Intentional torts - Consent

Learning Outcomes

This article details the defense of consent in the context of intentional torts. It clarifies the types of consent, requirements for validity (including capacity and scope), and circumstances that negate consent (such as fraud or duress). After reading this article, you will be able to identify situations where consent provides a valid defense to an intentional tort claim and analyze the factors affecting its effectiveness, preparing you to tackle related MBE questions accurately.

MBE Syllabus

For the MBE, you must understand consent as an affirmative defense to intentional torts. This requires analyzing whether the plaintiff agreed, expressly or impliedly, to the defendant’s conduct. You should be prepared to:

• Identify the types of consent: express, implied by conduct, and implied by law.
• Assess the validity of consent based on the plaintiff's capacity.
• Determine whether the defendant's conduct exceeded the scope of the consent given.
• Analyze situations where consent is vitiated by fraud, duress, or mistake.
• Apply these principles in various contexts, including medical treatment and athletic activities.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Which of the following forms of consent is generally inferred from a person's conduct or the surrounding circumstances?
   1. Express consent
   2. Implied consent
   3. Consent implied by law
   4. Statutory consent
2. A boxer agrees to participate in a sanctioned boxing match according to established rules. During the match, the opponent punches the boxer, causing injury. If the boxer sues the opponent for battery, the opponent's strongest defense is:
   1. Self-defense
   2. Defense of others
   3. Consent
   4. Necessity
3. A surgeon performs emergency surgery on an unconscious patient brought to the hospital after a car accident. The patient had not given prior permission for surgery. The surgery saves the patient's life. If the patient later sues the surgeon for battery, the surgeon's best defense would likely be:
   1. Express consent
   2. Implied consent by law (emergency)
   3. Necessity
   4. Absence of intent

Introduction

Consent is a primary defense to most intentional torts. If a plaintiff consents to the defendant's conduct, the defendant is generally not liable for that conduct, even if it would otherwise be tortious. Consent negates the wrongful element of the defendant's conduct. The central idea is that a person cannot recover for harm resulting from conduct to which they willingly exposed themselves. Consent can be given expressly, through words, or impliedly, through conduct or circumstances. However, for consent to be valid, the person consenting must have the capacity to consent, and the consent must not have been obtained through fraud, duress, or mistake as to a material element of the transaction. Furthermore, the conduct must not exceed the scope of the consent given.

Key Term: Consent A plaintiff's voluntary agreement to the defendant's conduct, which negates the wrongfulness of that conduct and serves as a defense to intentional tort liability.

Types of Consent

Consent can manifest in several ways:

1. Express Consent: The plaintiff explicitly communicates consent either verbally or in writing (e.g., signing a consent form for surgery).
2. Implied Consent by Conduct: Consent is inferred from the plaintiff's actions or conduct in the circumstances (e.g., voluntarily participating in a contact sport).
3. Implied Consent by Law: In certain emergency situations where the plaintiff is unable to consent, the law implies consent if immediate action is necessary to save the plaintiff's life or protect against serious harm, and a reasonable person would be expected to consent under the circumstances.

Key Term: Express Consent Consent explicitly given by the plaintiff through words (oral or written).

Key Term: Implied Consent Consent inferred from the plaintiff's conduct, custom, or the circumstances; or consent implied by law in emergency situations.

Requirements for Valid Consent

For consent to be an effective defense, several conditions must be met.

Capacity to Consent

The person giving consent must have the capacity to do so. Lack of capacity can arise from:

• Infancy: Minors are generally considered incapable of consenting to tortious conduct, although the effectiveness of a minor's consent can depend on their age, experience, and the nature of the conduct.
• Mental Incompetence: Individuals lacking the mental ability to understand the nature and consequences of the act cannot give valid consent.
• Intoxication: Consent may be invalid if the plaintiff was intoxicated to the point of incapacity, and the defendant knew or should have known of the intoxication.

Consent given by someone lacking capacity is generally voidable.

Scope of Consent

The defendant's conduct must not exceed the scope of the consent given by the plaintiff. Consent is generally limited to the specific act consented to or acts substantially similar.

• Example: Consenting to a medical examination does not constitute consent to surgery.
• Example: Consenting to play touch football does not constitute consent to being tackled aggressively in a manner outside the understood rules of the game.

Consent Must Be Voluntary

Consent must be freely and voluntarily given. It is invalidated if obtained through:

• Fraud: Consent induced by a substantial misrepresentation concerning the nature or consequences of the defendant's conduct is invalid. Fraud must typically go to an essential matter, not a collateral one.
  • Example: Consent to intercourse based on a fraudulent claim of using birth control may be invalid if the claim was essential to the consent. Consent based on a false promise of future marriage usually does not invalidate consent to intercourse itself.
• Duress: Consent given under physical threat or other improper coercion is not valid. Threats must generally be of immediate harm; threats of future harm or economic pressure may not suffice.
• Mistake: If the plaintiff consents based on a mistake concerning the nature or harmfulness of the defendant's conduct, the consent is ineffective if the defendant knew of the mistake and took advantage of it. If the mistake was caused by the defendant's misrepresentation, it falls under fraud. If the mistake is unilateral and unknown to the defendant, consent is generally still valid.

