trespass to person DEFENCES book notes Flashcards
what are the defences to trespass to person (7)?????
- consent
- self defence
- statute
- defence of thrid persons
- necessity
- disipline
- lawful authority
- defence of property
what is consent??
Physical contact which would otherwise constitute a trespass to the perosn will be rendered lawful by consent.
consent may be express or implied
courts take into acc extrenal acts manifesting consent
if a victim does not subjectively consent, D will not be liable if the victim;s extrenal conduct indicates consent. (O Brien v Cunard SS Co- P didn’t object when surgeon indicated his intention to vaccinate her- held she consented
can employees consent to physical contact as part of terms???
employees may consent to physical contact as part of their terms of employment.
Corcoran v W&R Jacob - employees agreed as terms of employment to be searched by security personell, carried out aggressive search and P sued - SC held that the consent he has given did not justify aggressive searching so D exceeded terms of consent
How must consent be given???
-genuine and freely given
-fraud, duress or illegality will vitiate consent
-consent obtained by fruad going to the quality of the conduct will be invalid but thatf raud which is merely collateral will not vitiate consent
-Hegarty v Shine- consented to sex, injected her with STD and had concealed he had one, consent for sex was real and not vitiated by fraud.
consent in medical treatment situation….
- general principle = individuals of full capacity have autonomous entitlement to accept or reject medical treatment
Re a Ward of Court- if medical treatment is given without consent it may be a trespass against the person and a breach of individuals constitutional rights.
-situtaions where consent is not required -cases of contagious disease or medical emergency where patient can’t communicate (here implied consent may be a defense- Holmes v Heatley)
what happens when minor is incapable of consenting to med treatment???
-practise is for med practicioners to obtainthe consent of the parents or guardians- even when minor is capable of giving consent
-Holmes v Heatley- parents of 16 boy gave consent for local anaesthetic - during opp general was administered and died on op table- no neg and P action was dismissed.
Can a minor under 16 consent to med treatment???
U S23 of Non-fatal acts against the perosn act 1997, minor over 16 may consent to med treatment- doesn’t say regarding u16-for contraception its open to court to decide in particular case whether child has sufficent maturity to make the decision- Gillick v West Norfolk & Wisbech Area Health authorised the provision of contraception to minors with sufficient maturity u16.
what is the position in Ireland on parents controlling children’s conduct??
constitutional dimension may operate in respect of parents’ duty and corresponding entitlement to control thier children’s conduct in the exercise of constitutional and stat role as guardians
-North Western Health Board v HW- gave sig latitute to parents in respect of decision-making which may neg impact childs right to life, bodily integrity or health
-Temple street v D- court ordered that an infant whose parents objected to a blood transfusion on religious grounds be given it
Defense of Self- Defense is..
“it is lawful to repel force by force, provided that no unnecessary violence is used” (Dullaghan v Hillen)
-reasonable force may be applied to defend ones self- what amound to this will depend on each case and be a q of fact
importance of force being proportionate to the threat faced…..
- Gregan v Sullivan
-D used pitchfork to inflict 13 puncture wounds on arm of P and broke one arm after P struck him on the lip - jury found for D D on self defense but HC set judgement aside
What statute acts as a defense
Criminal Law (defence and the dwelling) act 2011
places statutroty footing on the degree of force permitted to repel trespassers form enetring one’s dwelling. Act relieves liability from use of force by someone in their dwelling/lawful occupant of the dwelling agasint another person where the person using force honestly believes they have entered as a trespasser to committ a criminal act.
when is the statute defence reasonable???
where force is reasonable in the circumstances as person honestly believes
1. to protect from injury, assault, detention or death caused by criminal act
2. to protect property or property of another person from appropriation, destruction or damage caused by a criminal act
3. to prevent the commission of a crime or to effect or assist in effecting a lawful arresst.
Defence of third persons
“everyone has the right of defending any person by reasonable force against unlawful force, even if he has made a genuine mistake about the perilous position of that other” Salmond & Heuston on The Law of Torts
-approach approved in People(AG) v Keatley
Necessity defence
-minor trespasses may be tolerated but serious ones may not
- criminal authorities suggest defence of necessity will not operate in relation to killing another. (R v Dudley and Stephens- stranded, killed and ate a cabin boy, prosecuted for murder
defense not accepted .. see also US v Holmes
Discipline
parents may use physical force pr confinement to discipline kids provided it is not excessive = power of “reasonable chastisement of children”
children can sue for battery and false imp where this goes beyond what is reasonable.
when did “chastisement” go beyond what is reasonable
A v UK- 9yr old been struck by garden cane casuing bruising- step father charged with causing acc bodily harm- child argued english law had failed to protect him and ECourtHR found the child’s ARticle 3 (prohibiting torture or inhuman treatment or punishment) had been breached- English law had no provided adequate protection to the child against treatment or punishment contrary to Art 3
Discipline in shools
in the past claims agaisnt schoolteachers generally met with little success -McCann v Mannion- teacher is justified when ness
1982 circular purported to abolish corporal punishment in NS-
legislation enacted as Non-FActal…. 1997 abolished rule that teachers were immune from liability in respect of physical chastisement
Lawful Authority defence
conduct whcih would otherwise constitute a trespass to the person, where ist purpose is to prevent, control or respond to suspected criminal activity will be permitted by law.
gardai may do acts that would otherwise constitute a trespass where their object is to prevent a breach of the peace (O’Kelly v Harvey)
Person against whom the act is done need not have been the one likely to breach the peace (Humphries v Connor)
Defence of Property
position has trad been where a person enters another’s land or premises , that other may therupon evict the intruder unsing no more force than is necessary to do so.
where no violence is used in the intrusion, the trespasser should be requested to leave before physical measures are resorted to (Greene v Goddard)
breached reasonable force and held to constitute assualt causing bodily harm (MacKnight v Xtravision) P damages were half reduced on account of contrib neg
issues in whether consent is valid???
-minors and incapacitated persons
-consent vittiated by fraud, duress, illegality
-consent to medical procedures
-whether conduct matches consent given
exceptions to when minors are not deemed to have capacity and parental consent is required…..
- emergencies- Holmes v Heartly
- best interests test where parents and med advice don;t agree
(Great Ormond Street Hospital for Children NHS Foundation Trust v Yates and others
capacity to make decisions depends on….
-understand what needs to be made and why
-appreciate likely consequences of making or not making decsision
-understand, retain, use and weigh up relevant info
-communicate a decsion in a meaningful way
can’t consent to something illegal
Lane v Holloway
