13) Defences to the Intentional Interference with the Person

There are a number of defences to the torts of intentional interference with the person. Most of the defences (consent, self-defence, defence of a third person, defence of property, discipline, legal authority, and illegality) are complete defences, but provocation and contributory negligence are partial defences that dictate a reduction in damages. There are also two concepts, mistake and duress, which traditionally have not been treated as either a complete or a partial defence. The burden of proof to establish complete and partial defences is on the defendant.

a)		Complete Defences
i)		Consent

There are occasions where it is in the interests of an individual to agree to an intentional interference with her person. It may secure some desirable personal, material, emotional, or economic benefit. Consequently, the law recognizes the right of an individual to exercise her autonomy and consent to the intentional interference with her person. People commonly consent to a variety of batteries, including medical care, haircutting, body piercing, tattooing, and sexual contact. Travelling in an elevator or an aircraft necessitates consenting to an imprisonment, and elite athletes who agree to random drug testing consent to an invasion of their privacy.

Consent may be express, or it may be implied from the conduct of the plaintiff. Consent to a routine dental examination may, for example, be implied from sitting in a dental chair and opening one's mouth. The conduct must be such that a reasonable person would be led to believe that the plaintiff was consenting to the interference. Consent must be freely and voluntarily given. A consent given under the influence of drugs or given as a consequence of violence or a threat of violence is invalid. Other serious forms of duress may also invalidate consent.

In most situations, a consent may be revoked. A consent given to a dentist to extract a tooth does not prevent a patient from changing her mind. The revocation may be a breach of a contract for dental services for which the dentist may have a remedy but the legal power of the patient to revoke her consent is unfettered. There are, however, some situations where public convenience, safety, and expense temporarily negate the power to revoke a consent freely given. For example, the consent to be imprisoned for the duration of a non-stop commercial flight, an ocean cruise, or a frightening carnival ride is, in the absence of special circumstances such as serious illness, irrevocable.

Issues of consent arise most often in cases of battery. There are four situations where it arises with particular frequency: interpersonal violence, contact sports, medical treatment, and sexual relationships.

aa) Interpersonal Violence

Not all interpersonal disputes are settled with reason and civility. Occasionally, differences are settled by violence. Where the parties have consented to fight, the loser will not be able to sue in battery for the injuries suffered. Each person has consented to the batteries inflicted by the other. Consequently, when hockey players mutually drop their gloves or bar patrons accept invitations "to step outside" to settle differences or gangs agree to fight each other, they all waive their right to bodily security. The courts will, however, carefully assess the scope of the mutual consent of the parties and where it is exceeded, by the use of a weapon or by the administration of a beating to a defeated foe, liability will be imposed.

bb) Contact Sports

Contact sport involves the intentional interference with the person of another which, outside the sporting arena, would result in liability for battery. Players are protected from liability by the implied consent of all the participants to physical interference that is an integral part of the sport. There are, of course, limits to the immunity of players from civil liability. The privilege to play a contact sport is not a licence to inflict serious harm on an opponent. A line must be drawn between bodily contact that is an expected part of the game and that which is not.

In Canada, there is a difference in judicial opinion on the appropriate legal analysis to achieve a fair compromise between the nature of the game and the safety of the players. One approach, based on the tort of battery, has been championed by the Manitoba Court of Appeal. Its approach is to classify all bodily contact in sport as prima facie a battery. The burden of proof is then on the defendant to establish that the plaintiff impliedly consented to that battery. As a general rule, it has been held that an implied consent extends to all batteries other than those where the defendant intends to cause injury in contravention of the rules of the sport. Both a breach of the rules and an intention to injure are required to exceed the implied consent. [Note 71: Courts that have adopted the battery/ implied consent approach may describe the nature of conduct to which the player has not consented in somewhat different terms (e.g., intent to cause serious injury in breach of the rules, reckless disregard for safety in breach of the rules, intent to injure, and so on).] Agar v. Canning [Note 72: (1965), 54 W.W.R. (N.S.) 302 (Man. Q.B.), aff'd (1966), 55 W.W.R. (N.S.) 384 (Man. C.A.).] and Temple v. Hallem, [Note 73: (1989), 58 D.L.R. (4th) 541 (Man. C.A.).] both of which are decisions of the Manitoba Court of Appeal, are illustrative. In Agar, a hockey player was held liable for a vicious slash across the plaintiff's face which indicated an intent to cause serious injury in violation of the rules of the game. In Temple, the plaintiff was injured when the defendant, who was trying to score a run in a mixed-league recreational softball game, slid into her as she guarded home plate. The Court held that the defendant was not liable because he did not intend to injure her and sliding, even in a professional way, was not prohibited by the league rules.

