Defences for trespass Flashcards
Civil vs Criminal
Civil:
Cause of action threshold is lower, and defence threshold higher. Because civil aims at compensating the victim regardless of whether harm was a result of D’s mistake.
Criminal:
Cause of action threshold higher, and defence threshold lower. Because criminal aims to punish the wrongdoer for their unlawful act.
What are the available defences for trespass against the person?
Self-defence
Necessity
Consent
Self-defence
1) Action must be proportionate to the threat
2) Action must be necessary OR D must reasonably believe the actions are necessary
3) Must be in response to a direct and immediate threat
Necessity
1) No requirement for a direct and immediate threat
- Austin v UK: threat MAY happen so cordon was necessary
- Re A (conjoined twins): both twins would eventually die, killing one was necessary to save the other
Consent
General definition given in s.47 SOA 2003:
“a person consents if he agrees by choice, and has the freedom and capacity to make that choice”
Can be used in employment contracts (Herd v Weardale Steel)
Consent in the medical context
If a patient has been informed as to the nature of surgery, and understood the broad nature of the act - that is enough to constitute consent even if not fully informed as to risks (Chatterton v Gerson)
Treatment after a COMPETENT patient refuses treatment would amount to battery (Re T).
- Where patient is not competent enough to consent, need to look at their best interests per s.1(5) MCA 2005
Place in tort for ‘mistaken belief in consent’
Academic commentary
Murphy, Fleming: no place for a mistaken belief in consent defence.
- purpose of civil is to compensate victim for loss regardless of mistake
Lunney: Yes, there is a place
There is already reasonable belief for needing self-defence. Lord Scott says only actual consent from C will raise a defence.
