Week 4 Defenses Exclusion of Intentional Torts from the CLA THE LAW OF TORTS Week 4 Defenses Exclusion of Intentional Torts from the CLA

DEFENCES Consent Necessity Self defence and the defence of others Defence of property

CONSENT An interference or injury to which a person has consented cannot be wrongful   It is for the defendant has to raise and prove consent If the defendant proves that the plaintiff has consented to the acts in question then a claim in assault, battery or false imprisonment will not succeed.( Hart v Herron [1984] Aust Torts Reports ¶80–201 at 67,814)

VALID CONSENT To be valid, consent must be procured without fraud or coercion: ( R vWilliams;) To invalidate consent, fraud must relate directly to the conduct itself, and not to an incidental issue: (Papadimitropoulos v R (1957) 98 CLR 249; R v Linekar (the Times, 1994)

Cases R v Linekar Papadimitropoulos v R A prostitute had sexual intercourse with the defendant on the understanding that he would pay her £25. He in fact never paid and never intended to pay. It was held that the fraud did not vitiate consent as to the nature or quality of the act. The defendant’s conviction for rape was quashed Papadimitropoulos v R Victim has sexual relations with accused in the belief that they were legally married. Victim later discovers, the had not in fact been married and that they had only completed documents regarding the intention to marry. Held consent was valid

MEDICAL CASES

CONSENT IN MEDICAL CASES Medical practitioners must obtain consent from the patient to any medical or surgical procedure. Absent the patient’s consent, the practitioner who performs a procedure will have committed a battery and trespass to the person. Note that consent to one procedure does not imply consent to another. Subject to any possible defence of necessity, the carrying out of a medical procedure that is not the procedure, the subject of a consent, will constitute a battery.

Exercise P was admitted for abdominal surgery for which he duly consented. While he was under general anesthetic, his surgeon noticed a sebaceous cyst on the top of his head. P is bald and the so the surgeon decided to do him a favour and get rid of the unsightly cyst. He removed it without incident. In the recovery ward, P was incensed when he discovered what had happened. His cyst had apparently been the source of many a free pint of ale. He habitually wore a bowler hat and it had been his habit to place a second, tiny bowler hat on top of the sebaceous cyst itself. Whenever he removed his hat at the local pub to expose the tiny bowler underneath, sitting on the cyst, this invariably caused general amusement and free shouts of beer. P was upset at the loss of the cyst, his one major social asset.

P has been advised that since he did not suffer any “real damage” he can hardly expect to succeed in a tort action against the surgeon. Do you agree?

‘EXTRA’ OR UNECESSARY MEDICAL PROCEDURE NOT AUTHORISED

Exercise P saw a dental surgeon following injury at work. Over a period of 12 months the surgeon performed root-canal treatment and fitted crowns on all of P’s teeth at considerable cost Surgeon later admitted the crowns were unnecessary and he had been negligent Issue could P argue trespass?

Dean v Phung [2012] NSWCA 223 Consent is validly given in respect of medical treatment where the patient has been given basic information as the nature of the proposed procedure. If however, it could be demonstrated objectively that a procedure of the nature carried out was not capable of addressing the patient’s problem, there would be no valid consent. It is necessary to distinguish between core elements of the procedure and peripheral elements, including risks of adverse outcomes. Wrong advice about the latter may involve negligence but will not vitiate consent. Burden of proof will lie on the practitioner to establish the existence of a valid consent where that is in issue.

COMPETING PRINCIPLES A competent adult’s right of autonomy or self-determination, or the right to control his or her own body, versus the interest of the State in protecting and preserving the lives and health of its citizens.

Hunter and New England Area Health Service v A (2009) 74NSWLR 88 A had prepared an advance care directive stating that he would refuse dialysis. He then developed renal failure and was being kept alive by mechanical ventilation and kidney dialysis. McDougall J concluded that, when in conflict, the former principle should generally prevail

Re JS [2014] NSWSC 302 JS a 27 year old man requested hospital to stop providing him with life-sustaining treatment. The hospital sought a declaration from the NSW Supreme Court that it was entitled to discontinue the treatment. JS had been a quadriplegic since the age of seven. And had needed full invasive ventilator support via a tracheotomy since that age. In 2013 his lungs collapsed. His condition worsened and required full-time care and treatment in hospital. His quality of life was significantly impaired. JS expressed a wish for that treatment to stop on his 28th birthday. Issue whether hospital could comply with his request: Held: Medical practitioners would be acting lawfully if they acted in accordance with JS’s re

