Discussion of the defence of consent within the tort of battery context

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“If a person consents to what would otherwise be an unlawful touching, there can be no battery.” The issues which the preceding statement refers to revolve around how the defence of consent operates in the Law of Tort, specifically in relation to intentional trespasses to a person, as well as to what extent the defence can be pleaded. It can be said that the statement above is true to a factual extent, but not as to a legal one. In the author’s view, the statement appears prima facie to be assuming far too much, and indeed for such reason could well be described as a rebuttabble presumption. As we shall see, there are several factors which must be taken into account before deciding whether to allow the defence to succeed or not, and especially when it comes to defining the scope of the word ‘person’ and the phrase ‘consents to’. This is the debate which is going to be discussed during the course of this essay. We will analyse in turn the piecemeal step by step approaches taken by the courts in England in developing this area of the law. However firstly, and for the purposes of this essay, we must define the two terms ‘battery’ and ‘consent’. A battery is simply an intentional and deliberate unlawful contact of another (Wilson v Pringle [1987] QB 237). Consent is a full defence and can be used when a defendant is sued in civil litigation for committing an intentional tort. Hence, it is a complete bar to recovery and the burden of proof is on the claimant to prove that he did not consent. Consent also interrelates very closely with volenti non fit injuria, which occurs when a person who expressly or impliedly agrees with another to run the risk of harm created by another. Here, s/he cannot sue in relation to the damages suffered as a result of the materialisation of the risk. The two defences work in such similar ways that the labels can even be interchanged, though in this article we will merely refer to the defence as one of consent.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Krishan Thakker | Attorney Advertising

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