Tort: Personal Tort Defences

Defences to the Personal Interference Torts

Consent

The Nature of Consent

Strictly speaking, the absence of consent is normally considered an element of the torts against the person. This means that the burden of proof is on the claimant to show lack of consent: Freeman v Home Office [1984] QB 524.

However, this orthodoxy has been challenged by some judges. For example, Clarke MR argues that the defendant is normally expected to provide evidence that the claimant consented. This makes consent a defence in practice: Ashley v Chief Constable of Sussex Police [2007] 1 WLR 398.

When is Consent Valid?

Consent must be ‘real’: Chatterton v Gerson [1981] QB 432. This means that: 

Information
Information, legal books

The claimant must be informed as to the nature of what the defendant is doing and his intentions in a ‘broad’ sense. Mere failure to inform as to risks or side-effects is insufficient. Bad faith fraud and misrepresentation may vitiate consent: Chatterton v Gerson [1981] QB 432.

Duress
Duress, threat, pressure

The consent must not be obtained by duress. Physical threats will vitiate consent, though more diffuse pressures may not: see Freeman v Home Office [1984] QB 524 where institutional pressures on a prisoner did not vitiate his consent to medical treatment. This will depend on how those pressures affect the particular claimant.

Revocation
Leaving, field

The consent must not have been revoked. However, for false imprisonment, it appears that the claimant’s withdrawal of consent to detention is invalid if effecting the withdrawal is inconvenient and costly: Herd v Weardale Steel Coke and Coal [1915] AC 67. 

Implied Consent
Consent, sports, football rules

Claimants are taken to implicitly consent to any contact which is inherent in the activity they are engaged in. This is particularly relevant in sports and recreational activity, where claimants are taken to consent to any contact which is an ordinary or inherent part of the game or activity: Blake v Galloway [2004] 1 WLR 2844.

Capacity
Capacity, children, immaturity, youth

The claimant must have capacity to consent. They must be able to understand what the act involves, its purpose and consequences. In the case of children, they must also have sufficient life-experience and exposure to different viewpoints, and the capacity to appreciate any moral or family issues that the decision involves: Gillick v West Norfolk and Wisbech AHA [1986] AC 112.  

Harm?
Harm, bones, injury

It is possible that some actions cannot be consented to under the civil law. This is the case under the criminal law, where a person cannot consent to actual bodily harm or greater: R v Brown [1994] 1 AC 212. However, there have been cases holding that consent is a defence in tort if the harm inflicted was proportionate to what the claimant expected: Lane v Holloway [1968] 1 QB 379.  

Self-Defence & The Defence of Property/Others

Requirements of the Defence

To demonstrate the defence of self-defence or defence of others, the defendant must show that: 

  1. It was necessary to respond to an attack, or imminent attack, on the defendant or another person or property; 
  2. The force used was reasonable; and
  3. The bar under s 329 of the Criminal Justice Act 2003 is not applicable.

See Ashley v Chief Constable of Sussex Police [2008] 1 AC 962.

Necessity

Whether it is necessary to act is likely judged by reference to the facts which the defendant honestly and reasonably believed, as indicated in Ashley v Chief Constable of Sussex Police [2008] 1 AC 962. The defendant can rely on a reasonable belief he was being attacked. He cannot rely on an unreasonable belief even if it is honestly held.

However, in Ashley, Lord Scott speculated obiter that the defendant had to prove that he was actually under attack. If so, it would not be enough that the defendant reasonably (but mistakenly) thought he was under attack.

Reasonable Force

To be reasonable, the force used should not be out of proportion to the attack or threat: Lane v Holloway [1989] 1 QB 379. Less force is expected where the threat is against property rather than a person.

If an attack against the property has not yet begun, the courts expect a verbal warning first: Green v Goddard (1702) 2 Salk 641.

Section 329 of the Criminal Justice Act 2003

An action for assault, battery or false imprisonment cannot be brought without judicial permission if the defendant has been convicted of an indictable criminal offence for the same action: ss 329(1)-(2).

Permission will only be granted if there is evidence that 1) the defendant’s actions were grossly disproportionate in the circumstances (s 329(2)) and 2) the defendant was not acting in self-defence, the defence of others, protecting property or 3) was not acting to arrest the claimant, believing that the claimant was about to commit an offence, was committing an offence or had just committed an offence: s 329(5).

