trespass to the person - defences

Question 1

what are 2 requirements for self defence?

Answer 1

• must be proportionate to threat

- must be necessary OR must reasonably believe they are necessary

Question 2

which case gave 2 requirements for self-defense?

Answer 2

Ashley (2008)

Question 3

which case gives the defense of necessity?

Answer 3

Austin (2005)

Question 4

necessity

what happened in Re A (2007) case?

Answer 4

Conjoined twins need operation – if they operate one of them will die so can’t say acting in best interests
- used necessity instead as argued one twin was diminishing life of other so necessary

Question 5

what is the case for consent?

Answer 5

Herd (1915)

Question 6

what happened in Herd 1915?

Answer 6

• miner in pitts till 4, refuses to work - not taken back up in lift until 1.30 even though operational from 1
• HOL said no FI as contracted to work till 4 so consented

Question 7

who commented on Herd consent case saying it was harsh ruling in favor of employers rights over employees?

Answer 7

Giliker (2008)

Question 8

which case said surgeon doesn’t commit battery if performing surgery that patient consented to?

Answer 8

Chatterton 1981

principle of autonomy important

Question 9

which case said treating a competent patient after they refuse treatment is battery?

Answer 9

Re T (1993)

Question 10

the case for incapacity to consent in a medical context and legislation?

Answer 10

Re F (1990)

Mental capacity Act 2005

Question 11

what happened in Re F (1990) case?

Answer 11

• woman had disability which gave her mental age of child
• start relationship with another patient, staff didn’t want her getting pregnant
• HOL said couldn’t sterlaise her as necessity too narrow
• best interest test created
• codified in 2005

Question 12

what does s2 mental capacity act 2005 say?

Answer 12

• unable to make decisions because of impairment of the brain or mind
• doesn’t matter whether temporary or permanent

Question 13

what does s4 mental capacity act 2005 say?

Answer 13

• must consider all circumstances like if its likely they’ll regain the capacity and when
• must consider the person’s wishes

Question 14

who said reasonable belief should be defence to all trespass torts?

Answer 14

Lunney 2013

Question 15

who said reasonable/ honest mistakes, like belief in consent, do not provide a defense?

Answer 15

Murphy (2012)

Flemming (1985)

Question 16

which case shows self-defense and consent should be treated differently as self-defense is having to act immediately and consent is acting for the person?

Answer 16

Ashley 2008 for self defence

ex p evans (2001) for reasonable belief not being enough

Question 17

which 2 people argued only a person’s actual consent should afford consent, reasonable belief is not enough?

Answer 17

Adjin-Tettey (2006)

Nikki Godden (2011) - lecturer