Defences Flashcards
Consent
Collins v Wilcock 1984
Consent frequently implied rather than expressed
Nash v Sheen (1953)
C asked for perm
Hairdresser applied Colorant leading to skin complaint
Was battery
Principle- person consented to a perm and didn’t get it
Sexual acts
R v Brown
Sexual and Sado-masochistic acts undertaken for the purpose of obtaining sexual pleasure will not attract tortious liability if consented to unless inflict reaches a certain level
Sport
Players and spectators accept the risks of contact and injury that occur during the course of the game being played according to the rules, but not if the rules were breached
Eg an unfair tackle in rugby
Simms v Leigh Rugby (1969)
Compare with condon v Basi (1985)
The visitor was injured by hitting concrete wall surrounding rugby field. The occupiers not liable as injury foreseeable but so improbable that it was not necessary to guard against it. Occupiers also accepted risk of playing on field complying with bye-laws.
Condon v Basi (1985)
Facts- suffered broken leg during tackle at a football match
Principle-standard of care depends on expertise player has
Reckless tackle despite local level
Not outside rules of the game
Spectators- wooldridge v summer (1963)
Knocked over by horse
Photographer
Principle:
Wasn’t aware of standard of care available
Medical procedures
Any medical or surgical treatment administered without consent is tortious, though consent can often be implied and sometimes the medics will have the defence of necessity, in emergency situations
Must consent be informed?
As long as informed in broad terms of the nature of the intended procedure before giving consent that will be sufficient
Non-disclosure if some risks will not render the consent invalid
Medical necessity
Re T (adult: refusal of medical treatment 1992)
Facts- T had been seriously injured and required a Caesarean section.
She signed a firm refusing a blood transfusion.
Her condition deteriorated and a transfusion became necessary
Principle- over persuasion by mother
Every adult has the right and capacity to refuse medical treatment, presumption of capacity can be overridden upon a determination that unconsciousness, fatigue, or shock affects the patients decision
Importance of treatment and whether capacity has been proven
Sidaway v Board of Governors of the Bethlehem Royal Hospital (1989)
2% risk of spinal injury
Several disabled
Disturbing a nerve an consequences discussed but not about damage to the spinal cord
Principle- Patients must be informed how necessary a procedure is, any alternatives, and any common or serious consequences of it. (There remains some debate of what constitutes “common” or “serious”.)
If a patient is not properly informed and suffers harm as a result of the procedure, the doctor will be liable for negligence.
Bolman test- protect doctors
Self government rights
Autonomy
Ms B v An NHS Trust (2002)
Facts- disabling condition Didn't want to live on the ventilator Switch off life support. She had a living will Right taken away
Principle- court stated she had the mental capacity to make the decision
Self defence
D may use reasonable force to protect himself or another and to protect his property or the property of another
What constitutes reasonable force will be a question of fact in each case, but the basic principle is that the degree of force must be balanced against the seriousness of the attack
Lane v Holloway (1967)
Poor relationship existed between neighbours
One came home drunk and rowdy
Woman said to be quiet and he called her a “monkey faced tart”
Led to an argument between woman’s husband and man
Neighbour made ineffectual shove at the husband who hurt him so badly he needed 18 stitches for facial injuries
Principle- not a proportionate response to the drunken neighbours gestures
Civil law
Ashley v Chief Constable of Sussex police (2008)
An armed police officer shot and killed a man during a raid on a house though the man was not in fact armed
Mansughter dropper
Principle-
Officer acted in self defence-dropped
Ejection of a trespasser
An occupier of land (or any person with his authority may use a reasonable degree of force to prevent a trespasser from entering or after entry to control trespasser movements or eject them
Before ejection must have been requested to leave and given a reasonable opportunity to do so peaceably
Lawful arrest or detention
Criminal law Act 1967 s.3(1)
No trespass to the person is commuted when a reasonable amount of force is used to arrest a person or prevent a crime.
Similarly, imprisonment imposed lawful is also a complete defence
Parental and other authority
Parents may exercise reasonable restraint or chastisement on their children, without being guilty of trespass to the person
A v UK (1999)
A v UK (1999)
Hit child with garden cane
For punishment
Article 3 of the Convention of Human Rights
‘In human and degrading treatment’
Inevitable accident
A defendant will not be liable for an event over which they had no control, and could not have avoided even with the greatest care and skill
Stanley v Powell (1891)
Stanley v Powell (1891)
Facts- during shooting for birds bullets bounced off tree and got him in the eye
Principle- act of God
Couldn’t prove negligence
Anything that occurs in the course of nature which you cannot avoid is an inevitable accident
Statutory Authority
The Mental Health Act (1983) authorises the restraint and incapacitation of people considered to require such restraint because for mental health reasons they represent a risk to themselves And/or others m
Breathalyser under RTA 88 and blood tests under the family law reform act 1969 without needed consent
