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Del Monte, Dean-Lloyd --- "Defences To Intentional Torts: an Overview" [2015] PrecedentAULA 56; (2015) 130 Precedent 4


DEFENCES TO INTENTIONAL TORTS: AN OVERVIEW

By Dean-Lloyd Del Monte

In this article I give a brief overview of the defences to intentional torts, which are wrongful acts causing harm or damage, and which involve an intention on the part of the wrongdoer.

Fleming distinguishes intentional tort from pure negligent tort and inevitable accident, in the following terms:

‘An intentional tort, properly so called, is one in which the wrongdoer either desires to bring out a result which is an injury to another, or believes that the result is substantially certain to follow from what he does. A negligent tort is one where the defendant, as a reasonable person, should have foreseen that his conduct involved a foreseeable risk, though falling short of substantial certainty that such a result would ensue. Inevitable accident, finally, refers to cases where the particular consequence was neither intended nor probable as to make it negligent.’[1]

Generally, the following primary defences may be available: mistake, inevitable accident, consent, self-defence, defence of others, defence of property, necessity, discipline, legal authority, judicial immunity (including military courts), and parliamentary privilege.

MISTAKE

Mistake is rarely a defence to an intentional tort, because of the requirement for the tort to have been caused intentionally, or recklessly, as opposed to it having been committed mistakenly.

While the result of a mistake may have been intended, the mistake may have occurred in considering that the result did not ‘constitute an invasion of another's legally protected interests.’[2] For example, in Rendell v Associated Finance Pty Ltd,[3] the defendant, upon instruction from a financial company, repossessed a truck under the mistaken belief that the truck was one owned by a company by which it had been engaged.

Mistake, based upon reasonable suspicion or 'belief', may only be an appropriate defence in limited circumstances. Examples are where a police officer erroneously arrests an offender in the mistaken, but reasonably held, belief that the offender had committed an offence,[4] or when a police officer seizes goods, in the reasonable, but mistaken, belief that they had been stolen.[5]

INEVITABLE ACCIDENT

At common law, there is a clear demarcation between the very limited defence of mistake and the very appropriate defence of inevitable accident. To engage the defence of accident, the defendant must establish that the consequences of the act were not intended, nor could the act have been avoided by taking due care in the prevailing circumstances.[6]

Vine and Sappideen simplify this demarcation, by describing an inevitable accident as ‘harm caused without negligence’, and mistake as ‘the specific nature of harm caused in error’.[7] They suggest that the inequality between the two defences, however, is illustrated in circumstances in which the defendant ‘has derived no benefit corresponding to the plaintiff's loss’.[8] An example is derived from Ranson v Kitner,[9] where a farmer shot another farmer's dog, under the impression that it was a wolf. This situation was juxtaposed to that which occurred in Stanley v Powell,[10] where the defendant, firing on a wolf, missed the wolf, and accidentally shot a dog (an act for which the defendant was absolved on the basis of accident).

CONSENT

This defence is known by its Latin term: volenti non fit injuria (no wrong is done to an individual who consents).

Although a potential defence to an intentional tort, Balkin and Davis speak to the difficulties of ascribing the term ‘defence’ to consent because the term ‘defence’ has two meanings in the law of torts: the first is a basis of non-liability for a pure tort and the second is an objection to a point of law.[11]

Consent may be either expressed or implied.[12] In either case, if there is any degree of equivocation about the understanding of what was being consented to, courts might conclude that no consent was given.[13]

Silence may constitute consent, in certain circumstances.[14]

Importantly, to be a successful defence, consent must be to the act complained of. Acts which exceed those to which the consent was given remain intentional, and arguably indefensible. An example is that while a rugby player consents to being tackled, he or she does not do so beyond the rules of the game.[15]

If consent is to be the defence to an intentional tort, it must be established that the consent was not a product of fraud or duress.

In the case of fraud, the fraud must extend directly to the act itself, and not the circumstances in which the act was performed. For example, when a woman consented to sexual intercourse in the belief, which was fraudulently induced by a man, that she was married to him, the man was not found guilty of rape.[16]

Consent is further vitiated by duress, or in circumstances in which there is an inequality in authority or power in a relationship. A police officer who uses his or her authority to induce a person to attend a police station, in circumstances in which the person is not under arrest, cannot rely upon a defence of consent.[17] Similarly, a medical practitioner who engages in sexual relations with a patient in exchange for drugs cannot rely upon the patient's consent.[18]

Medical procedures

Any adult, of sound mind,[19] may consent to a procedure. Without consent, any contact amounts to a battery (except sometimes in an emergency – see below).