The other approach has been used by the British Columbia Court of Appeal. It is based, not on a battery analysis, but on basic negligence principles. It incorporates the issue of acceptable and agreed risk into the application of the standard of care that players in the particular sport owe to one another. An illustrative case is Zapf v. Muckalt. [Note 74: (1996), 142 D.L.R. (4th) 438 (B.C.C.A.). ] In that case, the defendant checked the plaintiff into the boards from behind in the course of a Junior A hockey game. The plaintiff was rendered a quadriplegic. The Court formulated the defendant's obligation in negligence terminology:

What would a reasonable competitor, in his place, do or not do? The words "in his place" imply the need to consider the speed, the amount of body contact and the stresses in the sport, as well as the risks the players might reasonably be expected to take during the game, acting within the spirit of the game and according to the standards of fair play. A breach of the rules may be one element in that issue but not necessarily definitive of the issue. [Note 75: Ibid. at 446, citing Unruh v. Webber (1994), 112 D.L.R. (4th) 83 at 96 (B.C.C.A.).]

Since the defendant's conduct was at worst reckless and at best careless, liability was imposed.

The use of negligence principles, rather than battery, to draw the line between acceptable and unacceptable conduct on the sporting fields and arenas of Canada is probably more pro-plaintiff in sentiment and may be more in tune with the growing public concern about safety in sports, which is evidenced by rule changes providing better protection for players and by the mandating of protective equipment in organized sport at all levels. Liability in negligence not only makes a more significant contribution to accident prevention in sport but also facilitates needed compensation to the victims of sporting accidents. The more pro-defendant stance of the Manitoba Court of Appeal may reflect greater judicial concern for the chilling effect that a more extensive liability may have on amateur sport and a reluctance to expose young uninsured people [Note 76: It should not be overlooked that some young people may have liability insurance under their own homeowners' or tenants' policies or those of their parents.] to large damage awards.

It is convenient to note here that negligence principles are generally applicable to a variety of other claims that may arise from sporting endeavours, including the liability of coaches, umpires, and organizers to players, and the liability of players and owners of facilities to spectators.

cc) Medical Treatment

Medical treatment is an actionable battery unless the attending health care professional has secured the patient's consent. [Note 77: Some provinces have legislation relating to consent to medical treatment: see, for example, Ontario Health Care Consent Act, S.O. 1996, c. 2, sch. A, s. 10.] Every competent adult patient controls her health care by exercising an unfettered power to consent to treatment, to refuse treatment, to give a conditional consent to treatment, or to revoke a consent previously given. An excellent example of the power of battery law to protect a patient's right to make autonomous decisions in her own interests is found in the trial judgment in Allan v. New Mount Sinai Hospital. [Note 78: (1980), 28 O.R. (2d) 356 (H.C.J.), rev'd on another point (1981), 33 O.R. (2d) 603 (C.A.).] A surgical patient warned the attending anaesthetist not to insert a needle in her left arm because "he would have nothing but trouble there." The defendant anaesthetist ignored her request and inserted an intravenous needle into her left arm. In the course of the surgery, the needle slipped out of the vein and she suffered a severe allergic reaction when anaesthetic was released into the surrounding tissue. The defendant was found liable in battery for ignoring the patient's specific prohibition against use of her left arm and neither his competence nor his good faith provided any excuse. The trial judge spoke of the importance of consent.

Without a consent, either written or oral, no surgery may be performed. This is not a mere formality; it is an important individual right to have control over one's own body. . . . It is the patient, not the doctor, who decides whether surgery will be performed, where it will be done, when it will be done and by whom it will be done. [Note 79: Ibid. at 364 (Ont. H.C.J.).]

Hospital administrators are particularly sensitive to the need to prove the patient's consent to treatment and it is common practice to use a variety of written consent forms. These forms provide useful evidence of consent but they are not conclusive of the issue. The court must be convinced of the reality of consent, and consideration will be given to the mental capacity of the patient, the language of the form, the explanations given to the patient, and the circumstances surrounding the signing of the form to determine if the consent is genuine. Sometimes careful consideration must be given to the wording of these forms to determine if collateral or extended procedures in the course of surgery are within the scope of the patient's written consent. General words permitting a surgeon to do anything that is advisable or in the patient's best interests are probably not, in themselves, effective other than in situations of unforeseen complications closely associated with the planned procedures.

