Date: Thu, 29 Nov 2007 19:16

From: Hector MacQueen

Subject: Third party duress and battery

There is a Scots case, of the Barclays Bank v O'Brien type on its facts, save that rather than undue influence the husband used duress against his wife to get her to sign the guarantee of his debts to the bank, the bank not knowing (if I remember aright) that this was the background; guarantee held void (Trustee Savings Bank v Balloch 1983 SLT 240). But we know nothing of battery in Scots law, so I am not sure how relevant this is to the inquiry.

Hector

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Hector L MacQueen
Professor of Private Law
Co-Director, AHRC Research Centre for Studies in Intellectual Property and Technology Law
University of Edinburgh
Old College
South Bridge
Edinburgh EH8 9YL
UK
Tel (UK)-(0)131-650-2060
Fax (UK)-(0)131-650-6317
Web: http://www.law.ed.ac.uk/
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Quoting Lewis KLAR:

Although the discussion in Scalera ([2000] 1 SCR 551) was in obiter, McLachlin J made it clear, in several parts of the judgment (e.g. see para. 24, or 29) that the "reasonable appearance of consent" is a defence in a sexual battery. Thus, in principle, if the defendant has no reason to know that the consent is forced, this should be a defence.

It might be of course to use other arguments to counter it. For example, in the commercial prostitution case, a power imbalance/exploitation scenario (as in Norberg v Wynrib), or a public policy argument. But this ignores the reality of actual consent and shifts the focus to a different level.

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