Trespass: Difference between revisions

[[File:FitzsimmonsDempseyNOLAJan1891FB1.JPG|thumbnail|200px|left|[[Alfred Denning, Baron Denning|Denning, LJ]]: "[I]n an ordinary fight with fists there is no cause of action to either of [the combatants] for any injury suffered."]]

Perhaps the most common defense for the torts of trespass to the person is that of ''{{lang|la|[[volenti non fit injuria]]''}}, literally, "to a willing person, no injury is done", but shortened to "consensual privilege" or "consent". If a plaintiff participates in a sporting activity in which physical contact is ordinary conduct, such as rugby, they are considered to have consented. This is not the case if the physical contact went beyond what could be expected, such as the use of hand gun during a fistfight, as in ''Andrepont v. Naquin'',<ref>''Andrepont v Naquin'' {{West|S|345|2|1216|La.App.|1977|1219–20}}</ref> or where the injuries were suffered not from the plaintiff's participation in the sport but inadequate safety measures taken, as in ''Watson v British Boxing Board of Control Ltd''.<ref>''Watson v British Boxing Board of Control Ltd'' {{Oscola|NEUT|2000|ew|Civ|2116|EWCA|}}</ref> Where the plaintiff and defendant voluntarily agree to participate in a fight, some jurisdictions will deny relief in civil action, so long as the injuries caused are proportionate: "in an ordinary fight with fists there is no cause of action to either of [the combatants] for any injury suffered".<ref>''Lane v Holloway'' {{Oscola|NEUT|1967|ew|Civ|1|EWCA|[3]}}</ref> Other jurisdictions refuse to recognize consent as a defense to [[mutual combat]] and instead provide relief under the doctrine of comparative negligence.<ref>''Reinertsen v. Rygg'', No. 55831-1-I</ref><ref>''Hudson v. Craft'', 33 Cal.2d 654, 656</ref><ref>''State v. Mackrill'', {{West|P|191|3|451|Mont.|2008|457}}</ref>

Medical care gives rise to many claims of trespass to the person. A physician, "treating a mentally competent adult under non-emergency circumstances, cannot properly undertake to perform surgery or administer other therapy without the prior consent of his patient".<ref>''Sard v. Hardy'', 281 Md. 432, 439</ref> Should he do so, he commits a trespass to the person and is liable tofor damages. However, if the plaintiff is informed by a doctor of the broad risks of a medical procedure, there will be no claim under trespass against the person for resulting harm caused; the plaintiff's agreement constitutes "[[informed consent"]].<ref>''Chatterton v. Gerson'' {{Oscola|PROP|1981|1|All ER|257|QB|}}</ref> In those cases where the patient does not possess sufficient mental capacity to consent, doctors must exercise extreme caution. In ''F v West Berkshire Health Authority'',<ref>''F v West Berkshire Health Authority'' {{Oscola|PROP|1989|2|All ER|545,||565–66}}</ref> the House of Lords instructed British physicians that, to justify operating upon such an individual, there "(1) must …&nbsp;... be a necessity to act when it is not practicable to communicate with the assisted person &nbsp;... [and] (2) the action taken must be such as a reasonable person would in all the circumstances take, acting in the best interests of the assisted person".