TORT LAW

LECTURE 3 –
DEFENCES TO
INTENTIONAL TORT
Ms Gallop
INTRODUCTION
 There are four defences specific to
intentional torts:
1. Lawful Arrest and Detention
2. Consent
3. Necessity
4. Self-defence
IS PROVOCATION A DEFENCE?
 Murphy v Culhane:
 The plaintiff was the widower of a man killed
in criminal affray. She claimed damages from
the man who killed him. The defendant
alleged that the plaintiff’s husband had
come to assault him, and that the death
occurred as part of criminal activity
originated by him.
 Held – Lord Denning looked at the example of
a burglar breaking into a house and being
faced with a householder who picks up and a
gun and shoots him.
IS PROVOCATION A DEFENCE?
 Held – Whilst the homeowner would be charged
with manslaughter, Denning concluded that it
was highly unlikely that the burglar’s widow
would have an action for damages.
 It was concluded that the proper defence in this
case was ex turpi causa or volenti non fit
injuria
 In general it was concluded that provocation did
not constitute a defence to an intentional tort –
but it may be considered in the calculation of
exemplary damages (but not compensation)
IS PROVOCATION A DEFENCE?

 However, if the provocation amounts to

contributory negligence then it may be
considered when calculating the
compensatory damages awarded
LAWFUL ARREST
AND DETENTION
LAWFUL ARREST AND
DETENTION
 The arrest or detention of a person
suspected of a criminal offence, but not of a
civil wrong, may be justified by a variety of
different powers.
 These powers do not lie solely with the
police either – there are a number of
instances where a ‘citizen’s arrest’ is
permitted. However police powers are much
more extensive.
LAWFUL ARREST AND
DETENTION
 That is not to say that the police have carte
blanche powers to arrest to use force
against, or restrain the movement of, private
individuals
 The police remain subject to the rule of law
and therefore must demonstrate clear legal
authority to justify interference with the
rights of private citizens.
 In the absence of such authority they face
liability for false imprisonment, battery etc
LAWFUL ARREST AND
DETENTION

 For instance the police have powers to stop

and search a person suspected of carrying
stolen goods or prohibited items (e.g. Drugs
or weapons) in a public place but they
cannot simply detain someone because of a
personal vendetta against them
LAWFUL ARREST AND
DETENTION
 Sunbolf v Alford
 The plaintiff and others went to the
defendant’s inn where they were provided with
food and drink. When the defendant asked to
be paid for the provisions the plaintiff refused,
so the defendant forcibly took the plaintiff’s
coat from him as security for the debt. The
plaintiff sued in trespass.
 The court held that this could not be permitted
– if someone could detain someone until they
paid their bill they could theoretically detain
them for the rest of their lives
LAWFUL ARREST AND
DETENTION
 Hague v Deputy Governor of Parkhurst Prison
and Others; Weldon v the Home Office – in
these cases the question arose as to whether
a convicted prisoner had been restrained in a
way not permitted by the Prison Rules (he
was held in solitary confinement for a
prolonged period of time). He sued for false
imprisonment.
 Held – whilst a prisoner is in prison he has no
residual liberty. Therefore they cannot sue
for false imprisonment.
LAWFUL ARREST AND
DETENTION
 This did not mean, however that a prisoner
subjected to intolerable hardship is
remediless. In appropriate circumstances he
will be able to sue for assault and battery.
 Additionally should a prison officer fail to
release a prisoner from their cell contrary to
the orders of a prison governor then this
could amount to false imprisonment (Toumia
v Evans).
CONSENT
GENERAL PRINCIPLES
 It has been held that the lack of consent is
an element of intentional torts that should
be pleaded and proved by the Claimant
(Freeman v Home Office)
 However as a matter of course the defendant
may need to lead with evidence that lays the
foundation of which the court may infer
consent from.
 In this weaker sense consent may be seen as
a ‘defence’.
GENERAL PRINCIPLES
 ‘Consent’ is a common defence to surgery
(which would otherwise constitute the tort of
battery)
 This consent must be genuine and not
coerced in anyway
 As long as you know the general field of your
consent, you do not need to know the details
for this consent to be valid
 Emergency surgery comes under the heading
of necessity
CHATTERSON V GERSON
 In this case the plaintiff claimed that the
defendant surgeon did not advise her as to
the possible side effects of the course of
treatment he was proposing for her. The
plaintiff claimed in both trespass to the
person and negligence, but her action was
dismissed.
 The court held that it was clear that there
was real consent. They held that there must
be a great failure of communication between
doctor and patient for the doctor to have
failed to gain consent.
CHATTERSON V GERSON

