ArtsAutosBooksBusinessEducationEntertainmentFamilyFashionFoodGamesGenderHealthHolidaysHomeHubPagesPersonal FinancePetsPoliticsReligionSportsTechnologyTravel

Consent is a defence in the Law of Torts

Updated on February 15, 2018

Whether consent given by parties in body contact games

We can define consent as willingness or voluntarily agree to a given situation. In a body contact sport or game, the players themselves because of implied consent to ordinary conduct that game or sport under the rules and regulations that governs that particular game or sport. A sports participant does not consent to force which could not reasonably be expected to happen in the course of the game¹.

However, if any event that may eventuate beyond the guiding rules and regulations of the particular game or sport, then the offence may be liable in respect of the laws within that jurisdiction. We can confirm and have clear view that consent is a defence in tort as presented above, by the following case laws and commentaries.

In the case of R v Billinghurst², there was game of rugby and in the course of playing the plaintiff, who did not have the ball at the time, was deliberately punched in the face by an opponent.

The court held that there was battery. Even though players are deemed to consent to force “of a kind which could reasonably expected to happen during a game” this does not include foul play that goes beyond what a reasonable participant would expect. Similarly, in the case of Condon v Basi*, the plaintiff suffered a broken leg as the result of foul tackle in the course of a game of football.

It was held that consent to reasonable contact is consented only to non-negligence behaviour and the defendant was found liable in negligence in line with above two case laws, here another case of Watson v British boxing Board of control, it was held that although, a boxer consented to injury caused by his opponent in the boxing ring, he does not consent to injury resulting from inadequate safety arrangements by the sport’s governing body after being hit.

In a fight, the participants who voluntarily involved themselves are taken to have consented to the trespass of battery but in other case where an unreasonable force is applied on unfair grounds like in the case of Hane v Hollowayͯ ,the plaintiff, a tired gardener aged 64, came back from the pub one night and provoked an argument by calling the defendant’s wife “a monkey in tart”. The 23 year-old defendant struck the plaintiff a violent blow in the eye and inflicted a wound that needed 19 stiches.

The court held that there is no action as battery available to those who take part in fights especially “an ordinary fight with fists” because they would be taken to have consented to the battery. However, consent did not apply in this case because the plaintiff’s conduct was trivial and the defendant gave a ‘savage blow out of all proportion to the occasion.

Another area of consent is defence is in medical treatments given by the medical officers; there medical treatment involving the direct application of force administered without the patient’s consent, or giving treatment different from that, for which consent has given, constitutes a battery.

We can see from the case of Chatterton v Gersonº, where the plaintiff was suffering from severe pain caused by a trapped nerve from which the defendant, a specialist in the treatment of chronic intractable pain, gave her spinal injections. This helped the pain for a while but it rendered her right leg numb. She claimed trespass on the grounds that her consent to the injection was invalid as she had not been warned of the risk or informed of the potential consequences. It was held that the defendant was not liable in trespass .where patient is informed in broad terms of the nature of the procedure and consent is obtained failure to disclose the associated risks does not invalidate the consent.

In contact sport if and only when an act done beyond the governing rules and regulations of the particular game or sport .Though the consent is implied given in a game or sport by the participant to a limited extend of the rules and regulations that governs that particular game or sport. Subsequently, if any event outside these set rules and regulations would lead to trespass against person, as we can see from the above authorities mentioned above.

As for participants who physical fight are who voluntarily involved themselves are taken to have consented to the trespass of battery but in other case where an unreasonable force is applied on unfair grounds. As in the case of Hane v Holloway, it was an unfair blow from the defendant so the defendant was liable for battery.

On the medical treatments, if any mistreatment or any act of trespass can only be on negligence of the medical officer rather than trespass patient since the patient is informed in broad terms of the nature of the procedure and consent is obtained failure to disclose the associated risks does invalidate the consent as held the case of Chatterton v Gerson.

Therefore, though generally, in a contact sports consent is implied to but a defence is available if there an act is outside the rules and regulations that governs that particular game or sport that amount to battery so we can state the consent is a defence in contact sports in exceptional case like the ones we have discussed in this assignment. Secondly, persons who participate in a confronting fight voluntarily implied consented to but exceptional case like that of Hane v Halloway, consent is also a defence to trespass to person.

As on the grounds of consent as a defence in medical treatment, the patient has voluntarily implied to consent but defence can be obtained if consequences as a result of the negligence of the particular medical officer or any person or authority that are involve in that particular event.

¹Richard Owen (2000), ‘Essential Tort Law’ (third ed) pp 91-92.