If an adult patient refuses medical treatment, a medical specialist must oblige the patient, even if this approach would be against the plaintiff's best interests[20] or could cause the patient to die.[21]

Where a patient is to undergo serious, invasive treatment, generally medical practitioners have patients sign a standard consent form. If signed, the document does not, of itself, engage the defence of consent. The medical practitioner/responsible party must explain the procedure and its consequences, in order that a defence of consent may be engaged.[22] That said, the explanation need not be detailed in order for the medical practitioner to defend the tort of battery; the patient need only be advised, in broad terms, of the nature of the procedure and its possible consequences.[23]

Minors

A person must have legal capacity for consent to be effective. In the absence of specific legislation to this effect, at common law, minors can give effective consent if they have the intellectual and emotional capacity, sufficient intelligence and an understanding to comprehend the nature (and implications) of what is being proposed.[24]

In circumstances in which the proposed treatment is not clearly beneficial, parental consent is not sufficient to authorise the treatment.[25] More recent authorities suggest that unless the proposed surgery is in consequence of an immediate physical problem that warrants the procedure, the court's authorisation should be sought before serious, and irreversible procedures are performed. However, minors do not have an overriding veto when a court makes a decision that the court determines is in the best interests of the child.[26]

An inability to consent

In the case of the mentally ill, or incompetent, the state of the law is somewhat unclear.[27] Generally, the court’s parens patriae prevails.[28]

In the instance of a patient being rendered temporarily incapable of consenting to treatment, as often occurs in classic emergency situations, a surgeon carrying out necessary surgery on an emergency basis is not guilty of battery, provided that the surgeon treats the patient in accordance with the surgeon's clinical judgement and pursuant to the patient's best interests.[29] Importantly, in these situations, the patient's next of kin has no legal right of veto, nor authority to refuse treatment on the patient's behalf.[30]

Criminal acts

The criminal law generally refuses to recognise consent, given by an injured party, as a defence to a heinous criminal act.[31] The civil law, however, is more forgiving.

In Murphy v Culhane[32] it was held that the defence of consent, in certain circumstances, is available in respect of a crime. The position was furthered in Bain v Altoft,[33] in which Gibbs J held that consent is a defence to an action in trespass, irrespective of whether the act consented to was illegal.

However, in certain circumstances, if the illegal act for which consent is alleged to have been given results in grievous injury, the courts may determine to disregard consent.[34]

Withdrawing consent

Consent may be withdrawn, at any time, and from time to time. Generally, consent is an ineffective defence if, at the time of the tort, it had been withdrawn. In certain circumstances, however, courts have not been prepared to give effect to a withdrawal of consent.[35]

SELF-DEFENCE

It is trite law that if you are attacked you may defend yourself. And you need not wait until you are actually battered before you respond; one may act in response to the threat of immediate harm.[36]

In Palmer v R, the Privy Council defined self-defence in the following terms:

‘It is a straightforward conception. It involves no abstruse legal thought. It requires no set of words by way of explanation. No formula need be employed in reference to it. Only common sense is needed for its understanding. It is both good law and good sense that a man who is attacked may defend himself. It is both good law and good sense that he may do, but may only do, what is reasonably necessary. Everything will depend upon the particular facts and circumstances.’ [37]

In defending oneself, the force used must not exceed that which is necessary in the prevailing circumstances, to defend oneself.[38] What is reasonable force is a question of fact. The court must give ‘proper weight’ to the circumstances with which the defendant was presented.[39] Whether the defendant could have escaped is a legitimate consideration.[40]

The approaches of the criminal law and civil law differ in their interpretation of the circumstances in which the defendant may have had a mistaken view of the facts and the seriousness of the attack. In the criminal law, the facts are assessed as the defendant ‘honestly’ believed them.[41] In the civil context, the defendant's belief must be ‘both honest and reasonable’.[42]

In circumstances in which a defendant is liable for use of excessive force, and who is thus deprived of a defence of consent and self-defence, they may have available a counterclaim, against the plaintiff, for the initial attack.[43]

