Peter and Kevin are rugby players who play for opposing teams. One Saturday, during the match Peter kicks Kevin during play to try and prevent a try and seriously damages his right leg. Kevin is taken to hospital where he lapses into unconsciousness, but not before he has told a nurse that he is a Jehovah's Witness and does not want to undergo an operation of any sort. This information is noted own but the hospital authorities decide to treat Kevin anyway in his own best interests. A specialist decides that the injury is so serious as to require amputation of the leg.
Unfortunately the hospital records seen by Dr Diana, the surgeon are misleading and she amputates the wrong leg. After a second operation to remove the other leg, Kevin is given a blood transfusion. The blood in infected with HIV virus and Kevin consequently contracts AIDS. On his release from the hospital, Kevin pursues a vendetta against Dr Diana. H follows her on her way to work, muttering obscenities under his breathe, pretending accidentally to bump into her wherever possible. On one occasion losing her temper, Dr Diana grabs Kevin's wheelchair and pushes him into the street in the face of oncoming traffic.
Fortunately the traffic stops in time. Dr Diana fears that her health might suffer if Kevin's campaign continues for long. This problem raises a number of issues regarding the tort of battery, tort of negligence the Protection from Harassment Act. I will thus consider each issue in turn to try and provide a more comprehensive view of the rights and liabilities of each party in each circumstance. Let us first consider the Kick by Peter which injures Kevin severely which results in his leg needing to be amputated.
It seems clear that Kevin can sue Peter in an action in the tort of battery. Peter clearly intends to injure Kevin in order to prevent the scoring of a try, this contact was intended and unlawful (Wilson v. Pringle). Peter intentionally and without consent applied force directly to Kevin and so his behaviour constitutes a battery, it went beyond anything that would be acceptable in the normal conduct of a rugby game. However it could be argued that Peter's intention was not injure Kevin merely to prevent the try.
This is irrelevant because in the case of the tort of battery there need only be an intention as to the unlawful touching and no damage or injury need occur as a result. The defendant must have intended the action which causes the tort, the initial inference is necessary not the result. Therefore mere touching can amount to a tort without any damage caused. Peter may raise consent as a defence to battery arguing that Kevin impliedly consented to the kicking as part and parcel of the rugby game However, it seems Kevin must plead lack of consent to the touching.
In Freeman v. Home Office (No 2) 1984, McCowan held that the burden of proving absence of consent was on the claimant thereby implying that absence of consent is an essential element of the trespass. Therefore Kevin must plead lack of consent in order for the tort to arise. His consent it clearly not given expressly, however it can be implied which Peter may argue as a result of his participation in a dangerous and aggressive sport.
There are 3 elements of the consent requirement, capacity to give consent, and that the consent is given voluntary, which Kevin clearly has and does. However it is the second and third element that can provide Kevin with reasons as to why his consent may not amount to a defence. Kevin can argue that he did not consent to the nature and purpose of touching and that his consent did not cover the invasion he suffered because it went beyond the risks ordinary incidental to such sports and he did not consent to excessive violence and to Peter's deliberate and unfair play.
If it is held that Peter's kick was not intentional Kevin may thus still have an action in negligence where it can be shown that Peter's action was dangerous or reckless and where no intention need be shown, only that the injury was a reasonable and probable consequence of the act. Nevertheless is seems clear this was an intentional act which was outside the laws of the game and therefore amounted to a battery, regardless of the injury Kevin had suffered and that Kevin could successfully plea lack of consent as his implied consent to touching in the course of the game could not extend to violent kicking.
Let us next consider the treatment that Kevin receives at the hospital after he made them aware he did not want to receive any because of his religious beliefs. Clearly here Kevin has an action in the tort of battery as he did not consent to such procedures, however the important element of this situation is not the battery itself but the possible defences the hospital authority can raise. There are various defences to the tort of battery, consent being one but necessity being another which is probably a stronger defence to the Hospital Authorities actions in this situation.
In the case of treatment of adults there is a general view that everyone has the capacity and right to decide whether to consent of refuse medical treatment. The central importance of individual autonomy makes this presumption hard to rebut. Therefore if Kevin can prove that he did have the capacity to make this decision, then it appears that it would be conclusive of a valid consent, even if he made his decision for religious reasons or any reason at all.
Thus it is paramount that in order not to be liable that hospital authority must prove that Kevin was incapable of giving consent and there was a necessity to act. The test for capacity was set out in Re MB by the CoA – 'the inability to make a decision will occur when a) the patient is unable to comprehend and retain information which is material to the decision, especially to the likely consequences to having the treatment or not having the treatment and b) the patient is unable to use the information and weigh it in the balance as part of the process of arriving at the decision.
Therefore whether Kevin is able to give a valid consent would depend upon whether these tests are satisfied. A person who is unconscious will be unable to make a valid decision and so the Health Authority must argue that Kevin was in such a serious state that his pain or the fact he was slipping into unconsciousness made his refusal invalid. Kevin on the other hand can simply assert that he was in a state to make valid inferences as to the situation to enable him to conclude that he did not want an operation as this would conflict with his religious beliefs.