A patient retains the right to revoke his consent at any time before or during a medical procedure. Requests to stop a procedure must not be brushed aside as expressions of pain or anxiety. The physician must comply with the revocation of consent immediately unless to do so would threaten the life of the patient or pose immediate and serious problems to the patient's health. [Note 80: See Ciarlariello v. Schacter, [1993] 2 S.C.R. 119.]

The failure to provide information about the risks and benefits of surgery or other invasive procedures does not invalidate the patient's consent so as to permit an action in battery. It was settled in Reibl v. Hughes [Note 81: [1980] 2 S.C.R. 880.] that, in those situations, negligence is the appropriate cause of action. Battery applies only where there is no consent to the surgery at all, where the terms of the consent have been clearly exceeded, or where the nature and character of the surgery have been misrepresented.

Some persons may not have the capacity to consent. The issue arises, most often, in respect of persons under the age of majority and those who suffer from a mental illness.

There is no set age at which a young person has the capacity to consent to medical treatment. The common law rule is that a mature minor has the power to consent to or refuse medical treatment. Maturity, in this context, means that the minor has the capacity and intelligence to understand the nature of the proposed medical treatment, the risks and potential benefits of it, and the risks of refusing it. A good illustration of the application of the mature minor rule is found in the Alberta Court of Appeal decision in C. (J.S.) v. Wren. [Note 82: (1986), 76 A.R. 115 (C.A.). See also Van Mol (Guardian ad litem of) v. Ashmore (1999), 168 D.L.R. (4th) 637 (B.C.C.A.).] In that case, the parents of a sixteen-year-old sought an injunction to prevent her from terminating her pregnancy. The Court concluded that she was a normal, intelligent sixteen-year-old who had sufficient understanding to make up her own mind free of parental restraint. [Note 83: Some provinces have legislation that relates to the power of minors to consent to medical treatment: see, for example, New Brunswick Medical Consent of Minors Act, S.N.B. 1976, M-6.1; and British Columbia Infants Act, R.S.B.C. 1996, c. 223, s. 17.]

Mental illness may also impair the capacity of a patient to understand the nature of the proposed medical intervention and its risks and benefits. If the patient does not have the capacity to consent, a substitute decision maker may act. At common law, a close family member probably has the power to make medical decisions that are either consistent with the patient's past wishes or are good-faith determinations of the patient's best interests. In some provinces, legislation resolves any doubt by detailing the selection of substitute decision makers and the principles on which they must act. [Note 84: See, for example, Health Care Consent Act, above note 77.]

A person may wish to control the course of his health care when he is no longer able to communicate his wishes because of future mental or physical incapacity. The incapacity may arise gradually in the course of a debilitating illness or suddenly from a stroke or an unanticipated accident that leaves the victim unconscious. A person may, for example, seek to prohibit the use of blood products, to prevent the use of heroic resuscitation and life-prolonging measures, or, in some other way, to dictate the course of future treatment. In some provinces, this process is now regulated by legislation that recognizes and formalizes written advance directives either in the form of an instructional directive declaring the patient's treatment preferences or in the form of a proxy directive that appoints a substitute decision maker to make treatment decisions on the patient's behalf. [Note 85: See, for example, Nova Scotia Medical Consent Act, R.S.N.S. 1989, c. 279. See also B. Sneiderman, J.C. Irvine, & P.H. Osborne, Canadian Medical Law: An Introduction for Physicians, Nurses and Other Health Care Professionals, 2d ed. (Toronto: Carswell, 1995) at 503-46.]

There are still some circumstances, however, where common law principles apply. Not all provinces have advance directive legislation and, even in those provinces that do, a patient may carry informal instructions that do not comply with the statutory formalities. In those circumstances, reference must be made to Malette v. Shulman, [Note 86: (1990), 72 O.R. (2d) 417 (C.A.).] which was decided by the Ontario Court of Appeal prior to that province's advance directive legislation. In that case, the plaintiff was involved in a car accident. She was not conscious when she was admitted to hospital but she did have an undated signed card indicating that she was a member of the Jehovah's Witness faith who did not want any blood administered to her under any circumstances. The defendant physician ignored the directive and administered blood in the reasonable belief that it was necessary to preserve her health and possibly to save her life. The Court held that the written card was clear, limited in scope, and unequivocal. The tenets of her faith were well known in the community, the authenticity of the card had not been challenged, and her calculated decision to reject the use of blood in her medical treatment ought to have been honoured. The defendant was held liable in battery even though he had acted in good faith and the treatment may, indeed, have saved her life.