DEFENCE OF OTHERS

As one may act in self-defence, one may also act in the defence of others.[44] As with self-defence, the degree of force employed to defend another must be in proportion to the degree of force used in the attack.[45]

DEFENCE OF PROPERTY

One may defend property, being land or chattels, from threat or trespass. The power to do so, however, extends only to a possessor of title or licence.[46]

Again, the person with exclusive right and possession to the chattel or property that is threatened may only use a proportionate degree of force in its defence. Where a trespass is committed with force, counterforce may accordingly be applied.[47]

However, if the intrusion is threatened without physical harm, one may only use the mildest of force to prevent such intrusion.[48] Traditionally, the law has not valued an interest in property as highly as it has valued a person’s safety, and accordingly there is a greater degree of scrutiny employed by the courts in determining whether the degree of force was reasonable in the prevailing circumstances.

In Hackshaw v Shaw,[49] the High Court noted the danger of excessive force used to protect property. This case concerned a farmer who had petrol repeatedly stolen from a bowser on his property. He armed himself with two firearms, and lay in wait one evening in an attempt to obtain evidence in favour of a prosecution. As the thieves approached, the farmer fired at their vehicle, striking a woman who was crouching, unseen to the farmer, in the car. Ultimately, the farmer was held liable for the injured party's losses.

Similarly, in Martin v The Queen,[50] a farmer, who shot two intruders, was held to have been acting unreasonably.

NECESSITY

In particular circumstances, one may be justified in infringing the rights and interests of another, for the purpose of preventing harm to that person's interests, or the interests of others. In order for the defence of necessity to be raised, the following two criteria must be satisfied:

 There must be imminent danger, or at least the appearance of such, to a reasonable person; and

 The steps taken must be reasonably necessary in the prevailing circumstances.

As a defence of necessity often involves the infringement of a third party's interests, the criteria ought to be strictly construed.[51]

The defence of necessity extends as a defence in both the public and private domains. In the public domain, the defence of necessity involves invading the rights of an individual in order to protect the community. The defence of private necessity arises when a party invades the legitimate interests of another party in order to protect a third party or property from harm.

In determining whether the defence is available, one must consider whether the actions taken by the defendant were necessary for the protection of a person or property, even though an innocent person may suffer a loss. Balkin and Davis provide the example of a defendant protecting his or her land from a perceived threat of a flood, even though the measures taken by the defendant cause the flooding of a neighbour's property.[52]

The defence is not available, however, in circumstances in which the owner of a property or chattel, who is aware of a danger or the imminent threat of harm to it, does not take any steps to protect it from that harm. A volunteer (the defendant), who has no personal interest in the protection of the property or chattel, is unable to plead necessity in his or her defence if acting to protect the otherwise abandoned or neglected property or chattel.[53]

Additionally, the defence of necessity will not be available where the defendant himself or herself has been negligent in performing an act in order to avert what he or she considers to be imminent harm.

DISCIPLINE

Historically, a husband and/or father was entitled to employ a degree of force in order to obtain order and obedience within his household. Fortunately, such an archaic idea has now been abandoned.

Today, children may only be deprived of their liberty to protect them from harm or as a form of ‘reasonable punishment’.[54] While a parent has retained, to some extent, the power of defensive discipline, such discipline may only be deployed in circumstances in which the punishment is moderate and reasonable, and reflects community standards. The availability of the defence will also be determined in the context of the child's age, physique and mentality.

Similarly, corporal punishment of pupils by teachers is a thing of the past. Historically, teachers were permitted to discipline pupils as an extension of their delegation of parental authority. Sappideen and Vines explain, however, that with the advent of compulsory schooling, such practices have ‘become threadbare’.[55] Nonetheless, the ability to impose detention, or the restriction of a pupil's liberty, remains, where a ‘serious breach’ of school or other relevant policy has occurred.

As always, the punishment must be reasonable in the prevailing circumstances, and must take into account the nature of the offence, the age, physique and sex of the child, past behaviour, and all other material considerations.[56]

LEGAL AUTHORITY

Law enforcement officers, as well as private citizens, are entitled to arrest, and to detain persons, but only as specified by statute or the common law.

