Bruce, you are right of course that mistake is typically not a valid defence to an intentional tort. The tendency to treat sexual battery as an exceptional case illustrates a general tendency in cases involving sexual impropriety to pull tort law in the direction of criminal law standards. You might be interested in my analysis of the insurance law aspect of Scalera, which makes this case, in 'Insurance and Intentional Torts: The Case of 'Sexual Battery' (2004) 12 Torts Law Journal 76. The argument is transposable to the tort context.

Denise

On 10/14/2010 10:04 AM, Andrew Tettenborn wrote:

On 14/10/2010 14:20, Bruce Pardy wrote:

Can anyone clarify a consent issue for me?  In Scalera (SCC), McLachlin says that to establish the defence of consent, the defendant may prove that the plaintiff consented, or that a reasonable person in the position of the defendant would have believed that the plaintiff consented.  In other words, even if the defendant has made a mistake in concluding that the plaintiff consented, that mistake, if reasonable, may allow the defendant to avoid liability for battery.  So for instance if the plaintiff joined a game of hockey believing it to be non-contact and was body-checked by the defendant, the plaintiff did not consent to the body-check, but the defendant reasonably concluded that he did.  So no liability.

On the other hand, as a general rule, mistake is not a valid defence to an intentional tort.  For example, In Turner v Thorne the defendant made a delivery to the wrong address, and liability in trespass followed even though the defendant reasonably thought he was at the right place.  This mistake could be expressed as mistake about consent: the owner of the right address had given consent to the delivery, so if the defendant reasonably thought he was at the right address, his belief in consent must have been reasonable.  But this mistake does not relieve him of liability.

One way to distinguish between the two is to say that in the hockey game, the plaintiff's actions were the source of the defendant's reasonable but mistaken belief in consent, but with respect to the delivery, the plaintiff had no role in producing the defendant's reasonable but mistaken belief.  Another might be to say that in the first situation, the mistake about consent is "direct", whereas in the second, mistake about consent arises because of another mistake about a collateral matter (the address).  Can anyone clarify for me, or identify any other principled difference between these two kinds of scenarios?

Many thanks,
Bruce

________________________

Bruce Pardy
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The distinction, I'd have thought, must be the first. If I lead you to believe that I've consented, clearly I can't sue. But otherwise I can. There is a nice analogy on the latter point from trespass to goods from the English High Court. A mix-up caused workmen digging up a road to turn off a gas stopcock rather than the water stopcock they had been told to turn off. Liable in trespass: see Transco v United Utilities [2005] EWHC 2784 (QB), where no-one suggested that the reasonableness or otherwise of the error mattered.

Of course, we might want a public policy exception in the case of, say, doctors. Suppose a Jehovah's Witness, duly armed with a clear non-consent form in large red letters, is knocked down and rendered unconscious. An over-zealous policeman takes the form from beside him while clearing up; a couple of minutes later a passing doctor sees the accident, looks meticulously for a form and doesn't find it, and arranges a blood transfusion. We might want to exonerate the doctor. But this doesn't affect the underlying matter of principle.


Andrew

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Andrew Tettenborn Professor of Commercial Law, Swansea University School of Law, University of Swansea Richard Price Building Singleton Park SWANSEA SA2 8PP Phone 01792-602724 / (int) +44-1792-602724 Fax 01792-295855 / (int) +44-1792-295855

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