The Court also noted that a physician who follows the directions contained in a card cannot be found liable if the card no longer reflects the true wishes of the plaintiff. Physicians must, however, be alert to any evidence that the card is not a reliable reflection of the patient's wishes. The card may be old, it may contain unclear or extravagant instructions, or it may claim membership in unknown sects or cults. When a physician has reasonable grounds to believe the card to be invalid, she may provide treatment to preserve the life or health of the patient.

dd) Sexual Relationships

Any sexual or intimate physical contact is a battery unless there is a free and voluntary consent to it. Consent secured by force or threats of force is invalid. Consent is also invalid where there is a gross inequality of power between the two people and the stronger person has exploited the vulnerability of the weaker person to secure a consent to intimate acts. In Norberg v. Wynrib, [Note 87: [1992] 2 S.C.R. 226.] for example, a physician took advantage of a young woman patient who was addicted to painkillers. Rather than treat her addiction, he initiated an arrangement where he provided painkillers in exchange for sexual favours. A majority of the Supreme Court held that there was a power-dependency relationship between the defendant and the plaintiff and that the defendant had exploited the plaintiff's vulnerability. Her consent to the sexual contact was invalid. This principle is equally applicable in cases of incest and the sexual abuse of young persons by teachers, coaches, or religious leaders where the defence of consent may be raised.

A consent may also be vitiated by fraud. The courts have traditionally drawn a distinction between fraud as to the nature and character of the bodily interference, which does negate the plaintiff's consent, and fraud as to collateral matters, which does not negate the consent. Consequently, it was held that the consent of a naive young woman, who was tricked by a choir master into believing that the act of sexual intercourse was a form of voice training, was inoperative. [Note 88: R. v. Williams, [1923] 1 K.B. 340 (C.C.A.). ] She did not understand the nature of the act. On the other hand, a consent to sexual intimacy is valid even though it may have been secured by fraudulent misrepresentations of the defendant's marital status, wealth, or degree of affection for his partner. These are collateral matters and any remedy must be sought in fraud or negligence.

It is not yet clear how the courts will approach the issue of fraudulent representations of freedom of sexually transmitted diseases and fraudulent concealment of sexually transmitted diseases. In these situations, there is not normally any mistake about the nature and character of the act of intimacy but there is a lack of understanding of the grave risk arising from the contact. One way of dealing with this is to hold that the ignorance of the danger is sufficient to vitiate the consent and warrant the imposition of liability in battery for all of its consequences. This approach was taken recently by the Supreme Court in the context of the criminal law. The accused in R. v. Cuerrier [Note 89: [1998] 2 S.C.R. 371. ] was charged with two counts of aggravated assault. He was alleged to have engaged in unprotected sexual intercourse with the complainants without disclosing that he was HIV positive. The complainants, who had not tested HIV positive, claimed that they would not have consented to sexual intercourse if they had known of the health status of the accused. The Court held that fraud vitiates the consent it secures when there is concealment of a "significant risk of serious bodily injury" to the consenting person. This principle is readily transferable to tort law and is applicable where the defendant fraudulently conceals that he is HIV positive or suffers from a venereal disease. Resort may also be had to the tort of negligence. There is clear liability for negligent misrepresentations that cause foreseeable physical injury or illness. The concealment of a sexually transmitted disease may also be actionable in negligence on the basis that there is a special relationship between sexual partners which imposes a duty of affirmative action to take reasonable steps to protect each other from disease. This idea of informed consent to sexual relationships is broadly analogous to the doctrine of informed consent to medical treatment. [Note 90: Fraudulent statements relating to the absence of sexually transmitted diseases may also be actionable in the tort of deceit.]

ii) Self-Defence

A person is permitted to use reasonable force to repel actual violence (a battery) or a threat of immediate violence (an assault). [Note 91: See, for example, Wackett v. Calder (1965), 51 D.L.R. (2d) 598 (B.C.C.A.).] The reasonableness of the force is determined by a consideration of all the surrounding circumstances, including the nature of the attack, the size and strength of the opponent, the force needed to repel the attack, the use of weapons, and the availability of non-violent means of defence. The privilege is entirely defensive in nature. It does not permit unnecessary violence, it does not permit punishment of the attacker, and it does not sanction disproportionate violence. Nevertheless, a deadly attack may be met with deadly force.

The defendant is not required to measure the force with nicety. A delicate calibration of the precise force needed for one's defence is not expected in the face of violence or the threat of immediate violence, and the defendant does not lose the protection of the defence merely because more serious injuries were caused than, in retrospect, were technically necessary to repel the attack.