MATURE MINORS

GILLICK COMPETENCY Gillick v West Norfolk and Wisbech Area Health Authority [1986] 1 AC 112, A mature minor who is capable of understanding the nature and consequences of a particular type of medical treatment, can provide effective consent to such treatment Secretary Department of Health and Community Services v JWB (Marion’s case) (1992) 175 CLR 218 s 49(2) of the Minors (Property and Contracts) Act 1970 (NSW) provides that children over the age of 14 are able to consent to medical and dental treatment

Children and Young Persons (Careand Protection) Act 1988(NSW)  Protection to medical practitioners who give emergency or urgent medical treatment in circumstances where such treatment is necessary to save the life of a minor The Act is however silent on whether a mature minor can refuse treatment

THE PARENS PATRIAE JURISDICTION OF COURTS It originates from the Crown’s obligation to make decisions for those who are not able to care for themselves, such as minors or those of “unsound mind” The jurisdiction of the court is invoked with caution: the court must act cautiously, not as if it were a private person acting with regard to his own child, and acting in opposition to the parent only when judicially satisfied that the welfare of the child requires that the parental right should be suspended or superseded ( In Re O’Hara [1900] 2IR 232 The guiding principle is the best interest or welfare of the child within its jurisdiction

X v The Sydney Children’s Hospitals Network [2013] NSWCA 320 X a teenager refused to receive his own treated blood products. The treatment was necessary to preserve his life; his refusal was based on his religious beliefs. His refusal was fully supported by his parents who were of the same religious persuasion. The court, exercising its “parens patriae” jurisdiction, essentially overrode these genuine beliefs, holding that the welfare of the patient required that the primary judge make the order permitting the treatment.  

CONSENT IN SPORTS http://www.youtube.com/watch?v=W-BmKXU12yE Alex McKinnon has been diagnosed as a quadriplegic and warned by doctors he may never walk again after this tackle. Jordan McLean was suspended for seven weeks after being found guilty of a 'dangerous throw' on Newcastle Knights player Alex

CONSENT IN SPORTS (2) In contact sports, consent is not necessarily a defence to foul play (McNamara v Duncan; Hilton v Wallace) To succeed in an action for trespass in contact sports however, the P must of course prove the relevant elements of the tort. Giumelli v Johnston

SELF DEFENCE, DEFENCE OF OTHERS A P who is attacked or threatened with an attack, is allowed to use reasonable force to defend him/herself In each case, the force used must be proportional to the threat; it must not be excessive. (Fontin v Katapodis) D may also use reasonable force to defend a third party where he/she reasonably believes that the party is being attacked or being threatened

THE DEFENCE OF PROPERTY D may use reasonable force to defend his/her property if he/she reasonably believes that the property is under attack or threatened What is reasonable force will depend on the facts of each case, but it is debatable whether reasonable force includes ‘deadly force’ (See CLA 52(3) for the scope )

Section 52 CLA No civil liability for acts in self-defence (1) A person does not incur a liability to which this Part applies arising from any conduct of the person carried out in self-defence, but only if the conduct to which the person was responding: (a) was unlawful, or (b) would have been unlawful if the other person carrying out the conduct to which the person responds had not been suffering from a mental illness at the time of the conduct. (2) A person carries out conduct in self-defence if and only if the person believes the conduct is necessary: (a) to defend himself or herself or another person, or (b) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or (c) to protect property from unlawful taking, destruction, damage or interference, or (d) to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass,

S52 Cont’ed and the conduct is a reasonable response in the circumstances as he or she perceives them. (3) This section does not apply if the person uses force that involves the intentional or reckless infliction of death only: (a) to protect property, or (b) to prevent criminal trespass or to remove a person committing criminal trespass.

Section 53 CLA Damages limitations apply even if self-defence not reasonable response If section 52 would operate to prevent a person incurring a liability to which this Part applies in respect of any conduct but for the fact that the conduct was not a reasonable response in the circumstances as he or she perceived them, a court is nevertheless not to award damages against the person in respect of the conduct unless the court is satisfied that: (b) in the circumstances of the case, a failure to award damages would be harsh and unjust.

