Documentation:Torts/Consent

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TORT LAW
CASEBOOK
Introduction
Dignitary Torts
Defamation • Discrimination • Harassment • Intentional infliction of mental suffering • Invasion of privacy • Trespass to the person
Property Torts
Interference with goods • Interference with land • Non-natural use of land • Private nuisance • Public nuisance
Negligence Tort
Duty of care • Breach of duty • Damage • Causation • Remoteness
Negligence Categories
Employment • Environmental pollution • Harmful products • Hosting patrons and guests • Infliction of mental injury • Misrepresentation • Occupation of premises • Professional services • Public authorities • Pure economic loss • Relational economic loss • Rescuers • Shoddy goods or structures • Treatment of indigenous children • Unborn children
Dishonesty & Abuse of Position Torts
Abuse of process • Breach of confidence • Conspiracy • Fraud • Inducing breach of contract • Injurious falsehood • Intimidation • Malicious prosecution • Misfeasance in public office • Passing off • Spoliation • Unlawful interference with economic interests
Strict Liability
Keeping dangerous animals • Non-natural use of land • Ultrahazardous activities • Vicarious liability
Defences
Apportionment of liability • Consent • Defamation defences • Defence of property • Denials • Excuses • Illegality • Legal authority • Limitation • Necessity • Self-defence
Remedies
Apologies • Damages • Injunctions • Insurance • Legal costs • Mitigation • Proprietary
Tort Law & Legal Systems
Charter values • Class actions • Concurrent actions • Constitutional torts • Indigenous dispute resolution • No-fault compensation schemes
Tort Theory
Instrumental theories • Constructive theories • Critical theories • Reflexive theories
Study Resources
1L strategy • Answer exercises • Quizzes • Beswick's course site • Opening Up Tort Law Project
Index
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Consent

A plaintiff's consent operates as a defence to tortious liability.[1] The onus rests upon the defendant to prove that the plaintiff consented to their interference with them.[2]

We can distinguish between a plaintiff's consent to what might be harmful acts from a plaintiff's voluntary assumption of the risk of harm (the doctrine of volenti non fit injuria).[3][4] The former tends to arise in reference to intentional torts, while the doctrine of volenti is more commonly the focus of negligence claims.[4] The distinction has been described as "the difference between actually consenting to being struck versus engaging in an activity in which one assumes the risk of being struck by virtue of the nature of the activity."[4]

Express and implied consent

"[C]onsent may be either express or implied."[5] Express consent refers to "where consent is directly and clearly given with explicit words".[6] Implied consent refers to "the agreement given by a person’s action (even just a gesture) or inaction, or [that] can be inferred from certain circumstances by any reasonable person."[6]

Implied consent may arise "when the plaintiff fails to object, or is silent in a situation in which a reasonable person would object to the defendant’s actions."[6] Whether implied consent has been conferred is very context specific. It is well-recognised, as the BC Supreme Court has affirmed, that "[w]hether a defendant can reasonably infer that a consent was given will always depend on the circumstances."[7]

Implied consent in sports

In the news
Battery in hockey games
In 2012, Drew Casterton, an amateur hockey player, suffered injuries after being body-checked on ice by MacIsaac.[8] Aside from criminal liability for MacIsaac,[9] in a separate civil trial,[10] Casterton was awarded over $700,000 in damages for the injuries and loss of income he had suffered.[11]

One area in which issues of implied consent commonly arises is in the context of contact sports.

A person who voluntarily participates in a sport is generally considered to have impliedly consented to all reasonable contact that can typically occur within the circumstances of that particular sport.[12] However, contact that was calculated to cause injury or that significantly departed from what is reasonable and typical may fall outside of the bounds of implied consent, and will thus be tortious.[12]

Capacity to give consent

The plaintiff must be capable of consenting to the defendant's interference with them. In the case of Toews v. Weisner, "because of the plaintiff’s age, it was common ground that consent had to be obtained from a parent or legal guardian rather than from the child herself."[5]

Factors that vitiate consent

The Supreme Court of Canada in Norberg v. Wynrib addressed the circumstances in which an apparently given consent may be vitiated because it was not genuinely given. The Court affirmed that "[c]onsent is not genuine if it is obtained by force, duress, or fraud or deceit as to the nature of the defendant's conduct, or if it is given under the influence of drugs."[13] The Court also considered that in some circumstances consent may be vitiated for reasons of public policy.

Mistake

A mistake is when the defendant causes a plaintiff's misapprehension in regard to the nature or quality of act or of harmfulness of consequences which harm the plaintiff.

