There are several common defences to the intentional torts of assault, battery and false imprisonment in Australia. Defendants may seek to rely on defences such as consent, self-defence and necessity to negate liability for tortious conduct.
Consent
As described in the Latin term ‘volenti non fit injuria’, a defendant seeking to rely on the defence of consent will argue that no wrong is done to an individual who consents. To be relied upon as a defence to an intentional tort, consent must have been freely given by a competent person and cannot be the result of fraud or duress. This means that consent must be provided by a person who is capable of consenting, and consideration will be given to the age and cognitive capacity of the person who is consenting. The success of the defence depends widely on the context and nature of the act which it relates to. In other words, consent must be to the specific act complained of.
There is considerable debate as to who is responsible for proving the absence of consent. The Court discussed the debate in White v Johnston [2015] NSWCA 18 and broadly concluded that the most practical position is that a plaintiff who sues in assault or battery in all cases bears the legal burden of establishing an absence of consent on his or her part.
Self- defence
Section 52 of the Civil Liability Act 2002 (NSW) states that a person does not incur civil liability arising from any conduct carried out in self-defence, but only if the conduct to which the person was responding was unlawful, or would have been unlawful had the person carrying out the conduct to which the person responds to did not have a mental health or cognitive impairment.
The Act stipulates that a person can only rely on self-defence in circumstances where the person believes the conduct is necessary to:
- defend himself or herself or another person, or
- prevent or terminate the unlawful deprivation of his or her liberty or the liberty or the liberty of another person, or
- protect property from unlawful taking, destruction, damage or interference, or
- prevent criminal trespass to any land or premises or to remove a person committing any such trespass.
In New South Wales v McMaster [2015] 91 NSWLR 666, the Court found that two criteria must be established to rely on self- defence:
- the person must subjectively believe their actions are necessary for self-defence; and
- that belief must be based on reasonable grounds.
It is the responsibility of the defendant to prove, on the balance of probabilities, that his or her response to the unlawful conduct was reasonable in the circumstances as perceived by them.
Necessity
The defence of necessity has been raised and successfully relied upon in a number of criminal trials. However, it is not as frequently relied upon as a defence to intentional torts due to the difficulty in making out the required elements. In New South Wales v McMaster [2015] NSWCA 228, the Court held that the defence of necessity required:
- a state of imminent peril, or the appearance of such, to a reasonable person; and
- the steps taken in response to that peril must be reasonably necessary in the circumstances.
In Clavel v Savage [2013] NSWSC 775, the Court held that necessity allows a person who is entitled to infringe the interests of others, taking action that infringes the interests of others for the purpose of preventing harm to the alleged victim, third parties, or the public peace, so long as the action taken is not disproportionate to the harm which is sought to be avoided.
The case provides the example of a police officer being authorised to engage in conduct that might otherwise be a breach of civil law for the purpose of fulfilling the functions of a police officer. Other circumstances in which the defence of necessity may be raised include in cases of medical emergency where there is an imminent threat to a patient’s life and it is not possible for the responding person to obtain consent.
If you or someone you know may have a claim arising from an unlawful arrest or imprisonment, it is important to seek legal advice at an early stage. To discuss your options, contact our team in Sydney (02 9696 1361) to arrange an appointment with one of our lawyers.
