Date: Fri, 30 Nov 2007 00:24

From: Neil Foster

Subject: Third party duress and battery

Dear Tsachi, Hector et al

Hector, how nice to live in a society with no need for the tort of battery! I feel like hopping on a plane to Edinburgh right away!

Tsachi, while it is not right on point, coincidentally a judge in the NSW Supreme Court handed down an award of damages yesterday to a woman who claimed she had been hypnotised by a counsellor when engaging in a course of sexual relations. The damages were actually awarded in negligence, not battery, and were based on breach of a duty of care to a client owed by the counsellor. But I guess it comes a bit close to a situation where someone may engage in sex suspecting (if not actually knowing) that the consent given is not full and free consent. See EA v PD (Non-publication order) [2007] NSWSC 1387.

Regards
Neil F

Neil Foster
Newcastle Law School
Faculty of Business & Law
MC159c, McMullin Building
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
ph 02 4921 7430
fax 02 4921 6931

>>> Hector MacQueen 30/11/07 6:16 >>>

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.

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