Police officers may arrest individuals by warrant, without a warrant, or pursuant to their statutory powers. However, the law mandates that prior to affecting an arrest, the arrestor must have reasonable cause to do so.

Further, it is trite law that the degree of force used, when arresting and/or detaining a person, is determined by reference to whether the arrest is confrontational, or a fugitive arrest.

The use of force, in a confrontational arrest, must be such as was reasonably necessary, to effect the arrest in the prevailing circumstances. As in self-defence, the degree of force used by the arrestor must be in proportion to the degree of resistance.

The use of force in a fugitive arrest condones the killing of a person who, by flight, seeks to avoid an arrest for serious matters, but not for misdemeanours.[57]

Generally, effecting an arrest without a warrant will be unlawful unless the arresting officer informs the person being arrested, at the time of the arrest, of the true grounds for the arrest.[58] If the circumstances of the arrest are such that the person being detained must know of the general nature of the offence, there will not be a need to provide reasons as to why the person is being arrested.[59]

JUDICIAL IMMUNITY

Persons exercising judicial functions in court are immune from civil liability for anything which they have done in their capacity as judicial officers, but this does not extend to managerial acts.[60] The immunity exists so as to ensure the independence of judges, and the administration of justice without fear or favour.[61]

Military acts

Generally, at common law, members of military tribunals are immune from civil suits arising from their actions during the course of military discipline, irrespective of whether those actions cause injury or a loss of liberty. There is some dispute as to whether the immunity extends, however, to malicious acts.[62]

The basis for the immunity is not dissimilar to that of judicial immunity, namely one of public policy and to maintain military discipline.

In Australia, the defence of ‘military acts’ has been espoused within s193 of the Defence Force Discipline Act 1982 (Cth), which bestows immunity, equivalent to a justice of the High Court, to all members of court marshals, a judge advocate, a defence magistrate and summary authorities or reviewing authorities, in performing their duties as a member, judge, advocate, magistrate or authority.

PARLIAMENTARY PRIVILEGE

Parliamentary privilege is a defence, most commonly adopted in defamation. The privilege, and the defence, attaches to statements made by members of parliament.

The privilege attaches to those statements which occur during the course of parliamentary proceedings,[63] and extends to witnesses who testify before parliamentary committees.[64]

Despite this privilege, the parliament itself may treat conduct which it determines improper as contemptuous, and discipline the offender, although such proceedings are very rare.[65]

Dean-Lloyd Del Monte is a barrister at Jack Shand Chambers, Sydney. He practises extensively in common law, criminal law and equity in all courts in NSW, the ACT and Queensland. He has a particular focus on matters involving intentional torts, public liability, motor vehicle accident and common law claims. He also maintains a strong criminal practice. PHONE (02) 9233 7711 EMAIL delmonte@jackshand.com.au.


[1] Fleming JG, The Law of Torts, 9th Ed, LBC Information Services, 1998, p84.

[2] Carolyn Sappideen and Prue Vines, Fleming’s The Law of Torts, 10th Edition, Law Book Co, 2011, p87.

[3] [1957] VR604 at 612-13.

[4] Samuel v Payne (1780) 99 ER 230.

[5] Chic Fashions v Jones [1967] EWCA Civ 4; [1968] 2 QB 299.

[6] RP Balkin and JLR Davis, Law of Torts , LexisNexis Butterworths, Australia, 2013, p132.

[7] Sappideen and Vines, note 2 above, p88.

[8] Ibid, p88.

[9] (1888) 31 ILL App 241.

[10] [1890] UKLawRpKQB 153; (1891) 1 QB 86.

[11] Balkin and Davis, note 6 above, p133.

[12] An example of implied consent is contact sports in which the participants all consent to contact arising from the sport: Wright v McLean (1956) 7 DLR (2) d 253.

[13] Chatterton v Gerson (1981) 1 QB 432.

[14] Sappideen and Vines, note 2 above, p90.

[15] R v Billinghurst [1978] Crim LR 553.

[16] Papadimitropoulos v The Queen [1957] HCA 74; (1957) 98 CLR 249.

[17] Michael v Western Australia (2008) 183 A Crim R66 (CA) at 368, per Heenan AJA.

[18] Norberg v Wynrib [1992] 2 SCR 226.

[19] Competence and consent are presumed, irrespective of whether one has severe physical disabilities. See Re B (Adult: Refusal of Medical Treatment) [2002] EWHC 429; [2002] 2 All ER 449.

