A prank which gets out of hand, an overfriendly slap on the back, surgical treatment by a surgeon who mistakenly thinks that the patient has consented to it, all these things may transcend the bounds of lawfulness without being characterised as hostile
We do not doubt that your examiners are capable of raising other interesting questions on this issue. Further and equally uncomfort able thoughts on mishaps in the course of medical treatment are expressed below in connection with the defence of consent.
Defences There are a number of defences which may be wholly or partially successful. These include provocation, self-defence and consent. As we shall see there is a certain amount of similarity between some of these; consequently, there may be a tendency to rely on each of them in the alternative in any particular case, depend ing on the facts. The major issue, as far as provocation is con s whether it affords a full or only a partial defence. Can insulting words in law ever justify a battery? As to self-defence, the difficulty here is whether the nature of the response is reasonable asisr in law. In principle this right extends to defending other persons and indeed property. Is it permissible to use the same degree of force in both cases?
One defence which deserves special mention is that of consent. This is a defence of general application in the law of torts although it appears in different guises with different labels, for example, volenti non fit injuria in negligence, licence in respect of trespass to land. In the context of an alleged assault and battery, consent may well be either express or implied. Particular problems have arisen recently in respect of sporting activities and medical treatment. The kind of questions that have arisen in recent cases have been concerned with such matters as the extent of implied consent to injuries sustained as a result of foul play in soccer and rugby in particular. Is every injury caused by conduct outside the rules of the relevant gam actionable? There have also been some interesting and controversial cases, for example, on the forced feeding of prisoners on hunger strike. The question which requires consideration is not whether the prisoner consents, which he may well not do, but whether there are other policy grounds upon which such feeding can be justified The issue of consent has proved somewhat troublesome in the context of medical treatment. In a number of recent cases members of the judiciary have expressed their disapproval of the pleading of an to in circumstances an action in battery(as alternative Where doctors have allegedly failed to disclose sufficiently the risks