Source 6
Extract adapted from Law of Tort. 9th Edition. John Cooke. Pearson Longman. 2009. Pp 390 and 393.
The remaining importance of trespass to the person is in the area of civil liberties …. Following Wilson v Pringle there is some dispute as to the extent to which consent is a defence to trespass to the person, or whether it is a part of the tort itself. The argument centres around the requirement of hostility. If the contact must be made with hostile intent, then any consent to the contact would negate an inference of hostility. The substantive importance lies in the burden of proof. Does the claimant have to prove a lack of consent or does the defendant have to establish there was consent? There is no clear answer to this, but the preferable view in the light of developments in the medical cases is that consent is a defence and the burden of proof is on the defendant. Express consent does not present problems where the claimant is legally capable of giving it. A surgeon will be protected from an action in battery by the signing of a consent form by the patient. Implied consent presents more difficulties. It has been rejected in favour of necessity in medical cases. A participant in a sporting event is said impliedly to consent to contacts in accordance with the rules of the game. A punch thrown at an opponent will not be within the rules and there will be a battery committed .… In boxing no action will lie for a punch within the rules, as a participant consents to this by getting into the ring. But a foul punch is not consented to and may give rise to a battery action. Any consent given will be limited to the act for which permission is given. A customer going to the hairdresser consents to having their hair cut and any other treatment they specifically agree to. But a customer who gives consent for a permanent wave does not agree to a tone rinse. The hairdresser will be liable in battery …. The consent must be real and not induced by duress, fraud or misrepresentation …. Self-defence is a defence where reasonable force is used in defence of the claimant’s person, property or another person. The burden of proof in self-defence in civil proceedings is on the defendant. What amounts to self-defence will be a question of fact in each case but the basic principle is that the force used must be reasonable in proportion to the attack. |