[20] Airedale NHS Trust v Bland [1992] UKHL 5; [1993] AC 789 at 891.

[21] St George's Healthcare NHS Trust v S [1998] EWCA Civ 1349; [1999] FAM 26 at 43.

[22] Chatterton v Gerson [1981] QB 432 at 433.

[23] Rogers v Whittaker [1992] HCA 58; [1992] 175 CLR 479 at 490.

[24] Gillick v W Norfolk AHA [1985] UKHL 7; [1986] AC 112.

[25] Marion [1992] HCA 15; (1992) 175 CLR 218.

[26] See R v W (1993) FAM 64; AC v Manitoba (Director of Child and Family Services) [2009] LRC 557.

[27] See R v T (Adult: Refusal of Treatment) [1992] EWCA Civ 18; [1993] FAM 95 at 113-114.

[28] See Department of Health v JWB (Marion's case) [1992] HCA 15; (1992) 175 CLR 218.

[29] Wilson v Pringle [1986] EWCA Civ 6; [1987] QB 237.

[30] Re T (Adult: Refusal of Treatment) [1992] EWCA Civ 18; [1993] FAM 95 at 103.

[31] See Kell, ‘Consent to harmful assault under the Queensland criminal code: time for a reappraisal?’ [1994] 68 Alternative Law Journal 363-78.

[32] [1976] EWCA Civ 3; [1977] QB 94.

[33] [1967] Qd R32 at 40-1

[34] See Pallante v Stadiums Pty Ltd (No. 1) [1976] VicRp 29; [1976] VR 331 at 340.

[35] See Bolwell Fibreglass Pty Ltd v Foley [1984] VicRp 8; [1984] VR 97 at 101-12.

[36] Sappideen and Vines, see note 2 above, p 97.

[37] Palmer v R [1970] UKPC 2; [1971] AC 814 at 831-2.

[38] Sappideen and Vines, see note 2 above, p98.

[39] Zecevic v DPP (VIC) [1987] HCA 26; (1987) 162 CLR 645 at 663.

[40] Zecevic and Fontin v Katapodis [1962] HCA 63; (1962) 108 CLR 177 at 182.

[41] See the Crimes Act 1900 (NSW), s418; the Criminal Law Consolidation Act 1935 (SA), s15 (1) (b); Criminal Code (TAS) s46; R v Williams (Gladstone) [1987] 3 All ER 411.

[42] Ashley v Chief Constable of Sussex Police [2008] UKHL 25; [2008] 1 AC 962.

[43] Sappideen and Vines, op cit, p99.

[44] Ibid, p99.

[45]Sappideen and Vines, see note 2 above, p100.

[46] See Roberts v Taylor [1845] EngR 360; (1845) 1 CB 117. See also Balkin and Davis, see note 6 above, 147.

[47] Polkinhorn v Wright [1845] EngR 184; (1845) 8 QB 197.

[48] Sappideen and Vines, see note 2 above, p101.

[49] [1984] HCA 84; (1984) 155 CLR 614 at 640.

[50] [2001] EWCA Crim 2245 at [7].

[51] Perka v The Queen [1984] 2 SCR 232 at 250-2.

[52] Balkin and Davis, see note 6 above, 153.

[53] Sherrin v Haggerty [1953] OWN 962.

[54] R v Rahman [1985] 81 Cr App Rep 349.

[55] Sappideen and Vines, see note 2 above, 113.

[56] Balkin and Davis, see note 6 above, 160.

[57] Ibid, 165.

[58] Christie v Leachinsky [1947] UKHL 2; [1947] AC 573 and 587.

[59] R v Welch [2009] ACTSC 35 (66).

[60] Derrick v Attorney-General [1994] 1 NZLR 112.

[61] Gibbons v Duffell [1932] HCA 26; (1932) 47 CLR 520 at 525-6.

[62] Fraser v Balfour (1918) 87 LJKB 1116; Heddon v Evans (1919) 35 TLR 642 and 645.

[63] See Philip Morris Ltd v Dept of Health and Aging [2011] AATA 2015.

[64] R v Murphy (1986) 5 NSWLR 18 at 26-7 per Hunt J.

[65] Balkin and Davis, see note 6 above, p179.


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