Fraud/deceit

The defendant's fraud may vitiate a person's consent.[14] There are two factors to consider when determining whether consent is vitiated by fraud:

  1. [D]ishonesty, which can include the non-disclosure of important facts; and
  2. [D]eprivation or risk of deprivation in the form of serious bodily harm that results from the dishonesty.[15]

Duress

Duress will also vitiate consent.[14] Duress is when the defendant coerces the plaintiff with the use of threats.[16]

In Latter v. Braddell, a case involving a servant being subject to a medical examination at the orders of her mistress, the court explained that:

A submission to what is done, obtained through a belief that [the servant] is bound to obey her master and mistress; or a consent obtained through a fear of evil consequences to arise to herself, induced by her master's or mistress's words or conduct, is not sufficient. In neither case would the consent be voluntarily given...[17]

Public policy

In certain circumstances an apparently conferred consent may be vitiated for reasons of public policy:

  • Exploiting position of trust over vulnerable person: There are certain relationships that entail a position of trust between the parties, such as those of a doctor and patient. In the case of Norberg v. Wynrib, the appellant had a drug addiction which her doctor was aware of and was ostensibly treating. The doctor provided her access to the drug in exchange for sexual favours. La Forest J. held that "[a]s a doctor, he had knowledge of the proper medical treatment, and knew she was motivated by her craving for drugs. Instead of fulfilling his professional responsibility to treat the appellant, he used his power and expertise to his own advantage and to her detriment... [T]he unequal power between the parties and the exploitative nature of the relationship removed the possibility of the appellant’s providing meaningful consent to the sexual contact."[18]
  • Arranged fights: It is obviously battery to punch someone without their consent. But even when parties consent to a fight the common law limits the amount of permissible harm. It is generally accepted "fighting programs such as MMA or Boxing are not considered assault, as both parties consent to the fight and are supposed to stop before any serious bodily injury occurs. If a consensual fight progressed to causing serious bodily harm, the hurt party is no longer able to consent to that."[19]

Criminal or immoral acts

Ex turpi causa non oritur actio (Latin for "from dishonourable cause, an action does not raise") is a "long standing common law principle, that the courts will not assist a party whose case is based upon an immoral or illegal act".[20] The scope of the this principle has been limited through cases such as Hall v. Herbet[21] and Kim v. Choi – the principle only applies when it is necessary to protect the integrity of the legal system (a very high bar).[22] This principle can applied to prevent a plaintiff from profiting financially from illegal or immoral behaviour, but will rarely apply to physical injury cases.[23]

In Hall v. Herbert, the Supreme Court of Canada described an example of where the doctrine of ex turpi causa would apply in tort law, saying:

[A] case in which the courts would not permit a wrongdoer to use a tort action to profit from the wrongdoing is where one bank robber sues another for fraud or negligent misrepresentation. If the action were brought in contract, it would clearly be defeated on the basis of ex turpi causa non oritur actio.  The fact that the disgruntled robber chooses to frame his or her action in tort should make no difference.[21]

Assumption of risk

The doctrine of volenti non fit injuria (voluntary assumption of risk)[3] is an important defence to actions in negligence.[4]

The distinction between consenting to a tort and consenting to the risk of a tort was considered by the Alberta Court of Queen's Bench:

While the defence of consent and the defence of volenti non fit injuria (there is no injury to one who consents) are often used as interchangeable terms, there is, according to Klar in Tort Law, at page 99, a distinction between these defences: When consent is used as a defence in relation to intentional torts, it is argued that the plaintiff consented to the actual interference which constitutes the complaint.  For example, when consent is used as a defence to an action for battery, the defendant is alleging that the physical contact in question was one which had been agreed to.  Volenti non fit injuria used as a defence in negligence actions ... implies not that the plaintiff agreed to being injured, but that the plaintiff knew that there was a risk of injury stemming from the defendant’s conduct and accepted that risk.  In other words if the plaintiff agreed to being struck, it is consent, but if the agreement was only to accept the risk of being struck as a result of carelessness, volenti is the appropriate defence.[24]

Informed consent

There are certain contexts, such as medical treatment, in which the Courts are more prescriptive of what it means for consent to be meaningful – meaning there needs to be informed consent.

The Supreme Court of Canada considered the concept of informed consent in Reibl v. Hughes.[25] That case built upon Hopp v. Lepp, a Supreme Court judgment from the same year, in which the Court stated that "a patient's consent, whether to surgery or therapy, will give protection to his surgeon or physician only if the patient has been sufficiently informed to enable him to make a choice whether or not to submit to the surgery or therapy."[26] The requirement to obtain a patient's informed consent is a duty on doctors that when discharged will shield the doctor from liability for harm the risk of which the plaintiff was made aware.

