Trespass to the Person

Trespass to the Person Consent: D to prove, may be given implicitly or explicitly, chooses to engage in the activity, fact-specific! VITIATED BY: Fraud, Mistake, Duress, Public Policy (see next page) Implied consent: assumes rick inherent in the act *Wright v McLean (1956): “combatants consent to take the ordinary risks of the sport in which they engage… if tacit conditions of fair play and good temper are not kept, the consent is at an end” = kids throwing mud and one gets hit with rock; no ill will = no liability; à “Harm suffered by consent is, within limits to be mentioned, not a cause of civil action” Elliot and Elliot v Amphitheatre Ltd. [1934]: spectators implicitly consent to injuries incidental to attendance at sporting events. P was an amateur hockey player, knew it was possible **foreseeability is vital** Exceeding Consent: **Agar v Canning (1965): D struck P in face with hockey stick during game, in retaliation for another blow // limits must be placed on a player’s immunity from liability; in circumstances that show a definitive resolve to cause serious injury to another, consent is not implied // à excessive harm can exceed assumed consent R v McSorley (2000): hockey players consent to permitted physical contact, and a little more, but some forms are “too dangerous” to consent to à cannot consent to serious bodily harm Teolis v Moscatelli (1923): bringing a knife to a consensual fistfight exceeds consent Competency to Consent: (also under Medical Settings) o person giving consent needs to be capable of appreciating nature and consequences of act o cannot be mentally or physically ill, intoxicated, too young or senile Factors that Vitiate Consent Fraud 1. D is responsible of the plaintiff’s misapprehension 2. The fraud relates to the nature and quality of the act Traditionally, fraud causing harm to a person didn't negate consent (changed in Mabior) **R. v. Mabior, 2012 SCC 47 ***KEY*** D charged with 9 counts of aggravated SA bc failed to disclose HIV+ status to 9 women before having sex with them; convicted on 6 because wore a condom with 3 à fraud negates consent if fraud physically harmed the complainant or exposed him/her to a significant risk of serious bodily harm (low transmission and condom) R. v. Ssenyonga (1992): D had unprotected consensual sexual intercourse with 3 women, when he know that he was infected with HIV, judges decided he could not be charged R v Cuerrier [1998] rejected the above principle à knowingly exposing a sexual partner to HIV constitutes a prosecutable crime under Canadian law R v Hutchinson: Consented to intercourse, D poked holes in condom, P became pregnant à No consent bc deception/deprivation of women’s choice ot be pregnant; significant risk of harm by being with child Mistake 3. D is aware of the plaintiff’s misapprehension 4. The mistake relates to the nature, and potentially extent of the act. àD’s mistaken belief regarding consent of P does NOT constitute a defense; mitigating factor in damages ONLY. See: *Guimond v Laberge plaintiffs teeth all removed when it was not neccssary, based on the reckless interpretation of consent given by the plaintiff -> in modern context, we characterize consent only to the teeth that were diseased and not others. Turner v. Thorne (1959) delivery dropped off boxes in garage when P wasn't home, P tripped and was hurt Schweizer v. Central Hospital (1974) patient consented to toe fusion surgery and had a spinal fusion instead Duress (Not fully set out) àIf someone is pressured into consenting what would otherwise be a prima facie tort, this consent is vitiated. See: R v Z à in urgent situations of clear and imminent peril where compliance with the law would be demonstrably impossible **Latter v Braddell (1880) P was housemaid for D, P employers who hired Dr. to see if P was “in the family way” Public Policy Lane v Holloway [1968] – P was too old to be a match for young D in a fight R v Paice – no consent if serious physical harm was intended and caused M(M) v K(K) (1989) –father has sex with 15yo foster daughter // no consent if D exploited a position of trust **Norberg v Wynrib [1992] – doctor offers to supply addicted patient with prescription narcotics if she submitted to sexual advances // See sexual battery section above for vitiation test