Defences to Intentional Torts

Statement of Defence: The response to the P’s Statement of claim - the basis for nonliability

Once the plaintiff has established an intentional invasion of his or her interest by the defendant, the legal burden of proving the facts necessary to constitute a defence lies on the defendant.

Mistake

An intentional conduct done under a misapprehension – not the same as inevitable accident

* Mistake is generally not a defence to an action brought for an intentional tort, and the reasonableness of the mistake is irrelevant

Cowel v Corrective Services Commission (1998) - A mistaken belief that a prisoner was not due for release was no defence to an action for false imprisonment. This was so even though the D acted reasonably on the assumption that blah blah…

Symes v Mahon - Was not held to be a defence that the policeman had mistaken identity

Inevitable Accident

It is a plea that the D either committed no voluntary act or did not intentionally invade the plaintiff’s interest and took all reasonable care to avoid doing so. The defence in trespass is now only necessary where the plaintiff if relying on a non-highway trespass.

Consent

Consent is a defence of considerable importance. An act of sexual intercourse without consent is a battery, as is surgical operation committed without consent.

The defence is usually referred to as consent where the intentional torts are concerned, and volenti non fit injuria where negligence is complained of.

Valid Consent

Courts have established 3 general principles concerning defence of consent:

    * The consent must be given to the act complained of;
    * There mustn’t be vitiating factors (duress, deceit capacity) nullifying consent; and
    * Consent must be genuine

R v Williams - To be valid, consent must be informed and procured without fraud or coercion

Facts: P consented to Medical surgery but not sexual act

Papadimitropoulos v R (1957) - To invalidate consent, fraud must relate directly to the agreement itself, and not to an incidental issue

Facts + Held: Where women consented to sex in the belief that she was fraudulently induced to someone whom she believed she was married too – but wasn’t really – he then is not found guilty of rape because she consented to the act itself.

Consent in Sports

McNamara v Duncan - In contact sports, consent is not necessarily a defence to foul play as also seen in the case of  Hilton v Wallace

Facts: AFL game – D deliberately struck P and fractured his skull
Held: That P did not consent to such a blow

Giumelli v Johnston - To succeed in an action for trespass in contact sports, the P must prove the relevant elements of the tort

Facts: In this case some bodily contact outside of the rules is expected and consent extends to cover that however, not huge blows like breaking a nose etc…

Burden of Proof

Since the absence of consent is a definitional element in trespass, it is for the P to prove absence of consent and not for the D to prove consent, D simply establishes a claim of consent - Sibley v Milutinovic (1990)

STATUTORY PROVISIONS ON CONSENT

• Minors (Property and Contracts) Act  1970 (NSW) ss 14, 49

• Children and Young Persons (Care and Protection) Act 1998 (NSW)

Self Defence & Defence of Others

    * A genuine occasion for self-defence appears to exist; and

    * In each case, the force used must be reasonable or proportional to the threat; it must not be excessive as discussed in Fontin v Katapodis

Facts: After an exchange of words - P grabbed a wooden T-square (from tech drawing) - and whacked D across the arm - hits him a second time - as he draws back for the third hit - the D grabs the closest thing to him - a shard of broken glass - in defence picks it up and throws it at P and causes damage - case goes to the HC
Held: HC found the use of the glass was excessive - “out of proportion” when compared to using a T-square to hit someone

    * D may also use reasonable force to defend a third party where he/she reasonably believes that the party is being attacked or being threatened

The Defence of Property

    * D may use reasonable force to defend his/her property if he/she reasonably believes that the property is under attack or threatened

    * What is reasonable force will depend on the facts of each case, but it is debatable whether reasonable force includes ‘deadly force’

Necessity

   1. The defence is allowed where an act which is otherwise a tort is done to save life or property such as:

          o An act that damages property for the purposes of saving life::

Mouse (1609) - where P complained of his property been thrown overboard a ferry. D plea of necessity succeeded since it was established that that need to lighten the ship had arisen because of a threatening storm.

          o An act done solely to preserve the life or health of the P or P’s property as seen in :-

Proudman
v Allen - Court held D not liable as his action to steer the car into other direction had been reasonably done in the belief that it would protect the plaintiff’s property. Actual affect of the act was not relevant in the absence of negligence

          o A situation in which some minor discomfort or even temporary illness is inflicted on a person who constitutes a danger to the public:

Rigby v Chief [1985] - Police were able to rely n defence to us CS gas to flush out armed psychopath from premises.