²[1978] Crim.LR 553

*(1985) 2 All ER 453ͯ

ͯ [1968] 1 QB 379,

º[1981QB 432

References.


*Vora Birmingham (2002),’Nutcases Tort”, pp 13-15.

*Lecture Notes on Tort Law, School of Law, University of Papua New Guinea

Comments

    0 of 8192 characters used
    Post Comment

    No comments yet.

    working

    This website uses cookies

    As a user in the EEA, your approval is needed on a few things. To provide a better website experience, hubpages.com uses cookies (and other similar technologies) and may collect, process, and share personal data. Please choose which areas of our service you consent to our doing so.

    For more information on managing or withdrawing consents and how we handle data, visit our Privacy Policy at: https://hubpages.com/privacy-policy#gdpr

    Show Details
    Necessary
    HubPages Device IDThis is used to identify particular browsers or devices when the access the service, and is used for security reasons.
    LoginThis is necessary to sign in to the HubPages Service.
    Google RecaptchaThis is used to prevent bots and spam. (Privacy Policy)
    AkismetThis is used to detect comment spam. (Privacy Policy)
    HubPages Google AnalyticsThis is used to provide data on traffic to our website, all personally identifyable data is anonymized. (Privacy Policy)
    HubPages Traffic PixelThis is used to collect data on traffic to articles and other pages on our site. Unless you are signed in to a HubPages account, all personally identifiable information is anonymized.
    Amazon Web ServicesThis is a cloud services platform that we used to host our service. (Privacy Policy)
    CloudflareThis is a cloud CDN service that we use to efficiently deliver files required for our service to operate such as javascript, cascading style sheets, images, and videos. (Privacy Policy)
    Google Hosted LibrariesJavascript software libraries such as jQuery are loaded at endpoints on the googleapis.com or gstatic.com domains, for performance and efficiency reasons. (Privacy Policy)
    Features
    Google Custom SearchThis is feature allows you to search the site. (Privacy Policy)
    Google MapsSome articles have Google Maps embedded in them. (Privacy Policy)
    Google ChartsThis is used to display charts and graphs on articles and the author center. (Privacy Policy)
    Google AdSense Host APIThis service allows you to sign up for or associate a Google AdSense account with HubPages, so that you can earn money from ads on your articles. No data is shared unless you engage with this feature. (Privacy Policy)
    Google YouTubeSome articles have YouTube videos embedded in them. (Privacy Policy)
    VimeoSome articles have Vimeo videos embedded in them. (Privacy Policy)
    PaypalThis is used for a registered author who enrolls in the HubPages Earnings program and requests to be paid via PayPal. No data is shared with Paypal unless you engage with this feature. (Privacy Policy)
    Facebook LoginYou can use this to streamline signing up for, or signing in to your Hubpages account. No data is shared with Facebook unless you engage with this feature. (Privacy Policy)
    MavenThis supports the Maven widget and search functionality. (Privacy Policy)
    Marketing
    Google AdSenseThis is an ad network. (Privacy Policy)
    Google DoubleClickGoogle provides ad serving technology and runs an ad network. (Privacy Policy)
    Index ExchangeThis is an ad network. (Privacy Policy)
    SovrnThis is an ad network. (Privacy Policy)
    Facebook AdsThis is an ad network. (Privacy Policy)
    Amazon Unified Ad MarketplaceThis is an ad network. (Privacy Policy)
    AppNexusThis is an ad network. (Privacy Policy)
    OpenxThis is an ad network. (Privacy Policy)
    Rubicon ProjectThis is an ad network. (Privacy Policy)
    TripleLiftThis is an ad network. (Privacy Policy)
    Say MediaWe partner with Say Media to deliver ad campaigns on our sites. (Privacy Policy)
    Remarketing PixelsWe may use remarketing pixels from advertising networks such as Google AdWords, Bing Ads, and Facebook in order to advertise the HubPages Service to people that have visited our sites.
    Conversion Tracking PixelsWe may use conversion tracking pixels from advertising networks such as Google AdWords, Bing Ads, and Facebook in order to identify when an advertisement has successfully resulted in the desired action, such as signing up for the HubPages Service or publishing an article on the HubPages Service.
    Statistics
    Author Google AnalyticsThis is used to provide traffic data and reports to the authors of articles on the HubPages Service. (Privacy Policy)
    ComscoreComScore is a media measurement and analytics company providing marketing data and analytics to enterprises, media and advertising agencies, and publishers. Non-consent will result in ComScore only processing obfuscated personal data. (Privacy Policy)
    Amazon Tracking PixelSome articles display amazon products as part of the Amazon Affiliate program, this pixel provides traffic statistics for those products (Privacy Policy)