LWZ116 Lecture Notes - Lecture 11: Rosehill Gardens Racecourse, Cox'S Criminal Cases, Chief Constable
Lecture 11
2017
DEFENCE TO TRESPASS
There are a number of defences to claims in trespass including:
a) Consent,
b) Self-defence,
c) Defence of a third person,
d) Defence of property, and
e) Legal Authority
To be a valid consent for the purposes of the defence, the following aspects must be present:
1. Voluntary: The consent must be voluntary, that is, not actuated by fraud or duress;
2. Capacity: The Plaintiff must have the legal capacity to give consent; and
3. Scope: The interference must be within the scope of the consent
Valid consent will prevent an action for trespass to land, goods, or person arising - Ames v Hanlon (1873) 4
AJR 90; McNamara v Duncan (1971) 26 ALR 584
A defendant relying on the defence of consent bears the onus of proving it - Department of Health v
Community Services v JWB (Marion’s case) (1992) 175 CLR 218
Consent must be Voluntary, The Plaintiff must have the capacity to give consent and the interference must
be within the scope of the consent.
Consent must be genuine – Hegarty v Shire (1878) 14 Cox CC 124; R v Papadimitropolous (1957) 98 CLR
249. Must not have been obtained by Fraud and deception - R v Williams [1923] 1 KB 340 or Duress -
Symes v Mahon [1922] SASR 447
The defence will only extend to the activities covered by the consent - Barker v R (1983) 153 CLR 338
‘…in sport where there is no malice, no anger and no mutual ill will, the combatants consent to take the
ordinary risks of the sport in which they are engaged.’ - Wright v McClean (1956) 7 DLR (2d) 253; Guimelli v
Johnston (1991) Aust Torts Reports 81-085
Without consent, medical interference will be battery - ‘At common law, therefore, every surgical
procedure is an assault unless it is authorised, justified or excused by law’ Department of Health v
Community Services v JWB (Marion’s case) (1992) 175 CLR 218; Schloendorf v Society of New York Hospital
(1914) 105 NE 92
In an Emergency, consent not necessary to provide treatment – Rogers v Whitaker (1992) 175 CLR 479
SELF DEFENCE – The onus is upon the plaintiff to establish that he was assaulted and sustained injury. Then
it is upon the defendant to establish the defences, firstly, that the assault was justified and, secondly, that
the assault even if justified was not made with any unreasonable force and on those issues the onus is on
the defence.’ Mann v Balaban [1970] SCR 74
The defendant must prove that:
1. The Occasion Warranted Defensive Action
1
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Document Summary
There are a number of defences to claims in trespass including: consent, self-defence, defence of a third person, defence of property, and, legal authority. Valid consent will prevent an action for trespass to land, goods, or person arising - ames v hanlon (1873) 4. Ajr 90; mcnamara v duncan (1971) 26 alr 584. A defendant relying on the defence of consent bears the onus of proving it - department of health v. Community services v jwb (marion"s case) (1992) 175 clr 218. Consent must be voluntary, the plaintiff must have the capacity to give consent and the interference must be within the scope of the consent. The defence will only extend to the activities covered by the consent - barker v r (1983) 153 clr 338. Without consent, medical interference will be battery - at common law, therefore, every surgical procedure is an assault unless it is authorised, justified or excused by law" department of health v.
