LWZ116 Lecture Notes - Lecture 12: Pro Bono, Rosehill Gardens Racecourse, False Imprisonment
Defences to Trespass
There are a wide range of defence available to claim of trespass including:
Consent,
Self-defence,
Defence of a third person,
Defence of property, and
Legal Authority
There are also partial defences, including provocation and contributory negligence [discuss]
1) Consent
CONSENT IN TRESPASS CASES GENERALLY
Consent is considered to be a defence to a trespass action, rather than lack of consent being
an element of the tort.
Valid consent will prevent an action for trespass to land, goods, or person arising. Consent
may be express, or it may be implied from the conduct of the plaintiff.
Ames v Hanlon (1873) 4 AJR 90
McNamara v Duncan (1971) 26 ALR 584
It is clear that a defendant who relies on the defence of consent bears the onus of proving it:
Department of Health v Community Services v JWB (Marion’s case) (1992) 175 CLR 218
To be a valid consent for the purposes of the defence, the following aspects must be present:
1. The consent must be voluntary, that is, not actuated by fraud or duress;
2. The Plaintiff must have the legal capacity to give consent; and
3. The interference must be within the scope of the consent
1) Voluntary Consent
To be effective as a defence in a claim for trespass, the consent must be genuine and freely
given.
If the consent is induced by fraud, it will not be valid for the purposes of the defence. To
invalidate the consent, the fraud must be more than merely collateral, but must go to the
quality of the act consented to:
Hegarty v Shire (1878) 14 Cox CC 124;
R v Papadimitropolous (1957) 98 CLR 249
This issues is illustrated by the case of R v Williams:
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R v Williams [1923] 1 KB 340
[Facts: The D was the P’s singing teacher. The D argued that the P had consented to
sexual intercourse with him. However, it was established that he had gained her consent
by persuading her that she required a ‘special’ surgical procedure to improve her
singing.]
Held: there was no valid consent as the P had been induced by the fraud as to the nature
of the act
In a similar way, where the consent is procured by duress or the threat of force, the consent
will be treated as non-genuine and therefore ineffective:
Symes v Mahon [1922] SASR 447
2) Capacity to Consent
Secondly, for the putative consent to effectively neutralise the trespass, the P alleged to have
given the consent must have sufficient legal capacity to give consent.
In making this assessment of capacity, the age and mental ability of the P will be relevant.
This will be assessed in the individual circumstances of the case:
‘…a minor’s capacity to make his or her decisions depends upon the minor having
sufficient understanding and intelligence to make the decision and is not to be
determined by reference to any judiciary fixed age limit’
Gillick v West Norfolk & Wisbech Area Health Authority [1986] AC 112
3) Scope of the Consent
The defence will only extend to the activities covered by the consent. If the interference
exceeds the scope of, or the conditions attached to, the consent, there is no valid defences and
the entire conduct may be trespassory:
Barker v R (1983) 153 CLR 338
CONSENT IN INTENTIONAL TORTS AGAINST THE PERSON
There are occasions where it is in the interests of an individual to agree to an intentional
interference with her person. It may secure some desirable benefit, whether:
personal,
material,
emotional, or
economic.
Consequently, the law recognizes the right of an individual to exercise her autonomy and
consent to the intentional interference with her person.
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People commonly consent to a variety of batteries, including medical care, haircutting, body
piercing, tattooing, and sexual contact. Travelling in an elevator or an aircraft necessitates
consenting to an imprisonment. Valid consent will negate a trespass against the person.
The tort of battery is aimed at protecting the personal autonomy of the individual. Its
purpose is to recognize the right of each person to control his or her body and who
touches it, and to permit damages where this right is violated. The compensation
stems from violation of the right to autonomy, not fault. When a person interferes with
the body of another, a prima facie case of violation of the plaintiff’s autonomy is made
out. The law may then fairly call upon the person thus implicated to explain, if he can.
If he can show that he acted with consent, the prima facie violation is negated and the
plaintiff’s claim will fail. But it is not up to the plaintiff to prove that, in addition to
directly interfering with her body, the defendant was also at fault.
Non-Marine Underwriters, Lloyd’s of London v Scalera [2000] 1 SCR 551
For consent to be sufficient to negate a prima facie battery, it must be genuine. This is
particularly relevant in cases concerning sexual assault and battery.
Consent in the Sporting Context
Many sports involve physical contact which clearly would not be acceptable in ordinary life.
[Consider football, rugby – contains much intentional interference with the person of
another which, outside the sporting arena, would result in liability for battery.]
Generally, players are protected from liability by the implied consent of all the participants to
physical interference that is an integral part of the sport.
…in sport where there is no malice, no anger and no mutual ill will, the combatants
consent to take the ordinary risks of the sport in which they are engaged.’
Wright v McClean (1956) 7 DLR (2d) 253
That implied consent will extend only to that contact that is within the normal incidence of
playing the sport.
McNamara v Duncan (1971) 26 ALR 584
If the contact occurs outside the rules of the game, a battery may be established.
The privilege to play a contact sport is not a licence to inflict serious harm on an
opponent. A line must be drawn between bodily contact that is an expected part of the
game and that which is not.
In assessing the extent of the implied consent, the courts will consider the rules of the game,
and are likely to accepts some degree of infraction of those rules as part of the game. The
issue in the case of Guimelli v Johnston:
Guimelli v Johnston (1991) Aust Torts Reports 81-085
[Facts: The P and D were on opposing teams in an AFL match. The D collided with the
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