PROVOCATION Provocation is not a defence in tort law. It can only be used to avoid the award of exemplary damages: Fontin v Katapodis; Downham Ballett and Others

The Case for Allowing the Defence of Provocation The relationship between provocation and contributory negligence The implication of counterclaims Note possible qualifications Fontin v Katapodis to: Lane v Holloway Murphy v Culhane See Blay: ‘Provocation in Tort Liability: A Time for Reassessment’,QUT Law Journal, Vol. 4 (1988) pp. 151-159.

NECESSITY The defence is allowed where an act which is otherwise a tort is done to save life or property: urgent situations of imminent peril

Urgent Situations of Imminent Peril The situation must pose a threat to life or property to warrant the act: Southwark London B. Council v Williams Lord Denning MR: ‘If homelessness were once admitted as a defence to trespass, no one’s house could be safe. Necessity would open a door no man could shut. It would not only be those in extreme need who would enter. There would be others who would imagine they were in need or would invent a need, so as to gain entry. The plea would be an excuse for all sorts of wrongdoing. So the courts must refuse to admit the plea of necessity to the hungry and the homeless: and trust that their distress will be relieved by the charitable and good.’

The defence is available in very strict circumstances R v Dudley and Stephens D’s act must be reasonably necessary and not just convenient Murray v McMurchy In re F Cope v Sharp

INSANITY Insanity is not a defence as such to an intentional tort. What is essential is whether D by reason of insanity was capable of forming the intent to commit the tort. (White v Pile; Morris v Marsden)

INFANTS Minority is not a defence as such in torts. What is essential is whether the D understood the nature of his/her conduct (Smith v Leurs; Hart v AG of Tasmania)

DISCIPLINE PARENTS A parent may use reasonable and moderate force to discipline a child. What is reasonable will depend on the age, mentality, and physique of the child and on the means and instrument used. (R v Terry)

ILLEGALITY: Common Law Persons who join in committing an illegal act have no legal rights inter se in relation to torts arising directly from that act. Hegarty v Shine Smith v Jenkins (D injured while he and accomplice drive stolen vehicle) Jackson v Harrison ( P not barred from claiming merely because he was aware that D had lost his license) Gala v Preston

ILLEGALITY: The CLA Section 54: Criminals not to be awarded damages A court is not to award damages in respect of liability to which this Part applies if the court is satisfied that: (a) the death of, or the injury or damage to, the person that is the subject of the proceedings occurred at the time of, or following, conduct of that person that, on the balance of probabilities, constitutes a serious offence, and (b) that conduct contributed materially to the death, injury or damage or to the risk of death, injury or damage. (2) This section does not apply to an award of damages against a defendant if the conduct of the defendant that caused the death, injury or damage concerned constitutes an offence (whether or not a serious offence).

The CLA and Intentional Torts S3B:(1) The provisions of this Act do not apply to or in respect of civil liability (and awards of damages in those proceedings) as follows: (a) civil liability of a person in respect of an intentional act that is done by the person with intent to cause injury or death or that is sexual assault or other sexual misconduct committed by the person-the whole Act except: … (ii) Part 7 (Self-defence and recovery by criminals) in respect of civil liability in respect of an intentional act that is done with intent to cause injury or death, and

The Exclusion of Intentional torts from the CLA New South Wales v Ibbet: Assault and trespass to land: The restrictions on the award of exemplary and aggravated damages under the CLA held not to apply Honda v NSW [2005]: wrongful arrest, malicious prosecution and false imprisonment by a police officer. Issue whether injury in s3B included only bodily injury. Held injury not limited to bodily injury Zorom Enterprise v Zabow: P suffered head injuries as a result of an attack by a security guard employed by D. P sued D for vicarious liability. D argued that CLA restrictions applied because s3B only excluded only the intentional acts of the person who actually committed torts and not the D who was only vicariously liable. Argument was rejected

s3B: ‘In respect of ….’ NSW v Bujdoso [2007] P was attacked by inmates while in prison. He brought an action the D for their negligence. Since the conduct of the inmates was intentional, the issue was whether the provision of 3B applied to exclude the restrictions of the CLA in the award of damages. The argument centred on the phrase ‘in respect of’ P argued that in respect of was broad and means that D’s liability arose in respect of the intentional act of the inmates and so s3B applied. The court rejected the argument. In respect of interpreted to refer to the person who did the act and the person whose negligence led to the doing of the act.