CONSENT AS A DEFENCE: AN INTRODUCTORY NOTE
The consent principle is general in its scope, firm in its acceptance, and central in its significance. It makes the plaintiff’s right of self-determination or autonomy the centerpiece of the law on intentional and to some extent other torts as well. Nevertheless, a cluster of subsidiary rules and definitions both enlarge and constraint its application. This paper deals with these rules and definitions. Short sketches of the rules are discussed here and later on they have been discussed in detail.
· Objective, manifested or apparent consent. The plaintiff effectively consents if appearances created by her words or acts lead the defendant to reasonably believe that she consented, even if the plaintiff did not subjectively intend to consent. The plaintiff likewise effectively consents if she actually or subjectively consents to the defendant’s conduct, even if that consent is not expressed or manifested.
· Incapacity, mistake, fraud and duress. The plaintiff’s consent or apparent consent is ineffective to bar recovery if the plaintiff lacked capacity to give consent due to her minority or mental disability and if the defendant knew or should have known it. Similar rules apply when the plaintiff is induced to profess consent as a result of the defendant’s misrepresentation or duress, or as a result of a mistake that the defendant knew or should have known.
· Consent obtained by abuse of power. Some professions of consent are obtained by serious abuses of power. When employers or psychiatrists use their special power or authority to obtain sexual favors from employees or patients, purported consent by the employee or patient may be ineffective even if these abuses fall short of duress.
· Mistake or misrepresentation as to collateral matter. The plaintiff’s mistake, including a mistake induced by a misrepresentation, does not vitiate her consent if the consent is only about a collateral matter and not going up to the essential nature of the transaction.
· Informed consent. Mistake in giving consent is usually the result of wrong information. Some defendants, because of their relationship to the plaintiffs, are under an affirmative obligation to provide appropriate information to the plaintiff to permit an informed consent are subject to liability if they fail to do so and harm results.
· Consent to conduct, not harm. The plaintiff who has consented or apparently consented to conduct cannot recover damages for harm resulting from that conduct, even though the plaintiff did not expect harm to result from and did not consent to harm.
· Burden of proof. In many cases, consent is not a true affirmative defense but instead it marks a deficiency in the plaintiff’s prima facie case.
Actual consent to an act is a subjective willingness for the act to occur. Apparent consent is conduct is conduct, including words that are reasonably understood by another as a reflection of consent. Either actual or apparent consent is effective to relieve the actor of responsibility for the acts addressed.
Because the appearance of consent is effective if it leads the defendant to reasonably believe that consent is actual, a plaintiff’s private and uncommunicted reservation does not subject the defendant to liability. The defendant is entitled to rely in good faith upon the reasonable appearance of the consent created by the plaintiff. In a well-known case[1], the plaintiff was in line of immigrants on board a ship and awaiting a vaccination needed to enter the country. She held up her arms as others did and received the vaccination. She suffered some harm from it and brought suit, but the curt held that even though she did not subjectively consent, her conduct gave the appearance of consent and that the defendant was entitled to rely upon the appearance even if the plaintiff never subjectively meant to consent at all. The question is whether the defendant reasonably believed that the plaintiff’s words or conduct reflected a genuine consent.
IMPLIED CONSENT BY CONDUCT
Effective consent can be manifested by non-verbal conduct of the plaintiff. It can be shown by actions, by a course of conduct, by social conventions applicable to the setting, by a relationship between the parties.
Many false imprisonment cases require judges and juries to interpret conduct. A customer, suspected of shoplifting, is asked to follow a guard and does so. She is taken to a room and interrogated by several employees. The non-verbal conduct and demeanor may count as an implicit threat to confine the plaintiff if she attempts to leave. On the other hand, her conduct in remaining there without protest may suggest consent. The defendant’s meaning is found in his non-verbal conduct and so is the plaintiff’s.