This would seem quite clear cut as the courts are unwilling for policy reasons to deny someone's personal autonomy in cases such as these where it is clear that his decision was based on rational conclusions, regardless of whether they agreed with his rational. Therefore the only other possible defence would be that of necessity, which was recognised as a principle that may justify action that would otherwise be unlawful in F West Berkshire Health Authority. Lord Geoff in this case outlined that 'the general rule is that consent is needed to render such (medical) treatment lawful.
If such treatment is administered without consent it is not to be lawful, it has to be justified on some other principle. It is the criterion of a need which points to the principle of necessity as providing justification In the same case Lord Bridge made it clear that there were policy reasons as to why such a defence existed stating that 'many of those unfortunate to be deprived of the capacity(to consent) might be deprived of treatment which it would be entirely beneficial for them to receive. ' Issues of necessity raise difficult questions such as, 'does sanctity of life allow the patients wishes to be overruled?
' It has been held that treatment of a competent person was not justified in the case of Secretary of State for HD v. Robb (1995), which would seem to be authority that Kevin's refusal is valid and the subsequent treatment thus amounted to a battery. However there are various difficulties with this some cases seemingly suggest that where the treatment carried on is medically necessary and it is carried out in the best interests of the patient then the defence of necessity can be successfully raised (Re T 1992)
Nevertheless the courts have been unwilling to take away an individuals freedom of choice by simply suggesting that the interference was in the best interest of the patient. The right to decide one's own fate presupposes the capacity to do so. Every adult is presumed to have that capacity, and although it is a presumption that can be rebutted, in this case it would seem very difficult to deny the Kevin had the capacity to make the decision he did and the Hospital's failure not to meet his decision in unlikely to be defended by suggesting there was a necessity.
As far as the amputation of the wrong leg and the subsequent blood transfusion which was infected with HIV virus it is clear that such procedures were negligent and that the hospital authority owed Kevin a duty of care which by their negligence they breached and which caused the damage and the resulting loss. It is clear is these situation that there was no intention involved in amputating the wrong leg or intentionally giving Kevin blood that was infected therefore would seem to be no action in intentional torts.
However Kevin can argue that these procedures were not consented to and so amounted to a battery although this cause of action would seem futile when he has such a strong claim in the tort of negligence and his loss has so obviously flowed from the breach by the hospital. Let us now consider Kevin's vendetta against Dr Diana and what if any remedyis available to Dr Diana. While the common law does not have a tort of Harassment as such, Kevin's behaviour is clearly intended to intimidate and annoy Dr Diana and so may qualify as an actionable tort.
For an intentional interference other than a trespass to be proved recognisable damage must be proved. It has been clear through the case law that mere distress is not enough and while damage does include emotional harm this must be in the nature of a recognisable psychiatric illness (Wainwright v. Home Office (No 3)). From the facts it does not seem that Dr Diana has yet suffered from psychiatric harm and so it would seem that she has no remedy in tort, however the case-law has shown a willingness to extend the principle of damage in recognising that emotional distress may in the future lead to psychiatric harm.
In the leading case of K v. Bush –> a boyfriend subjected his former girlfriend to harassment where she suffered a great deal of stress and sought to get an injunction. At first instance an injunction was granted and the defendant's council appealed on the basis that no actionable tort had been committed because no psychiatric harm resulted; arguing emotional distress was not enough.
The injunction was however upheld in the CoA, where although it confirmed that injury must be suffered, and that mere distress is not enough, held that the injunction was actioned to prevent the risk of the tort later which will cause a recognisable psychiatric illness. Dr Diana can therefore seek an injunction against Kevin sighting that although she has yet to suffer psychiatric illness the continuance of his campaign will inevitably lead to this. However it would seem that Diana will have a stronger claim under the Protection from Harassment Act as no damage need to already be caused in order to gain the protection.
Sec 1 of the Act makes it an offence to pursue a course of conduct which the defendant knows or ought to have known amounts to harassment and by sec 3, this is civilly liable. For a claim to succeed Diana must show that Kevin's behaviour amounted to a course of conduct which means on at least two occasions. She must also show that the Kevin's conduct was such that a reasonable person would conclude that it amounted to harassment and that Kevin new or ought to have known that his conduct amounted to Harassment of another.
The subjective and objective test must be satisfied and it would seem on the facts that this can be quite clearly demonstrated as Kevin was pursuing a vendetta against Dr Diana by harassing her, which suggests that he intended his behaviour to amount to harassment and such behaviour occurred on at least 2 occasions. Therefore although the Act does not expressly provide the Court with the power to restrain Kevin's conduct by an injunction, sec 3 of the Act allows for a claim in civil proceedings to be brought which can include the grant of an injunction.
Diana can also recover damages for anxiety caused by the harassment and other financial loss without having to prove that she has suffered a recognisable psychiatric injury. Kevin may also have an action in the tort of assault or battery against Dr Diana for pushing him into the road intentionally and unlawfully. However Dr Diana may be able to raise the defence of self defence although for this to come into play she must seek to show that she was in fear of a reasonable apprehension of threatened aggression.
Provocation is not a defence but may be relevant in showing Dr Diana believed she was going to be attacked or in mitigation of damages claimed by Kevin. It is clear however that the tort does not operate with a penal function but merely a compensatory and thus pursuing Dr Diana in tort and claiming damages where his behaviour is the cause, will prove difficult for Kevin. However it is clear that if Dr Diana cannot prove self-defence that her behaviour amounts to criminal conduct in the form of a battery.