DEFENCE: CONSENT Defendant must show that plaintiff consented to the physical contact ONUS OF PROOF: Non-Marine Underwriters (number of sexual batteries on 16 y/o girl from bus driver) PLAINTIFF MUST SHOW DIRECT APPLICATION OF (does not need to be harmful/offensive) High threshold must be more than reasonable in a busy world – THEN, PLAINTIFF MUST DEMONSTRATE CONSENT (reverse onus) OBJECTIVE TEST: O’Brien Woman travelling from Ireland to US on a boat is told she needs to be vaccinated against smallpox or else she will be quarantined Told doctor she already had vaccination; doctor did not believe her; she held arm up, doctor believed he had consent to vaccinate her; doctor vaccinated her Were there overt acts showing withholding of consent? What did the woman’s behavior indicate? What could the doctor observe in terms of manifestations of her feelings? RULING: A reasonable person would have taken her holding her arm out as consent to be vaccinated. Plaintiff consented. POWER IMBALANCE: Norberg v Wynrib Consent must be genuine Not obtained by force; threat of force; or under influence of drugs Consent can be vitiated by: Fraud or deceit as to the nature of the defendants conduct EX: withholding disclosure of HIV infection (R v Cuerrier) Withholding married status would not suffice Genuine consent may be lacking when: Proof of inequality between the parties Proof of exploitation of the inequality by the defendant THE YOUNG: M(M) v K(K) Consent not entertained when tort is sexual battery involving adolescents Matter of public policy SPORTING CONTEXT: Agar v Canning GENERAL RULE: in sporting context, you give implied consent Assuming the risk, knowing what your getting into, accepting the situation Different than waiving the claim (signaling you won’t sue) BUT: THERE IS A LINE Injuries inflicted in circumstances which show a definite resolve to cause serious injury to another Goes beyond the scope of even moves” such as penalties (Colby v Schmidt) “improper FIGHTING: Charland v Cloverdale Minor Baseball Association GENERAL RULE: If right consensual on both parts, parties cannot sure afterwards EXCEPTION: When the force deployed but one party is excessive or unnecessary BUT: If other party responds in kind, you are back in the realm of consent
DEFENCE: CONSENT Defendant must show that plaintiff consented to the physical contact ONUS OF PROOF: Non-Marine Underwriters (number of sexual batteries on 16 y/o girl from bus driver) PLAINTIFF MUST SHOW DIRECT APPLICATION OF (does not need to be harmful/offensive) High threshold – must be more than reasonable in a busy world THEN, PLAINTIFF MUST DEMONSTRATE CONSENT (reverse onus) OBJECTIVE TEST: O’Brien Woman travelling from Ireland to US on a boat is told she needs to be vaccinated against smallpox or else she will be quarantined Told doctor she already had vaccination; doctor did not believe her; she held arm up, doctor believed he had consent to vaccinate her; doctor vaccinated her Were there overt acts showing withholding of consent? What did the woman’s behavior indicate? What could the doctor observe in terms of manifestations of her feelings? RULING: A reasonable person would have taken her holding her arm out as consent to be vaccinated. Plaintiff consented. POWER IMBALANCE: Norberg v Wynrib Consent must be genuine Not obtained by force; threat of force; or under influence of drugs Consent can be vitiated by: Fraud or deceit as to the nature of the defendants conduct EX: withholding disclosure of HIV infection (R v Cuerrier) Withholding married status would not suffice Genuine consent may be lacking when: Proof of inequality between the parties Proof of exploitation of the inequality by the defendant THE YOUNG: M(M) v K(K) Consent not entertained when tort is sexual battery involving adolescents Matter of public policy SPORTING CONTEXT: Agar v Canning GENERAL RULE: in sporting context, you give implied consent Assuming the risk, knowing what your getting into, accepting the situation Different than waiving the claim (signaling you won’t sue) BUT: THERE IS A LINE Injuries inflicted in circumstances which show a definite resolve to cause serious injury to another Goes beyond the scope of even “improper moves” such as penalties (Colby v Schmidt) FIGHTING: Charland v Cloverdale Minor Baseball Association GENERAL RULE: If right consensual on both parts, parties cannot sure afterwards EXCEPTION: When the force deployed but one party is excessive or unnecessary BUT: If other party responds in kind, you are back in the realm of consent
Christie_61_Fall_2014_Leah_Whitworth.docx