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Hausfeld, Steven --- "Consent Defence To an Intentional Tort Moon v Whitehead [2015] ACTCA 17" [2015] PrecedentAULA 66; (2015) 130 Precedent 46


CONSENT DEFENCE TO AN INTENTIONAL TORT

MOON V WHITEHEAD [2015] ACTCA 17

By Steven Hausfeld

The older intentional torts, such as assault and battery, are less often litigated than is negligence. We can benefit from a reminder of some of the fundamentals of intentional torts, including principles concerning their defences. This recent decision of the ACT Court of Appeal (ACTCA) may prove useful.

At first instance, the Master found that Mr M, the appellant, had engaged in sex with the respondent, Ms W, without her consent.[1] By the time of the trial, Mr M had admitted that sexual intercourse had occurred. Mr M was Ms W’s boss at the time. In this civil matter, battery was proven and the Master found that Ms W suffered significant consequential psychological injuries. Mr M was ordered to pay damages of $668,856 plus costs. $10,000 of this was aggravated damages because of the manner in which senior counsel for Mr M conducted the defence.

Mr M appealed on several grounds, not all of which were addressed separately in submissions before the ACTCA. The grounds essentially claimed that the Master at first instance had erred in finding that Ms W had not consented to the sex. The aggravated damages were also appealed.

The ACTCA’s analysis began with the basic point that once the defendant’s intentional interference with the plaintiff’s physical integrity is proven, the battery is established, unless one of the defences is established. Consent is one such defence.[1] Therefore, the admitted sexual intercourse amounted to a battery unless Mr M could prove that it had been with consent. Mr M bore the onus of proof that consent had been given.

In addressing the appellant’s submissions, the ACTCA noted that consent was not to be judged in terms of what a reasonable person might have thought or done. The standard of the reasonable person is relevant in assessing negligence. However, it is not relevant in determining whether consent was given. Accordingly, it was not relevant what Mr M thought about consent or what a reasonable person in his position might have thought about consent.

The ACTCA noted that consent could be expressed or inferred from conduct but the consent must be actual consent not presumed consent in the mind of the appellant or in the mind of a reasonable person in the appellant’s position.

Neither innocent nor reasonable mistakes are generally defences to an intentional tort, because neither fault nor negligence is relevant. In the context of the current case, a mistaken, or even a reasonable, belief that consent was given is no defence. The only real issue is whether consent was actually given. In the present case, the ACTCA was not satisfied that the Master had made any error in concluding that consent had not been given. Further, the ACTCA found that the appellant had not made out his claims that the Master’s reasons for his decision were inadequate. The ACTCA accepted that the Master’s relevant findings were clearly based on his positive credit findings concerning Ms W and his negative credit findings concerning Mr M. These credit findings themselves were well justified in the Master’s judgment.

On the other hand, the ACTCA was satisfied that the Master had erred in awarding aggravated damages for the manner in which the trial had been conducted by the defendant because this basis for aggravated damages had not been submitted upon at first instance; thus, procedural fairness had been denied.

The appeal was successful in having the $10,000 aggravated damages overturned but otherwise unsuccessful. Ms W retained the vast majority of her judgment.

Steven Hausfeld is a barrister at the Blackburn Chambers, Canberra. He was counsel at first instance and on appeal for Ms W. EMAIL hausfeld@blackburnchambers.com.au.


[1]. Whitehead v Moon [2013] ACTSC 243.

1.

[1]. Other defences include self-defence, defence of others, defence of property.

1.


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