 Held – in the opinion of judge Bristow once

the patience is informed in the broadest
terms of the nature of the procedure which
is intended, and they give their consent, and
that consent is real, then the proper cause of
action (if they are not properly informed of
the risks) is negligence, not an intentional
tort
REIBL V HUGHES (CANADA)

 This principle was confirmed in the Canadian

case of Reibl v Hughes where it was said that
unless there was fraud or misrepresentation
to secure consent, a failure to advise of
risks, however serious, went to negligence
and not battery
THE REALITY OF CONSENT
 Consent must be real to be effective
 Therefore consent obtained by duress is no
defence, therefore threats of physical
violence will vitiate consent
 However less immediate pressure has not
been treated in the same way
 In Freeman v Home Office, for example, it
was held that a prisoner had indeed
consented to medical treatment, and that
institutional pressures acting on the
prisoner’s mind did not affect its
genuineness
THE REALITY OF CONSENT

 Consent is vitiated by fraud as to the

essential nature of the conduct
 In R v Williams it was held that there was no
consent to sexual intercourse where the
accused told the victim he was merely
performing an exercise to improve her
singing voice.
THE REALITY OF CONSENT
 In R v Tabassum a number of women gave the
accused consent to examine their breasts for
the purpose of medical research. They gave
evidence that the only reason they gave
consent was because they believed that he
was medically qualified, which he was not.
However this case was not sexually
motivated, the defendant was indeed
conducting research.
 Held – the lack of medical qualification
fundamentally changed the nature and quality
of the act, thus vitiating consent.
THE REALITY OF CONSENT
 In R v Richardson where a dentist who had
been suspended from practice continued to
carry out dental treatment on patients,
which was held not guilty of criminal assualt.
 Held – the case was distinguished from
Tabassum on the basis of that the sole reason
for the decision was that there was no
mistake as to the identity of the person
performing the dental work.
THE REALITY OF CONSENT

 It is difficult to reconcile Tabassum and

Richardson
 In Richardson it was said “in summary, either
there is consent to actions on the part of a
person in the mistaken belief that he was
other than he truly is, in which case, in
which case it is assault, or, short of this,
there is no assault”.
CAPACITY TO CONSENT
 In the case of children and those suffering from
mental disability the question of capacity to
consent may arise.
 The general rule is that the subject of the
proposed interference must have the ability to
understand what is involved.
 In Gillick v Department of Health and Social
Security, for example, it was considered whether
teenage girls could consent to contraceptive
treatment. It was held that they must understand
the wider moral and social implications of the
treatment, rather than just the touching.
CONSENTS INEFFECTIVE FOR
REASONS OF PUBLIC POLICY
 In criminal law everyone agrees that consent
remains a complete defence to common
assault
 In civil law clearly participants in sports
consent to the touching in pursuit of that sport
 However in R v Brown the House of Lords held
that you could not consent to an act
amounting to more than assault. Therefore the
actual bodily harm that had taken place could
be said to consent, though it would be rare for
them to sue in such a case.
NECESSITY
GENERAL
 F v West Berkshire Mental Health Authority –
whether the sterilisation of a mentally ill 36
year old patient, with the mental capacity of
a small child. Psychiatric evidence suggested
that a pregnancy would be devastating and
there would doubts other forms of
contraceptive would be effective. A
declaration was sought that this would not be
an unlawful act.
 Held = the surgery, which would otherwise be
recognised as the intentional tort of battery,
could be defended as necessary
GENERAL

 It was pointed out that the non-urgent

treatment of a temporarily incapacitated
patient should wait until the patient had the
capacity to consent
GENERAL

 Re A (Conjoined Twins) – the court of appeal

held that it would be lawful to operate on
conjoined twins for the purpose of saving one
of them, even if that surgery meant that
other would die. Although this was a criminal
case it was held that the defence of
necessity would be available for the tort of
battery in this case.
NECESSITY AND PERSONAL
AUTONOMY

 This is an important theme in the context of

hunger strikes amongst prisoners
 Early case law held that prison staff had a
duty to prevent prisoners from conducting a
hunger strike where it was a danger to the
prisoner’s health
 However now greater recognition of personal
autonomy has led to a move away from this
conclusion
NECESSITY AND PERSONAL
AUTONOMY