Whether the plaintiff has communicated an apparent consent by conduct rather than by conduct rather than by words turns on the interpretation of the facts, not on the rules. Conduct that might amount to an implied consent must be understood fairly and realistically. In Miller v. National Broadcasting Co.[2], an NBC producer entered the plaintiff’s home along with paramedics who called to resuscitate the plaintiff’s husband’s death. The producer filmed the events that culminated in the husband’s death. In a suit of trespass and other torts the NBC asserted that the plaintiff had impliedly consented to NBC’s entrance by calling the paramedics. The court simply said that this assertion was “devoid of merit” as indeed it was.
Probably no single act, segregated from its social or relational context, can evince consent, can evince consent. But a generalization about silence is not warranted, much less as a rule, because situations, relationships, social customs and expectations condition the interpretation of the acts and silences.
IMPLIED CONSENT BY CUSTOM
A special form of consent by silence arises in the cases of social custom, as distinct from overt conduct to the plaintiff. For example, in a given area it may be customary to permit hunting or fishing on un-enclosed rural lands, so that unless a landowner posts a notice to contrary, no one is a trespasser who enters such land to fish. Qualifications can be illustrated by the door-to-door solicitor case. Suppose social custom permit door-to-door sales persons to knock on your door and offer their wares. Such an entry upon your land is a technical trespass unless you have consented it. But if you don’t say anything then your silence is taken as consent to the social customs.
WHY IMPLIED CONSENT IS A DEFENCE?
Why should the plaintiff be barred from recovery on the basis of implied consent when he or she has not actually consented? In the usual case, the main reason is that the defendant who acts on a reasonable understanding of appearances is simply not the wrongdoer. The consent does not relieve him of liability at all; instead he is not a tort feaser at all. Somewhat more generally, any other rule would oppose the freedom and autonomy of both the parties, either by imposing liability or making it more difficult for them to obtain what they both want.
UNIMPLIED CONSENT
The usual case is one in which the plaintiff manifests consent to the defendant’s acts, whether or not the manifestation represents the plaintiff’s subjective state of mind. In the reverse situation, the plaintiff does not outwardly manifest consent but it does in fact subjectively or secretly consent to the defendants act. The consensus seems to be that a subjective or “real” is a bar to recovery even though the defendant was unaware of such consent.
It seems easy enough to see why a defendant is not a wrongdoer when he reasonably believes he is acting in accord with the plaintiff’s wishes; that is the case of manifested consent. The plaintiff’s private and unexpressed consent, however, gives the defendant no basis for claiming innocence; by hypothesis, he knows nothing of the plaintiff’s consent. Suppose the defendant enters the plaintiff’s land to fish in his pond, but believes he is unwelcome. In such a case he is prima facie a technical trespasser because he has the intent to enter and he does enter. If the plaintiff later brings in a suit for the trespass and the defendant learns that the plaintiff had in fact written but not mailed a note to say that he was welcome, why should the plaintiff’s private and unexpressed consent operate to bar the claim?
While implied consent indicates that the defendant is not a tortfeasor in the first place, unmanifested consent seems like a true affirmative defense, at least in the pond illustration. Why is that so? It is so because the plaintiff can prove a prima facie case by showing entry and intent to enter. The defendant must then sustain the burden of showing consent.
INCAPACITY TO GIVE CONSENT
EFFECTS OF INCAPACITY
Minors, intoxicated persons, insane persons and others similarly situated may lack capacity to give actual consent. A professed consent is not effective to bar the plaintiff’s claim if the plaintiff lacked capacity to give consent and the defendant knew or should have known of the plaintiff’s incapacity. The rule ultimately turns on appearances to the defendant rather than on the plaintiff’s secret status as a legally incompetent person, and is thus merely an example of the objective manifestation requirement.
If the plaintiff gives the appearance of consent and the defendant reasonably believes that the plaintiff has capacity to give consent and has consented in fact, the defendant will not have a intent required to establish an intentional tort against the plaintiff. Incapacity negates actual consent, but when the plaintiff gives the appearance of capacity and the appearance of consent then the defendant is not acting tortuously at all when he acts in accord to the appearance.
