JWB o A "minor is capable of giving informed consent when he or she achieves a sufficient understanding, and intelligence to enable him or her to understand fully what is proposed" Ability of parents to consent to non-therapeutic procedures: • Non therapeutic: Not for treatment for disease or malfunction • Secretary, Department of Health and Community Services v JWB o The decision to sterilise an intellectually disabled child falls outside the scope of a parent's powers o Rather, the decision as to whether an intellectually disabled child should be sterilised must be made by the court, in light of the best interests of the child Revocation of Consent • Consent may be revoked, either expressly or impliedly • For withdrawal of consent to be effective, it must be: o Clear and unambiguous; and o Communicated to the defendant • There may need to be a 'critical period' during which the revocation is not yet effective

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T, C & L: The critical period should last as long as is necessary to ensure that, as a result of the revocation of consent, the defendant, or others are not subjected to significant inconvenience, substantial expenditure or grave risk

3.2 Defences: Self Defence A response to force, actual or apprehended A person is entitled to act in self defence where: • There is an unlawful infliction of force to person; or • They are under a reasonable apprehension that force is about to be unlawfully inflicted Conduct constituting self-defence must be reasonable in the circumstances Reasonable means of avoidance Before resorting to violence, the person claiming self-defence must have taken whatever reasonable means were open to him, other than the use of force, to avoid the infliction of force against him (Fontin v Katapodis, Rozsa v Samuels) Proportionate Response • It is generally the case that in order for the actions constituting self-defence to be reasonable in the circumstances, the degree of force employed in the self-defence be proportionate to the degree of force that is being defended against (Fontin v Katapodis) Proportionality - A separate requirement? • Is the proportionality of the defendant's response simply one matter to be taken into account when determining whether his actions, in self-defence, have been reasonable in all the circumstances or is proportionality of response a separate requirement Mistaken Belief • Ashley v Chief Constable of Sussex Police o Where the assailant acted under a mistaken belief in an imminent danger of being attacked, the assailant must prove that the mistaken belief was not only honestly held but reasonable • Provocation by the plaintiff (exemplary damages can be reduced by defendant)

3.3 Defence: Defence of Others and Defence of Property Defence of Others Q: May the defence of defence of others by relied upon if the person being defended is a stranger to the person doing the defending? A: Yes (Goss v Nicholas) Defence of Property • May use reasonable force to protect property (land, goods) • Must own it or be an agent to it • IF INVITED: Must ask to leave before inflicting force, must give reasonable time IF TRESPASS: No request to leave is necessary, can take immediate action (Hemmings v Stoke Golf Club)

3.4 Defence: Necessity Necessity Pursuant to the defence of necessity, a person will be held not to be liable for trespass if the trespass was reasonably necessary to protect a person or goods or land from imminent danger • Comparison with the defence of protection of others: Necessity: force is applied on the person you are protecting Defence of others: force is applied on defendant •

Requirements: 1. Imminent Danger • The danger which is being protected against must be imminent (Southwark London Borough Council v Williams) • The action must be necessary in order to protect a person or property from great harm o Whether or not the action was necessary is assessed by reference to what was known at the time the interference took place o It is not necessary that the defendant was successful in protecting the relevant life or property, in order for him to rely on the defence 2. The action must be reasonable • In this context, the court will consider whether the harm likely to be caused by the defensive action is less than the harm that would have been caused if the danger hadn't been averted in the first place • But the court will not place too much weight on this factor, particularly if the defendant acted on the spur of the moment Necessity and Medical Treatment • For the defence of necessity to negative battery where a person has been subjected to medical treatment, it must have been impracticable to communicate with that person (In re F) • Only medical treatment that is necessary to protect a person's life or health may be justified by the defence of necessity (Murray v Murchy) • The doctor must take such actions as would a reasonable person acting in the best interest of the patient (In re F) Crimes Act 1958 (Vic) s 463B • Every person is justified in using such force as may reasonably be necessary to prevent the commission of suicide or of any act which he believes on reasonable grounds would, if committed, amount to suicide

3.5 Defence: Contributory Negligence If a person is harmed partially due to the tortious act of another person, but partially due to his own failure to take care, then the defendant may rely on the defence of contributory negligence • If CN made out, then any damages payable by defendant will be reduced to the extent that, in the court's view, the plaintiff's lack of care contributed to the injury Q: May contributory negligence operate as a defence with respect to a trespass to the person that is intentional? A: No (Horkin v North Melbourne Football and Social Club)

3.6 Defence: Lawful Authority - Arrest A person will have a defence against trespass to the person if his actions are sanctioned by the law, either common law or statute. E.g power of arrest Citizen's Power of Arrest Crimes Act 1958 (Vic) S 458 • Any person, whether or not a police officer, may arrest another person whom she finds committing an offence… if she believes on reasonable grounds that the apprehension is necessary: o To ensure the appearance of the offender before a court o To preserve the public order o To prevent the continuation or repetition of the offence, or the commission of a future offence o For the safety or welfare of members of the public or of the offender • A person may also arrest another person if: o He or she is instructed to carry our the arrest by a member of the police force with authority to arrest the person; or o He or she believes, on reasonable grounds, that the person is escaping from legal custody or avoiding apprehension by some person having authority to apprehend the person S 461 •

Even if it turns out that the person arrested was not committing an offence, as long as the arrestor made the arrest on reasonable grounds, the arrest will be lawful and authorised by statute

Additional Police Powers of Arrest S 459 • In addition to the powers of arrest provided under section 458, a police officer may arrest a person if he believes, on reasonable grounds, that the person has committed an indictable offence in Victoria, or has committed an offence elsewhere which if committed in Victoria would be an indictable offence The Mode of Arrest Degree of force • In order for the defence of lawful arrest to be made out, the arresting party must have used no more force than reasonably necessary to give effect to the arrest (Wiltshire v Barrett) Information that must be granted to person arrested • A person who is arrested must be at the time of the arrest be told of the grounds on which he is being arrested • It is not necessary, however, that the plaintiff have been told the precise charges against him; it is sufficient if he has been told in substance why he has been arrested (Christie v Leachinsky) (eg arrested for killing but not told for murder and manslaughter) • But a person need not be told why he is being arrested if: o He has been "caught red-handed and the crime is patent to high Heaven" (Christie v Leachinsky)

He acts in such a fashion as to make it "practically impossible" to inform him (Christie v Leachinsky) (resisting arrest) o

The time within which a person must be brought before a court • If the defendant is a normal person (not a police officer), he must hand over the plaintiff over to a policeman within a reasonable time...