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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


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

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


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