Defences to Intentional Torts

Clary Castrission

MISTAKE• An intentional conduct done under a

misapprehension• Mistake is generally not a defence in

tort law– Basely v Clarkson (1682)– Cowell v Corrective Services Commission

(1988)

CONSENT

• In a strict sense, consent is not a defence as such because in trespass, the absence of consent is an element of the tort– See: Blay; ‘Onus of Proof of Consent in an Action

for Trespass to the Person’ Vol. 61 ALJ (1987) 25

– But McHugh J in See Secretary DHCS v JWB and SMB (Marion’s Case) 1992 175 CLR 218

VALID CONSENT• Must be given to act complained of

– Mullloy v Hop Sang [1935]

• Must be no vitiating factors to nullify consent– Hegarty v Shine (1878)

• Consent must be genuine– Gillick v West Norfolk Health Authority (1986)– Re F (1990)

CONSENT IN SPORTSCONSENT IN SPORTSPeople who pursue recreational activities regarded as sports often do so in hazardous circumstances; the element of danger may add to the enjoyment of the activity

Accepting risk, sometimes to a high degree, is part of many sports. A great deal of public money and private

effort, and funding, is devoted to providing facilities for people to engage in individual or team sport. This reflects a view, not merely of the importance of individual autonomy, but also the public benefit of sport. Sporting injuries that result in physical injury are not only permitted: they are encouraged (Gleeson CJ in Agar v Hyde (2000) )

– McNamara v Duncan; Hilton v Wallace– Giumelli v Johnston– McCracken v Melbourne Storm (2005)

STATUTORY PROVISIONS ON CONSENT

• Minors (Property and Contracts) Act 1970 (NSW) ss 14, 49

• Children & Young Persons (Care and Protection Act) 1998 (NSW) ss 174, 175

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– McLelland v Symons (1951)

• In each case, the force used must be proportional to the threat; it must not be excessive.

• 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.

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–Mouse’s Case (1609)–Leigh v Gladstone (1909)

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 (1951)– Morris v Marsden (1952)

INFANTS

• Minority is not a defence as such in torts.

• What is essential is whether the D understood the nature of his/her conduct –Hart v AG of Tasmania (1979)

–Hogan v Gill (1992)

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:Ex turpi causa non oritur actio

• Persons who join in committing an illegal act have no legal rights inter se in relation to torts arising directly from that act.– Smith v Jenkins (1970)

TRESPASS & CLA 2002

• s.3B(1)(a) Civil Liability Act (“CLA”) i.e. CLA does not apply to “intentional torts”, except Part 7 of the Act.

• s.52 (2) CLA subjective/objective test i.e. subjective ("…believes…" & "…perceives…")/ objective ("…reasonable response…") test.

• s.53(1)(a) & (b) CLA i.e. “and” = two limb test; "exceptional" and "harsh and unjust“ are not defined in the Act so s.34 of the Interpretation Act 1987.

• s.54(1) & (2) CLA i.e. "Serious offence" and "offence" are criminal terms so reference should be made to the criminal law to

confirm whether P's actions are covered by the provisions.

Christine was a visiting tourist from France. Last Friday she was returning from the Coogee Bay Hotel to the Sydney CBD on a bus at 8pm with two of her French friends, Sophie and Adele. They had been drinking all afternoon.  

Buoyed by a recent win by the French national soccer team in an international friendly match, Adele began to sing La Marseillaise very loudly. Sophie and Adele were slightly embarrassed by their friend’s slurring attempt at the iconic anthem, and were telling her to stop singing. They were not singing themselves.

The singing prompted an angry reaction on the bus to Adele singing in her native tongue. Roy, who was sitting eight rows in front of Adele yelled at her, “speak English or die!” 

This incited Trent, who was sitting three rows in front of Adele, who yelled to her, “I’ll boxcutter you right now, dog.” Adele could not see any box cutter, but the bus had many passengers standing, and given he was seated in front of her the view was obscured.

Terry, who was a standing passenger next to the door, then joined in and said, "everybody on the bus wants to kill you!" before he got off the bus at the next stop. As the bus was pulling away, Terry picked up a rock and pegged it at the bus window beside where Christine was sitting. The rock shattered the window, and the broken glass was sprayed over Adele’s arm and head. It did not physically hurt her.

Advise Christine to her possible action in tort. Do not discuss damages.

Practice Question One

Practice Question 2On 1 May 2009, Matt was playing rugby union as a member of the Randwick Rugby Union Club first grade team against Gordon Rugby Union Club. Kurt was a member of the Gordon team.

During the course of the game Matt, who was running with the ball, was tackled by Kurt, who lifted Matt and drove his head and neck into the ground. This kind of tackle, otherwise known as a “spear tackle” is extremely dangerous and lies well outside the rules of the game. 

Matt sustained significant spinal cord injuries. 

Advise Matt what possible action or actions in tort that he may take against Kurt.