TORT 1.6 DEFENCES TO TRESPASS TO PERSON
DEFENSES TO TRESPASS TO PERSON
- Self-defense or defense of property: Note that the defense/reply should be proportionate-Lane v. Holloway[1].
- Lawful Authority: e.g. the police may confine a suspect. A captain of a ship may have likewise authority and restrain entry or exit if it is necessary for the safety of the ship.
- Parental Authority: Section 295 of the Criminal code. A parent or guardian may reasonably punish or confine the child or ward. A school master may reasonably discipline a child.
- Consent. Volenti non fit injuria. Consent may be implied in certain situations like day to day hustles, a sportsman cannot sue for trespass to person-Wright v. Mclean except the act was a foul against the rules of the game done with the intention to cause harm. Hearde v. Weardale Steel Coal and Coke Co. R v. Billinghurst[2], R v. Williams, Wright v. Maclean, Leidh v. Bladstone[3]. Wilson v. Pringles.Although consent may be vitiated in some instances. In R v. Williams, the defendant told the girl that having sex with him would improve her voice. It was held that the consent of the naïve girl was no consent.
- Lawful Arrest.
- Necessity: In F v. West Beckshire Health Authority.
- Exturpi causa non Oritur action[4].
[1] 1968 1qb 379 The defendant replied the hit from the claimant with a savage blow on the claimant’s eye that landed him in hospital for surgery. When the claimant sued for damages, he was granted. It was held that the blow used in defending was not proportionate.
[2] During a rugby match and in an off the ball incident, B punched G on his face thus fracturing his jaw. B was charged with inflicting grievous bodily harm. The defence argued that rugby is a game of force and the player is taken to have impliedly consented to any form of bodily harm. The court held that a line needs to be drawn between force used in the course of play and that used outside play. Thus B was found liable.
[3] 1909 26 tlr139
[4] Which simply means; a legal cause cannot arise from an illegal action. E.g. where A and B go to rob a bank and A escapes with the bag of money and doesn’t communicate with B. If B persistently calls A, scratches his car and finally sues for the money to be shared, A can use the defence of exturpi to vitiate B’s claim.
