Intentional Torts: Defences
Defences
Overview:
• Self-Defence
• Consent and Necessity
• Lawful Arrest/Prevention of Crime
• Reasonable Punishment
• Illegality
Self-Defence
Introduction
Ashley v Chief Constable of Sussex
• Lord Rodger of Earlsferry at [51]:
“If a person is actually under a potentially lethal attack or such an attack is imminent, the law recognises that he is
entitled, or permitted, to defend himself and, if need be, to kill his assailant. The killing is justified.”
• Lord Scott at [15].
“whether self-defence to a civil law claim for tortious assault and battery, in a case where the assailant acted in the
mistaken belief that he was in imminent danger of being attacked, requires that the assailant acted under a
mistaken belief that was not only honestly but also reasonably held.”
• Issue = D was unarmed and not attacking the police officer.
• Result = The criminal and civil law adopt different tests for self-defence.
• The test = The defendant’s belief must be both honestly and reasonably held.
• The House of Lords was unanimous on this point of the appeal.
• Lord Scott at [18]:
“As to assault and battery and self-defence, every person has the right in principle not to be subjected to physical
harm by the intentional actions of another person. But every person has the right also to protect himself by using
reasonable force to repel an attack or to prevent an imminent attack. The rules and principles defining what does
constitute legitimate self-defence must strike the balance between these conflicting rights.”
“It is one thing to say that if A's mistaken belief was honestly held he should not be punished by the criminal law. It
would be quite another to say that A's unreasonably held mistaken belief would be sufficient to justify the law in
setting aside B's right not to be subjected to physical violence by A.”
Requirements of Self-Defence:
1) Actual or imminent attack.
2) Reasonable and honest belief in an attack (provocation is not a valid defence).
3) Proportionate force used.
Self-Defence must be Proportionate:
Revill v Newberry [1996] QB 567
• Millet LJ:
“For centuries the common law has permitted reasonable force to be used in defence of the person or property.
Violence may be returned with necessary violence. But the force used must not exceed the limits of what is
reasonable in the circumstances. Changes in society and in social perceptions have meant that what might have
been considered reasonable at one time would no longer be so regarded; but the principle remains the same. The
assailant or intruder may be met with reasonable force but no more; the use of excessive violence against him is
an actionable wrong.”
, Consent
Introduction:
• Consent acts a defence to a trespass claim, as it negates the unlawfulness of D’s action.
• It is sometimes rendered in Latin as “volenti non fit injuria”, which means “no actionable injury can happen to one
who is willing”
Chatterton v Gerson [1981] QB 432:
• In this case, the courts had to discuss the issue of whether apparent consent was real consent.
• Bristow J at 442-3:
“[What] the court has to do in each case is to look at all the circumstances and say, "Was there a real consent?" I
think justice requires that in order to vitiate the reality of consent there must be a greater failure of communication
between doctor and patient than that involved in a breach of duty if the claim is based on negligence. …
In my judgment once the patient is informed in broad terms of the nature of the procedure which is intended, and
gives her consent, that consent is real, and the cause of the action on which to base a claim for failure to go into
risks and implications is negligence, not trespass.”
Conditions and Terms (around claims of false imprisonment):
Robinson v Balmain New Ferry Co [1910] AC 295
• Refusal to pay exit charge for the pier
• No liability as D had accepted the T&C’s which amounted to his consent. He also had another way of leaving the
pier by catching the ferry.
Herd v Weardale Steel Co [1915] AC 67
• Coal worker in mineshaft case
• Viscount Haldane LC at 72:
“So, my Lords, it is not false imprisonment to hold a man to the conditions he has accepted when he goes down a
mine.”
Pile v Chief Constable of Merseyside Police [2020]EWHC 2472 (QB) (OBITER)
• Concerns drunk women in custody, who had vomit all over herself. As she was in such a state, 3 female officers
tried to change her clothes, they couldn’t get her into the clean clothes, so they left her in the cell in her
underwear.
• The C brought many claims including battery. The courts had to consider consent and found there was no battery
as C had impliedly consented to having their soiled clothes changed.
• 37. Normally, someone in custody who has vomited all over themselves, but lacks the ability to articulate their
preference, may be safely taken to have given implied consent to the removal of their outer clothing and its
replacement by clean clothing so long as all reasonable considerations of safety and the preservation of dignity
have been taken into account.
• Is this right???
Consent and Capacity:
• NB: the right to consent is important, but one may, due to some impairment, be unable to consent or refuse
consent to a trespass.
• In Chatterton v Gerson [1981], the courts deemed that although the patient wasn’t fully informed of the risks of the
operation, she broadly understood the nature of the procedure, so consent was valid.
St George’s Healthcare NHS Trust v S [1999] Fam. 26
• Pregnant woman admitted to hospital. She refused an induced delivery, despite being informed that her life and
that of her unborn child were in danger otherwise.
• S was detained under the Mental Health Act 1983, and Doctors performed a Caesarean section, having obtained
a Court declaration.
• S subsequently sued the Hospital in trespass.
• Judge LJ (for the Court) at 50:
“In our judgment while pregnancy increases the personal responsibilities of a woman it does not diminish her
entitlement to decide whether or not to undergo medical treatment. Although human, and protected by the law in a
number of different ways …, an unborn child is not a separate person from its mother. Its need for medical
assistance does not prevail over her rights. She is entitled not to be forced to submit to an invasion of her body
against her will, whether her own life or that of her unborn child depends on it. …Her right is not reduced or
diminished merely because her decision to exercise it may appear morally repugnant. The declaration in this case
involved the removal of the baby from within the body of her mother under physical compulsion. Unless lawfully
Defences
Overview:
• Self-Defence
• Consent and Necessity
• Lawful Arrest/Prevention of Crime
• Reasonable Punishment
• Illegality
Self-Defence
Introduction
Ashley v Chief Constable of Sussex
• Lord Rodger of Earlsferry at [51]:
“If a person is actually under a potentially lethal attack or such an attack is imminent, the law recognises that he is
entitled, or permitted, to defend himself and, if need be, to kill his assailant. The killing is justified.”