GIVING OR REFUSING CONSENT ON BEHALF OF
THOSE LACKING CAPACITY
Parents of minors:
When a minor lacks capacity to give consent, parents usually have the power to give consent on the minor’s behalf. The common example is that the parents are required to consent for a serious or substantial medical procedure to be performed upon a minor but the rule applies to other invasions of the child’s person as well or even to the confinement of the child.
Mentally incompetent persons:
An agent or guardian may give consent on behalf of the incapacitated adult when the act in question is arguably for the benefit of the incompetent person. The usual case is one in which the incompetent person needs medical treatment or surgery.
CONSENT OBTAINED BY DURESS
OR COERCION
PHYSICAL AND UNLAWFUL THREATS
Duress includes physical coercion or threats of it, that is force or coercive threats that are intended to and do prevent the plaintiff’s free choice. The defendant cannot arrest the plaintiff at gunpoint and then assert that the plaintiff consented to the arrest, because the plaintiff voluntarily chose confinement in preference to a bullet. Threats of physical force or confinement are commonly the basis for false imprisonment claims.
ECONOMIC THREATS
Economic threats that induce consent to economic transactions generally do not count as duress or improper coercion. For example, the buyer who refuses to pay more than Rs.2500 for some good is in effect threatening not to buy if the seller doesn’t lower the price, even though the good is worth its own original price, the seller can not recover damages saying that his consent was obtained by duress.
CONENT OBTAINED BY ABUSE OF
POWER OR POSITION
Some threats are viewed either as inherently coercive or abuse of power or position or both. If the threats are coercive, the “consent” is not genuine as a matter of fact and must be given no legal effect. If the threats are an abuse of power, the profession of consent, whether genuine or not, might be denied any legal effect as a matter of policy. The possibility that the consent should be disregarded for the either of these reasons is not limited to any particular group of cases because that possibility turns on the facts of the individual case. This considers the possibility that a profession of consent sexual relations are ineffective because of the abuse or potential for abuse of such a special relationship
CASE STUDIES DIFFERENTIATING
BETWEEN VOLENTI AND SCIENTI
THOMAS v. QUARTERMAINE.
(1887)18 QBD 685 AT 696
FACTS:
The plaintiff was employed in a cooling room in the defendant’s brewery. In the room there were a boiling vat and a cooling vat, and in between them ran a passage, which was in part only three feet wide. The cooling vat had a rim raised 16 inches above the level of the passage, but it was not fenced. The plaintiff went along this passage to pull aboard. The board struck fast and the plaintiff fell into the cooling vat and was scalded.
In this case BOWEN,L.J. said that the duty of an occupier of premises that have an element of danger upon them reaches its vanishing point in the case of those who are cognizant of the full extent of the danger and voluntarily run the risk. VOLENTI NON FIT INJURIA. This is not a new law : it is as old as the roman digest, and has been accepted by the courts of this country. That which would be negligence in a company with reference to the state of their premises or the manner of conducting their business so as to give a right to compensation for an injury resulting thereon. It is no doubt true that the knowledge on the part of the injured person which will prevent him from alleging negligence against the occupier must be a knowledge under such circumstances as leads necessarily to the conclusion that the whole risk was voluntarily incurred. The maxim be it observed , is not SCIENTI non fit injuria but VOLENTI non fit injuria. It is plain that mere knowledge may not be a conclusive defense. There may be a perception of existence of the danger without comprehending the risk. There may again be concurrent facts which justify the inquiry whether the risk was encountered voluntarily.
The defendant in such cases does not discharge his legal duty by just affecting the plaintiff with knowledge of a danger, which but for a breach of duty on his part would not exist at all. Knowledge is not a conclusive defense in itself. But when the risk has been voluntarily encountered , the defense is complete
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