 In Secretary of State for the Home

Department v Robb a declaration was made
in favour of prison officers, that where a
prisoner was on hunger strike and had the
necessary capacity to refuse food, then the
prison officers would be permitted to abstain
from providing those persons with hydration
and nutrition.
NECESSITY AND PERSONAL
AUTONOMY
 Re MB – the appellant was admitted to the
respondent’s hospital for a caesarean section
which she had a consent form for. She would
not however admit to the procedure to get
necessary blood samples. She then withdrew
her consent to the c-section.
 When she went into labour she again gave
her consent to the c-section, but then
withdrew her consent when anaesthia was
offered.
NECESSITY AND PERSONAL
AUTONOMY
 The defendant health authority sought and
obtained a declaration that it would be
lawful to carry out the c-section. That
evening she told her lawyers to appeal the
decision, but the next morning she then
consented to the anaesthesia and delivered a
healthy male baby by c-section.
 It was held that the woman was clearly
incompetent due to her severe fear of
needles
NECESSITY AND PERSONAL
AUTONOMY
 The court held that in this case this could
only apply when the mother was
incompetent, it could not be used when the
mother was competent, even if to save the
life of the unborn foetus
 In St George’s Healthcare NHS Trust v S it
was confirmed that an adult of sound mind
has the right to refuse medical treatment
even if that would result in the death of the
foetus.
NECESSITY AND PERSONAL
AUTONOMY

 Thus in the case of Re B (Refusal of

Treatment) it was held that the failure of
the hospital staff to turn off the ventilator to
which the tetraplegic claimant was attached
was unlawful. The judge agreed and held
that the patient had capacity even though
such a declaration would result in certain
death.
SELF-DEFENCE AND
RELATED DEFENCES
GENERAL
 In Lane v Holloway the 64 plaintiff struck the
23 year old on the shoulder and the
defendant responded by hitting the plaintiff
in the eye with such severity that the
plaintiff was in hospital for a month. The
Court held that the blow was out of
proportion to the original act so the defences
of consent and self-defence were
unavailable. It also held that provocation
could not be used to reduce compensatory
damages.
GENERAL

 In Ashley v Chief Constable of Sussex Police

it was held that the defence of self-defence
was available to a defendant who, on
reasonable grounds, believed that there
were circumstances justifying reasonable
self-defence (in this case it looked like the
plaintiff was about to discharge a firearm).
TORT MAP
QUESTION
 L is walking down the street when he sees M,
a member of a rival gang. L taunts M and
jeers at him, to which M turns round and hits
L in the face.
 L is taken to hospital where Doctor N tells him
that he needs an operation on his nose to
allow him to breath properly. Doctor N does
not tell L that there is a small but significant
risk of blindness associated with the
operation. Doctor N gets L to sign the relevant
consent forms, but as a result of the
operation L goes blind.
QUESTION

 L wishes to sue both M and Doctor N for the

intentional tort of battery.
 Firstly = identify the parties and the relevant
cases
 The first case is L v M, and the second case is
LvN
LVM
 L is suing M for the intention tort of battery.
 Action = M hit L in the face
 It is clear from the case law of Collins v
Wilcocks that these actions are sufficient to
constitute the act of battery, as it amounts
to the harmful or offensive contact to the
D’s person
 Intent = M intended to hit L in the face –
there is no problem of intent in this case
 Causation = M’s actions injured L’s face
LVM
 Are there any defences to this action?
 The three defences to consider: consent,
necessity and self-defence
 In this case there was none of the three
defences
 In Murphy v Culhane it was concluded that
there was not a defence in tort law of
provocation in the context of intentional
torts.
 It was held that it may be considered in the
calculation of damages
L V DOCTOR N
 L is suing N for the intentional tort of battery
 Action: Doctor N performed an operation on
L
 This constitutes harmful or offensive conduct
to L’s person
 Intention: Doctor N clearly intended to
conduct the operation
 Causation: Doctor N’s action clearly caused
the harm suffered L
L V DOCTOR N
 Defences: there are three defences to
intentional torts – consent, necessity and self-
defence
 In this case Doctor N got a consent form from
L
 Even though L was not fully aware of the risks,
following the case of Chatterson v Gerson
there must be an exceptional failure of
communication for there not to have been
valid consent
 There may however be an action in negligence
CONCLUSION
 In conclusion it would seem that L would be
successful in his claim against M for the
intentional tort of battery, but in his claim
against Doctor N, Doctor N would be able to
successfully claim the defence of consent.