If permission is granted, the defendant has a defence if he can show that his actions were not grossly disproportionate and that:

  1. He was acting in self-defence, the defence of others, protecting property; or
  2. He was trying to arrest the claimant, believing that the claimant was about to commit an offence, was committing an offence or had just committed an offence: s 329(4).

Lawful Arrest & Detention

Arrest and Detention by the Police

The police have a defence to the personal torts if they are acting to arrest the claimant for a suspected criminal offence or engaging in a statutory stop-and-search. 

Authorities only have a defence if they are acting within the scope of their common law or statutory powers under the Police and Criminal Evidence Act 1984 (or any other relevant statute). 

Not all illegalities (such as breaches of procedure) will remove access to the defence unless it takes the officer’s acts completely outside of the ambit of their lawful powers: Hague v Deputy Governor of Parkhurst Prison [1992] 1 AC 58. For example, an officer acting in bad faith who knows he has no authority would be acting outside of the scope of his powers. Similarly, if a valid order for detention is withdrawn, there is no longer lawful authority to detain and subsequent action against the claimant is unlawful: R v Governer of Brockhill Prison ex parte Evans [2001] 2 AC 19. 

Arrest and Detention by the Public

Members of the public have a general power to ‘use such force as is reasonable in the circumstances in the prevention of crime, or in the effecting or assisting in the lawful arrest of offenders or suspected offenders, or of persons unlawfully at large’: Criminal Law Act 1967, s 3. It is limited to indictable offences, however: s 2.

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Personal Torts Quiz

Test yourself on the principles of the torts against the person - assault, battery, false imprisonment and intentional infliction of harm.

1 / 21

For the purposes of the tort of battery, has the defendant 'directly' touched the claimant if they do so through an object or by setting a trap to later trigger and touch them?

 

2 / 21

What must the claimant show to establish the tort of assault?

3 / 21

If the defendant touches the claimant accidentally but refuses to end the contact when asked, has the defendant committed the tort of battery?

 

4 / 21

When is an adult competent to give consent to an action which would otherwise constitute a personal interference tort?

5 / 21

Can a claimant give valid consent to an action which causes actual bodily harm or greater in tort?

6 / 21

A member of the public has the power to enact a citizen's arrest for any offence. True or false?

 

7 / 21

In what three situations will the courts label touching as 'hostile' for the purposes of the tort of battery?

8 / 21

What state of mind must the defendant possess before a claimant can establish the tort of false imprisonment?

9 / 21

The defendant performed surgery on the claimant. They first informed the claimant about the nature and purpose of the surgery, but did not inform them of serious risks of injury involved. The claimant agreed to the surgery. The claimant then sues the defendant in the tort of battery, claiming that they did not give valid consent. Is the claimant correct?

 

10 / 21

The claimant has sued the defendant for false imprisonment. They claim that they initially consented to the detention, but later withdrew their consent. The defendant shows that it would be very costly and inconvenient to put this withdrawal of consent into effect. Is the defendant liable for false imprisonment?

 

11 / 21

Does the claimant need to be aware they are being detained to establish the tort of false imprisonment?

12 / 21

The tort of false imprisonment is actionable per se. True or false?

13 / 21

When will the defendant be liable for the tort of false imprisonment as a primary defendant (not vicariously) where the detention was imposed by a third-party?

14 / 21

What three elements must a claimant show to establish the tort of intentional infliction of emotional harm?

15 / 21

The police may normally rely on their powers of arrest and stops as a defence to a personal interference tort claim. When is this not the case?

16 / 21

Which of the following three scenarios cannot constitute an assault?

17 / 21

To establish the tort of battery, what three elements must the claimant show?

18 / 21

For the purposes of the tort of false imprisonment, in which of these scenarios is the claimant 'detained'?

19 / 21

The claimant moves through a toll booth operated by the defendant. They then decide they want to leave, but the defendant will not let them past unless they pay a small fee. Has the defendant committed the tort of false imprisonment?

20 / 21

When is a child competent to give consent to an action which would otherwise constitute a personal interference tort?

21 / 21

When determining if the defence of self-defence or defence of others applies in tort, what facts may be taken into account to judge whether the force was necessary?

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