Specific Contexts

Medical Treatment

Generally, medical treatment requires the patient's consent.

• Informed Consent: Consent is valid only if the patient is informed about the nature of the treatment, the risks involved, available alternatives, and the consequences of non-treatment. Failure to obtain informed consent can lead to liability for battery (if there was no consent to the touching at all) or negligence (if the consent was uninformed).
• Emergency Exception (Implied Consent by Law): In an emergency where the patient is unable to consent (e.g., unconscious) and treatment is necessary to prevent death or serious bodily harm, consent is implied by law, provided a reasonable person would consent under the circumstances and there is no indication the patient would refuse if able.

Key Term: Informed Consent A person's agreement to allow something to happen (esp. medical treatment) that is based on a full disclosure of facts needed to make the decision intelligently.

Worked Example 1.1

Scenario: Paul agrees to participate in a friendly game of flag football organized by his colleagues. During the game, Dave, known for overly aggressive play, tackles Paul forcefully from behind, long after the play is over, causing a serious knee injury. Paul did not see Dave coming. Paul sues Dave for battery.

Question: Is Paul's consent to playing flag football a valid defense for Dave?

Answer: Likely no. While Paul consented to the normal contacts associated with flag football, Dave's conduct (a forceful tackle from behind, long after the play) likely exceeded the scope of that consent. Participants in sports consent to contacts within the rules and customs of the game, not to intentional or reckless conduct beyond those boundaries. Dave's aggressive act outside the context of play negates Paul's implied consent.

Athletic Contests

Participants in athletic contests generally consent to the normal contacts natural to the sport. This includes contact permitted by the rules, as well as some rule violations that are customary or reasonably foreseeable aspects of playing the game (e.g., minor fouls). However, consent does not extend to conduct completely outside the scope of ordinary play, such as intentional attacks unrelated to the game action or conduct demonstrating reckless disregard for a player's safety.

Worked Example 1.2

Scenario: Patient undergoes surgery for appendicitis. During the operation, the Surgeon notices a suspicious mole on Patient's abdomen, unrelated to the appendicitis. Believing it might be cancerous and wanting to save Patient a future procedure, Surgeon removes the mole without prior discussion or consent specifically for the mole removal. Patient had signed a general consent form for the appendectomy.

Question: Can Patient successfully sue Surgeon for battery regarding the mole removal?

Answer: Yes, likely. The general consent for the appendectomy did not extend to the unrelated removal of the mole. Unless the mole presented an immediate, serious threat discovered during the appendectomy (qualifying as an emergency), its removal exceeded the scope of the consent given. The surgeon needed specific consent for this separate procedure.

Exam Warning

Distinguish carefully between consent implied by conduct (objective indication of willingness based on actions) and consent implied by law (based on emergency situations where plaintiff cannot consent). Also, remember that consent is invalidated by fraud only if the fraud relates to an essential aspect of the interaction, not a collateral matter.

Revision Tip

When analyzing consent, always ask: (1) Did the plaintiff have capacity? (2) Was consent actually given (expressly or impliedly)? (3) Did the defendant's action fall within the scope of the consent? (4) Was the consent vitiated by fraud, duress, mistake, or illegality?

Summary

Consent is a defense that negates the wrongfulness of an intentional tort. It requires the plaintiff's voluntary agreement to the defendant's conduct. Consent can be express or implied (from conduct or by law). Valid consent requires capacity and must be voluntary (not induced by fraud, duress, or material mistake known to defendant). The defendant's act must remain within the scope of the consent granted. In medical settings, informed consent is typically required, though emergencies create an exception. In sports, participants consent to contacts usual to the game but not to conduct outside its scope.

Key Point Checklist

This article has covered the following key knowledge points:

• Consent is a defense to most intentional torts.
• Consent can be Express, Implied by Conduct, or Implied by Law.
• Valid consent requires the consenter to have legal capacity (age, mental state).
• The defendant’s conduct must not exceed the scope of the consent given.
• Consent obtained through fraud (as to essential matters), duress, or certain mistakes is invalid.
• Medical treatment generally requires informed consent, but emergency exceptions exist.
• Participation in athletic contests implies consent to normal contacts but not to conduct outside the game's scope.

Key Terms and Concepts

• Consent
• Express Consent
• Implied Consent
• Informed Consent