• Lord Scott at [15].
“whether self-defence to a civil law claim for tortious assault and battery, in a case where the assailant acted in the
mistaken belief that he was in imminent danger of being attacked, requires that the assailant acted under a
mistaken belief that was not only honestly but also reasonably held.”
• Issue = D was unarmed and not attacking the police officer.
• Result = The criminal and civil law adopt different tests for self-defence.
• The test = The defendant’s belief must be both honestly and reasonably held.
• The House of Lords was unanimous on this point of the appeal.
• Lord Scott at [18]:
“As to assault and battery and self-defence, every person has the right in principle not to be subjected to physical
harm by the intentional actions of another person. But every person has the right also to protect himself by using
reasonable force to repel an attack or to prevent an imminent attack. The rules and principles defining what does
constitute legitimate self-defence must strike the balance between these conflicting rights.”
“It is one thing to say that if A's mistaken belief was honestly held he should not be punished by the criminal law. It
would be quite another to say that A's unreasonably held mistaken belief would be sufficient to justify the law in
setting aside B's right not to be subjected to physical violence by A.”
Requirements of Self-Defence:
1) Actual or imminent attack.
2) Reasonable and honest belief in an attack (provocation is not a valid defence).
3) Proportionate force used.
Self-Defence must be Proportionate:
Revill v Newberry [1996] QB 567
• Millet LJ:
“For centuries the common law has permitted reasonable force to be used in defence of the person or property.
Violence may be returned with necessary violence. But the force used must not exceed the limits of what is
reasonable in the circumstances. Changes in society and in social perceptions have meant that what might have
been considered reasonable at one time would no longer be so regarded; but the principle remains the same. The
assailant or intruder may be met with reasonable force but no more; the use of excessive violence against him is
an actionable wrong.”
, Consent
Introduction:
• Consent acts a defence to a trespass claim, as it negates the unlawfulness of D’s action.
• It is sometimes rendered in Latin as “volenti non fit injuria”, which means “no actionable injury can happen to one
who is willing”
Chatterton v Gerson [1981] QB 432:
• In this case, the courts had to discuss the issue of whether apparent consent was real consent.
• Bristow J at 442-3:
“[What] the court has to do in each case is to look at all the circumstances and say, "Was there a real consent?" I
think justice requires that in order to vitiate the reality of consent there must be a greater failure of communication
between doctor and patient than that involved in a breach of duty if the claim is based on negligence. …
In my judgment once the patient is informed in broad terms of the nature of the procedure which is intended, and
gives her consent, that consent is real, and the cause of the action on which to base a claim for failure to go into
risks and implications is negligence, not trespass.”
Conditions and Terms (around claims of false imprisonment):
Robinson v Balmain New Ferry Co [1910] AC 295
• Refusal to pay exit charge for the pier
• No liability as D had accepted the T&C’s which amounted to his consent. He also had another way of leaving the
pier by catching the ferry.
Herd v Weardale Steel Co [1915] AC 67
• Coal worker in mineshaft case
• Viscount Haldane LC at 72:
“So, my Lords, it is not false imprisonment to hold a man to the conditions he has accepted when he goes down a
mine.”
Pile v Chief Constable of Merseyside Police [2020]EWHC 2472 (QB) (OBITER)
• Concerns drunk women in custody, who had vomit all over herself. As she was in such a state, 3 female officers
tried to change her clothes, they couldn’t get her into the clean clothes, so they left her in the cell in her
underwear.
• The C brought many claims including battery. The courts had to consider consent and found there was no battery
as C had impliedly consented to having their soiled clothes changed.
• 37. Normally, someone in custody who has vomited all over themselves, but lacks the ability to articulate their
preference, may be safely taken to have given implied consent to the removal of their outer clothing and its
replacement by clean clothing so long as all reasonable considerations of safety and the preservation of dignity
have been taken into account.
• Is this right???
Consent and Capacity:
• NB: the right to consent is important, but one may, due to some impairment, be unable to consent or refuse
consent to a trespass.
• In Chatterton v Gerson [1981], the courts deemed that although the patient wasn’t fully informed of the risks of the
operation, she broadly understood the nature of the procedure, so consent was valid.
St George’s Healthcare NHS Trust v S [1999] Fam. 26
• Pregnant woman admitted to hospital. She refused an induced delivery, despite being informed that her life and
that of her unborn child were in danger otherwise.
• S was detained under the Mental Health Act 1983, and Doctors performed a Caesarean section, having obtained
a Court declaration.
• S subsequently sued the Hospital in trespass.
• Judge LJ (for the Court) at 50:
“In our judgment while pregnancy increases the personal responsibilities of a woman it does not diminish her
entitlement to decide whether or not to undergo medical treatment. Although human, and protected by the law in a
number of different ways …, an unborn child is not a separate person from its mother. Its need for medical
assistance does not prevail over her rights. She is entitled not to be forced to submit to an invasion of her body
against her will, whether her own life or that of her unborn child depends on it. …Her right is not reduced or
diminished merely because her decision to exercise it may appear morally repugnant. The declaration in this case
involved the removal of the baby from within the body of her mother under physical compulsion. Unless lawfully
