defences to trespass 3 Flashcards
self-defence facts (2)
- Action must be proportionate to the threat
- Action must be necessary OR D must reasonably believe the actions are necessary
case for self-defence
Ashley v Chief Constable of Sussex Police
outcome in Ashley v Chief Constable of Sussex Police
- it was decided that belief in need for self-defence needs to be reasonable, an honest belief is not enough
what is necessity
can only be used if there is fear of immediate threat (Austin)
2 cases for necessity
- Austin and Saxby v Commissioner of Police of the Metropolis
- Re A
Austin and Saxby v Commissioner of Police of the Metropolis
outcome
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
Re A outcome
They used necessity as a defence for the good quality of life for one of the twins.
consent
3 case
- Herd v Weardale Steel, Coke and Coal Co Ltd
- Chatterton v Gerson
- Re T
Herd v Weardale Steel, Coke and Coal Co Ltd
outcome
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)
what does Giliker and Beckwith say about Herd
Harsh ruling in favour of employers right over employees. A power imbalance here.
Consent in the medical context
2 cases
- Chatterton v Gerson
- Re T
Chatterton v Gerson outcome
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
Re T outcome
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
what is highlighted from the case of Re T
Treatment after competent patient refuses treatment would amount to battery
when does battery take place in a medical context
if the patient doesn’t agree and doctor does surgery
but when may it not constitute to a battery if a doctor performs without consent?
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
H v Commissioner of Police of the Metropolis outcome
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.
when can you bring a negligence claim and not a battery claim
can bring a negligence claim but not a battery claim if there is a mistake of consent.
who said reasonable mistake should be a defence to all trespass to the person torts
Lunney and Oliphant
what did Lunney and Oliphant say about reasonable mistake in consent
they say that reasonable mistake should be a defence to all trespass to the person torts
what do Murphy and Fleming say about reasonable/ honest mistakes
Reasonable/honest mistakes, such as reasonable belief in consent, do not provide
a defence, only the C’s actual consent will be enough
what does Ashley v Chief Constable of Sussex Police say about self-defence and consent
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
state 2 things we learn from Ashley
- 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
what tort can link rape to
battery
what is unclear about the rape law
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
what can easily contribute to the tort of batter
Assault by penetration and sexual assault could easily constitute the tort of battery, which encompasses all sorts of unlawful contact, done without consent.
rape is a what harm
gendered harm (usually)
how is there a justice gap
- there is a high attrition rate
- but low conviction rate
Lawson v Glaves-Smith, Executor for the Estate of Dawes outcome
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
Parrington v Marriott (1999) Unreported outcome
not successful in criminal court, but claim successful in tort claim, in a civil court on the balance of probabilities.
W v Meah; D v Meah outcome
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.
consent
general principle from Chatterton v Gerson
A surgeon does not commit battery if performing a surgery and the patient has consented
-principle of autonomy: freedom and capacity to consent
what case is the best interests test seen in
Re F (Mental Capacity Act 2005, s4)
Does an honest or reasonable, but mistaken belief in consent provide a defence to trespass to the person?
does not provide a defence
what do Lunney and Oliphant say about reasonable mistake in consent
that reasonable mistake in consent should be a defence to all trespass to the person torts
case for whether self-defence and consent are different, whether they justify different rules
R v Governor of Brockhill Prison, ex p Evans