   2. An urgent situations of imminent peril must be present à Southwark London Borough Council v Williams [1971] where “it wasn’t an urgent situation of imminent peril”

Insanity

Insanity is not a defence as such to an intentional tort. D must establish in incapacity, but it is then for the plaintiff to establish that despite the incapacity, the elements of the tort can be proved

* What is essential is whether D by reason of insanity was capable of forming the intent to commit the tort as seen in:

White v Pile (1951) - D committed battery against the P under the delusion that that was his wife – held that D was not liable

    * The now generally approved position is that, provided that person knows the nature of the act being committed, it is not necessary that he or she knows it to be wrongful as seen in:

Morris v Marsden [1952] -  D was a catatonic schizophrenic who attacked P – found that D knew the nature and quality of the act even though he did not know it was wrong.

     * Therefore, earlier decision of White v Pile where a general immunity from liability is conferred to the insane person is wrong.

The fact that intentional trespass is actionable, even though the D has no reason to believe that he/she is acting wrongfully is important. The same result will be reached in the case of other intentional torts that impose strict liability such as conversion.

A different result would however occur in a case of a tort that requires a ‘wrongful intent’, and the insanity of the D hinders him/her from knowing their acts are wrong.

Infants

• Minority is not a defence as such in torts.

• What is essential is whether the D understood the nature of his/her conduct Hart v A-G - Where 5year old boy was held liable for slashing a playmate with a razor

Discipline

• PARENTS - A parent may use reasonable and moderate force to discipline a child.  What is reasonable will depend on the age, mentality, and physique of the child and on the means and instrument used. (R v Terry)

Illegality :Ex turpi causa non oritur action

• Persons who join in committing an illegal act have no legal rights inter se in relation to torts arising directly from that act - Gala v Preston

Inter se = “between them”

Hegarty v Shine

Facts: P contracted a disease from sex with the D - P did not know that the D had disease at the time
Held: Found that having sex outside of marriage (this case is 1878) - in an immoral arrangement she lost the case of battery.

Smith v Jenkins (1970) - P lost due to being involved in illegal conduct

Facts: P & D stole and drove a car – P was injured due to the negligent driving of the D
Held: There was no duty of care between accomplices engaged in the actual performance of a common illegal purpose – so in other words, if you are injured in the course of an illegal act, get stuffed, bad luck, you get nothing etc…

Jackson v Harrison - P won and D was held liable

Facts: Two kids both aware that each other had their drivers licenses suspended - they take a car (not stolen) have an accident - due to the negligence of the driver - the injured passenger sued the negligent driver
Held: That the D was liable as the joint illegality on the standard of care reasonably expected of a driver

Gala v Preston

Facts: Group of youths spent the afternoon playing pool and consuming alcohol - in the evening they stole a car - after which two of them planned to commit burglary - P was sleeping in the car and the car collided into a tree – P sued the driver
Held: Minority held the line of smith case - basically said bad luck piss off - majority argued on the basis that there is no proximity to generate a duty of care - the only relationship was the criminal activity which was fraught with serious risks - in the special and exceptional circumstances that prevailed the participants could not have had any reasonable basis for expecting that a driver of a vehicle would drive it according to ordinary standards of competence and care

Trespass & CLA 2002

• s.3B(1)(a) Civil Liability Act (“CLA”) i.e. CLA does not apply to “intentional torts”, except Part 7 of the Act.

• s.52 (2) CLA subjective/objective test i.e. subjective ("…believes…" & "…perceives…")/ objective ("…reasonable response…") test.

• s.53(1)(a) & (b) CLA i.e. “and” = two limb test; "exceptional" and "harsh and unjust“ are not defined in the Act so s.34 of the Interpretation Act 1987.

• s.54(1) & (2) CLA i.e. "Serious offence" and "offence" are criminal terms so reference should be made to the criminal law to confirm whether P's actions are covered by the provisions.

Provocation

• Provocation is not a defence in tort law.

• It can only be used to avoid the award of exemplary damages: Fontin v Katapodis