DEFENCES TO INTENTIONAL

TORTS TO PERSON &

PROPERTY

SUSANNA AFUTU
1. Mistake or inevitable accident
This defence refers to actions where the defendant acted
either unintentionally or without negligentce.

Today the onus on proving intention or negligence is on the

plaintiff
 The plaintiff alleged that he had
been shot by the defendant and
Fowler V that as a result P had sustained
Lanning personal injuries and suffered
loss and damage.

D pleaded that no cause of

action had been disclosed as
the statement of claim did not
disclose that the action was
either intentional or negligent.
Held: There was no cause of action if the injury was neither
intentional nor negligent. It was held further that the onus
of proving negligence for unintentional trespass was on the
plaintiff.
The plaintiff must either allege intention on the part of the
defendant or he must plead facts which constitute
negligence.
Where the occurrence could not have been
avoided by the exercise of reasonable care
on the part of the defendant, i.e.it was
inevitable, then no trespass if not done
intentionally
LETANG V COOPER.
2. Consent

As a general rule, anyone who consents to an act cannot complain

of trespass: volenti non fit injuria.
Consent may be given expressly or by words inferred from conduct.
E.g.: a boxer cannot complain when he is hit in the ring. Also, a
footballer cannot complain if he is kicked in a match, but if the
opponent does something not allowed by the rules like gouging
out the eyes, no consent can be said to have been given for that.
Consent
Consent is a defence if it relates to the act complained of.
It must be freely given. In the case of children, consent by
parents or guardians will be enough.

Consent may be vitiated by fraud where the fraud relates to

the real act of the defendant. But this is not so where the
fraud merely relates to a collateral aspect of the
defendant’s act.
Hegarty v Shine (1878) 14 Cox C.C. 145 : in this case the plaintiff
and the defendant had been cohabiting for two years. The plaintiff
was ignorant of the fact that the defendant was infected with a
veneral disease. She had sex with him and she also got infected.

The lady brought an action against the defendant for breach of

promise to marry and for battery and for infecting her with a veneral
disease.
Cont.
In this case it was held that the
evidence proved that the act was
done with the consent of the
plaintiff and as such she was not
assaulted. The fraud was not a
defence. The contract was held to
be an immoral one and neither
party could be allowed to enter into
the consideration for it whether to
sustain it or to avoid the consent.
R v Williams [1923] 1 KB: in this case the appellant was the
choirmaster at a Presbyterian church. It was arranged that he
should teach two girls (one sixteen years, the other nineteen)
singing and voice production. On two occasions when he gave
lessons, he had sexual intercourse with the sixteen-year girl and
on two other occasions, committed indecent assault on the
nineteen year old. The appellant explained that he obtained the
‘consent’ of the girls but it was held that the consent had been
fraudulently obtained.
Also consent obtained by a show of authority, threat of force or
actual application of force or duress, undue influence or other
inducement is not consent in law, e.g. a policeman or woman who
tells a plaintiff to follow him/her has no defence if plaintiff goes
because of show of authority. But if you consent because you think
the person has a right to touch you, though it turns out to be
wrong, it is valid consent.
Cont.
In Latter v Braddell (1818) 50 L.J. Q.B. 448: The plaintiff was a
housemaid who was accused of being pregnant. Her mistress,
Mrs. B sent for a doctor to come and examine her. The doctor
asked her to undress. She protested and wept but undressed and
submitted to the examination. She was not pregnant but was
dismissed all the same. She later brought an action against Mr. &
Mrs. B and the doctor.
Cont.
At the trial, the judge withdrew from the jury the case against the
B’s and the jury found in favour of the doctor. This position was
affirmed on appeal. The court held that as long as her consent or
submission was not fraudulently obtained or obtained through fear
or violence it had not been vitiated.
It is respectfully submitted that due consideration was not given to
the impact of the employer-employee relationship on the maid’s
supposed consent.
Matters that vitiate consent
If the plaintiff is drunk or otherwise incapable of giving consent, he
cannot give consent.
Consent must relate to the act complained of see Beatty v
Illingworth (1898) 60 J.P. 740. The plaintiff was being operated on
for removal of a diseased ovary. She instructed the defendant
surgeon not to remove any of her ovaries if he found out that both
were diseased.
As she was gong under anaesthesia, the doctor replied that he
would not remove anything he can help. The surgeon removed
both ovaries and the plaintiff’s fiancée refused to marry her. The
jury found that the plaintiff had tacitly consented.
Previously in England, the court were more liberal with doctors to
enable them do what they consider best for their patients.
In St. George’s NHS Trust v S [1998] 3 ALL E.R.673, the court held
that it was an offense to operate upon a pregnant woman who
refused to have her baby through a caesarean section.
Also in Airedate NHS Trust v Bland, Lord Keith stated that
instructions that a person, brought to a hospital unconscious,
does not want a surgical operation would be effective unless it
was thought not to cover the particular situation or that, if
confronted with the reality of the situation, he or she would
change his or her mind.
3. Self-defense
A defendant succeeds under this defence if he can show
that he committed the trespass in order to:
(1) defend himself
(2) that in the circumstances it was reasonable for him to
do so; and
(3) that he used reasonable force
◦ Codd v Cabe – the court held that reasonable force was used
and as such there was no trespass
◦ Cockroft v Smith- the plaintiff sued for trespass for assault,
battery and mayhem. The defendant pleaded self-defense. In
this case, the plaintiff first tilted the form on which the
defendant sat and then pointed his finger towards the defendant
who bit it off.
◦ Holt C.J. held that a man must not in case of a small assault give
a violent or unreasonable return.
4.Defense of the person of another
Barfoot v Reynolds: it was an action of trespass, assault and
battery. Reynolds in his defense pleaded assault on his son, while
Westwood pleaded that he was a servant to Reynolds and that the
plaintiff having assaulted his master in his presence, he, in
defense of his master struck the plaintiff. The plea was held to be
wrong. The right way of pleading is that the plaintiff would have
beaten the master if the servant had not intervened.
This position was affirmed in Seaman v Cuppledick
5.Defense of one’s property
A person may use reasonable force to defend land or chattel in his
possession against any person threatening to commit or committing
trespass to the property.
However force is not justified if the threat is not imminent or has
passed. See Creswell v Sirl.
The onus of proof is on the defendant to justify the preventive
measures used.
6.Necessity
Necessity can be a justification for a trespass. In the Mouse’s
case, a casket was jettisoned off a barge in order to save it from
sinking. The action was justified on the grounds of necessity.
7. Abatement of nuisance
A trespass can be justified on the grounds that it was done to
bring an end to a nuisance. In Lemmon v Webb (1895) A.C. 1, it
was held that the owner of land is justified in cutting off
overhanging branches that have come onto his property even if
they have been overhanging for more than 20 years.
8.Discipline
Trespass might be justified on the grounds that it was meant to be
a form of discipline on the person complaining provided the force
used is reasonable.
In Ryan v Fildes & Or, the plaintiff, a school boy of 10 years was
boxed on the ears by his school mistress as a result of his
behaviour. The blow was found not to have been violent however,
the boy became deaf in one year as a result. It was held that
The blow was excessive and as a result damages would lie.
See the cases of Hook v Cunard and Lane v Holloway.