defences to trespass 3

Question 1

self-defence facts (2)

Answer 1

• Action must be proportionate to the threat

- Action must be necessary OR D must reasonably believe the actions are necessary

Question 2

case for self-defence

Answer 2

Ashley v Chief Constable of Sussex Police

Question 3

outcome in Ashley v Chief Constable of Sussex Police

Answer 3

• it was decided that belief in need for self-defence needs to be reasonable, an honest belief is not enough

Question 4

what is necessity

Answer 4

can only be used if there is fear of immediate threat (Austin)

Question 5

2 cases for necessity

Answer 5

• Austin and Saxby v Commissioner of Police of the Metropolis
• Re A

Question 6

Austin and Saxby v Commissioner of Police of the Metropolis

outcome

Answer 6

necessity was a defence for the police officer’s actions because they thought it was necessary to do this because there was a threat to public

-can only be used if there is a fear of an immediate threat

Question 7

Re A outcome

Answer 7

They used necessity as a defence for the good quality of life for one of the twins.

Question 8

consent

3 case

Answer 8

• Herd v Weardale Steel, Coke and Coal Co Ltd
• Chatterton v Gerson
• Re T

Question 9

Herd v Weardale Steel, Coke and Coal Co Ltd

outcome

Answer 9

court said there was no FI- he was under a contract, and he consented to stay in the pit. instead court said employer could sue for a breach of contract (power imbalance)

Question 10

what does Giliker and Beckwith say about Herd

Answer 10

Harsh ruling in favour of employers right over employees. A power imbalance here.

Question 11

Consent in the medical context

2 cases

Answer 11

• Chatterton v Gerson

- Re T

Question 12

Chatterton v Gerson outcome

Answer 12

there was no claim in battery, because patient had given consent and understood the broad nature of the surgery- there may be a negligence claim instead

Question 13

Re T outcome

Answer 13

she was influenced because of her mother, court held her refusal was not free, so not valid

-no battery, it was in her best interest to have the treatment

Question 14

what is highlighted from the case of Re T

Answer 14

Treatment after competent patient refuses treatment would amount to battery

Question 15

when does battery take place in a medical context

Answer 15

if the patient doesn’t agree and doctor does surgery

Question 16

but when may it not constitute to a battery if a doctor performs without consent?

Answer 16

if the patient has the incapacity to consent and the surgery is needed for their best interests- they may not be liable in battery but a claim in negligence may arise

Question 17

H v Commissioner of Police of the Metropolis outcome

Answer 17

Their action was seen as unreasonable, and damages were awarded. They would have had a defence if they believed they had the patient’s best interests at heart.

Question 18

when can you bring a negligence claim and not a battery claim

Answer 18

can bring a negligence claim but not a battery claim if there is a mistake of consent.

Question 19

who said reasonable mistake should be a defence to all trespass to the person torts

Answer 19

Lunney and Oliphant

Question 20

what did Lunney and Oliphant say about reasonable mistake in consent

Answer 20

they say that reasonable mistake should be a defence to all trespass to the person torts

Question 21

what do Murphy and Fleming say about reasonable/ honest mistakes

Answer 21

Reasonable/honest mistakes, such as reasonable belief in consent, do not provide
a defence, only the C’s actual consent will be enough

Question 22

what does Ashley v Chief Constable of Sussex Police say about self-defence and consent

Answer 22

a person acts quickly to an immediate threat, with consent- the person isn’t acting to protect any rights- only the C’s actual defence should provide a defence

Question 23

state 2 things we learn from Ashley

Answer 23

• the difference between self-defence and consent
• a reasonable belief in thinned for self-defence should provide a defence, but only the C’s actual consent should provide a defence, not a reasonable but mistaken belief in consent

Question 24

what tort can link rape to

Answer 24

battery

Question 25

what is unclear about the rape law

Answer 25

whether a reasonable belief in that consent, whether that would that negate a civil liability or not? Or whether the C’s actual consent is enough

Question 26

what can easily contribute to the tort of batter

Answer 26

Assault by penetration and sexual assault could easily constitute the tort of battery, which encompasses all sorts of unlawful contact, done without consent.

Question 27

rape is a what harm

Answer 27

gendered harm (usually)

Question 28

how is there a justice gap

Answer 28

• there is a high attrition rate

- but low conviction rate

Question 29

Lawson v Glaves-Smith, Executor for the Estate of Dawes outcome

Answer 29

she was able to prove on the balance of probabilities that he sexually assaulted and falsly imprisoned her, she awarded a huge sum for the trauma and loss of her business

Question 30

Parrington v Marriott (1999) Unreported outcome

Answer 30

not successful in criminal court, but claim successful in tort claim, in a civil court on the balance of probabilities.

Question 31

W v Meah; D v Meah outcome

Answer 31

there has been a successful criminal conviction but he got lots of money in a separate civil case so C’s asked where their money is so sued in a civil court, and were successful.

Question 32

consent

general principle from Chatterton v Gerson

Answer 32

A surgeon does not commit battery if performing a surgery and the patient has consented

-principle of autonomy: freedom and capacity to consent

Question 33

what case is the best interests test seen in

Answer 33

Re F (Mental Capacity Act 2005, s4)

Question 34

Does an honest or reasonable, but mistaken belief in consent provide a defence to trespass to the person?

Answer 34

does not provide a defence

Question 35

what do Lunney and Oliphant say about reasonable mistake in consent

Answer 35

that reasonable mistake in consent should be a defence to all trespass to the person torts

Question 36

case for whether self-defence and consent are different, whether they justify different rules

Answer 36

R v Governor of Brockhill Prison, ex p Evans