Eight Elements Of Battery Case Study

Elements of Battery

The law of torts is the compensation of losses suffered by private individuals in their legally protected interest through socially unreasonable conduct. Moreover, the law of torts seeks to protect bodily integrity and is actionable per se. Consider the following case of Moon v. Whitehead, the legal issue considered was consent in the tort of battery. Ms. Whitehead the respondent, plead that she retired to bed in an apartment she and the appellant were sharing in Sydney for the duration of an interstate work conference. The appellant came into her bedroom uninvited, without her consent and forced himself upon her. After rejecting numerous advances and asking the appellant to leave, worried about the possibility of losing …show more content…
Whitehead was lawful. The onus fell on Mr. Moon to prove that the act complained about could be lawfully justified; he chose to use consent as a defense to satisfy this element. Consent if present negatives liability. What must be established is that it was a consent freely given and extended to the conduct of which the plaintiff now complaints. The principles of consent are measured by trying to understand the mindset of the person to whom the trespass is being committed against. In this case, there was direct evidence from the respondent that she did not consent to the interference with her person. Moreover, the appellant agreed that the respondent had never explicitly stated that she was consenting to penile-vaginal intercourse. He submitted that her consent was inferred from her conduct. In cases of consent proved by inference, it will often, but not inevitably be the case that there was no actual conversation about consent prior to the prima facie tortuous act of the defendant. However, the Honorable Master Harper, who was the trial judge, made a clear finding that the respondent expressed she was not consenting to the sexual activity which occurred after the first goodnight kiss, to which she agreed under duress to get rid of him. The action was not a part of the plaintiff’s agreed term, there was no valid consent. Moreover, it should be noted that the consent under duress could also be vitiated …show more content…
However, if this held true for all civil matters, it would become too simplistic, on a balance of probabilities, for plaintiffs to win cases as one individual would be able to bring an action forward and establish all the elements of the case. Conversely, one can also consider that a single sided onus is too large a burden to bare for one party. Consent as an element in civil cases, should be established by the plaintiff when it is limited to a particular action. This holds true in Ms. Whitehead’s case where consent was limited to a goodnight kiss. If this rule was applied to the case of White v Johnston, Ms. Johnston would only have to prove she consented to particular aspect of dental surgery and not the extensive measures her dentist took. Moreover, this would also hold true in the case of Dean v Phung, where similarly Mr. Phung’s consent was specific and not all services rendered. Establishing that there was no consent given in civil cases would substantially make the plaintiff’s case much stronger as it then limits the defendant to use one of the other defenses strategies like self-defense, defense of others, emergency, so forth. In civil sexual assault cases, none of these other defenses would be an adequate strategy for the defense council therefore, ignoring the principle of