At common law, "liability for lack of informed consent can be pursued through the torts of battery or negligence. The contact itself is deemed to be the harm, without the need to show bodily injury, as the tort is against a person's autonomy and independence."[25]

In the context of the doctor-patient relationship, jurisdictions differ as to the extent to which patients must be informed of their medical options and their risks:

  • The 'Bolam' test: The traditional approach of English common law was to afford deference to the doctor to decide how much information to disclose to the patient, having regard to prevailing medical practice. Under what is known as the Bolam test, "(i) [a] doctor is not negligent, if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art ... a doctor is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion that takes a contrary view. ... [T]hat does not mean that a medical man can obstinately and pig-headedly carry on with some old technique if it has been proved to be contrary to what is really substantially the whole of informed medical opinion."[27] This test for informed consent was endorsed by the Supreme Court of India in Kohli v. Manchanda, in light of the Court's understanding of the social conditions prevailing in India.[28]
  • The 'reasonably prudent patient' test: The United Kingdom Supreme Court recently abandoned the Bolam test of informed consent in favour of a more stringent standard that is also recognised in Canada, the United States, and Australia. The 'reasonably prudent patient' test requires the doctor to disclose all material risks to a patient, which in practice places a relatively higher onus on doctors. This is based on the view that a patient has the "right of self-decision ... [which] can be effectively exercised only if the patient possesses enough information to enable an intelligent choice ... all risks potentially affecting the decision must be unmasked."[29]

There can be exceptions to requiring informed consent, such as when treatment is necessitated by an emergency.[30] An emergency treatment is described by the Ontario Health Care Consent Act as "a situation where the subject of the proposed treatment is experiencing severe suffering or is at risk of sustaining serious harm if the treatment is not administered promptly."[30] A similar exception is found in s.12 of the British Columbia Health Care (Consent) and Care Facility (Admission) Act.

In British Columbia, consent to medical treatments and health care is governed by the Health Care (Consent) and Care Facility (Admission) Act.

Informed consent in British Columbia
Health Care (Consent) and Care Facility (Admission) Act, RSBC 1996, c 181, ss 4-6.[31]

4 Consent rights Every adult who is capable of giving or refusing consent to health care has

(a) the right to give consent or to refuse consent on any grounds, including moral or religious grounds, even if the refusal will result in death,
(b) the right to select a particular form of available health care on any grounds, including moral or religious grounds,
(c) the right to revoke consent,
(d) the right to expect that a decision to give, refuse or revoke consent will be respected, and
(e) the right to be involved to the greatest degree possible in all case planning and decision making.

5 General rule—consent needed

(1) A health care provider must not provide any health care to an adult without the adult's consent except under sections 11 to 15.
(2) A health care provider must not seek a decision about whether to give or refuse substitute consent to health care under section 11, 14 or 15 unless he or she has made every reasonable effort to obtain a decision from the adult.

6 Elements of consent An adult consents to health care if

(a) the consent relates to the proposed health care,
(b) the consent is given voluntarily,
(c) the consent is not obtained by fraud or misrepresentation,
(d) the adult is capable of making a decision about whether to give or refuse consent to the proposed health care,
(e) the health care provider gives the adult the information a reasonable person would require to understand the proposed health care and to make a decision, including information about
(i) the condition for which the health care is proposed,
(ii) the nature of the proposed health care,
(iii) the risks and benefits of the proposed health care that a reasonable person would expect to be told about, and
(iv) alternative courses of health care, and
(f) the adult has an opportunity to ask questions and receive answers about the proposed health care.

Contractual waiver

Courts do not readily assume that a plaintiff has waived their rights under tort law short of a contract.[32] A contractual waiver involves "a knowing relinquishment of rights ... where the evidence demonstrates that the party waiving has (1) a full knowledge of rights; and (2) an unequivocal and conscious intention to abandon them."[33]

The Ontario Court of Appeal has held "that if someone was misled by another party into believing they were not waiving their rights, when in reality they were, they will not waive away their rights." This applies even if the other party did not intentionally mislead the person waiving their rights.[34]

Revoking consent

The defence of consent is not available to the defendant if the plaintiff revoked their consent. When it comes to medical treatments and health care, the right to revoke consent is considered a consent right.[35]

Discussion questions

  • What do you think of the judge's reasons in Pile v. Chief Constable of Merseyside?[36] Is there another defence that you think would have been more applicable?
  • Some consensual fights, like those in the UFC, can cause serious injuries. Is the UFC inherently tortious?

Quiz


  1. ↑ Hambley v. Shepley, 1967 CanLII 168 (ONCA).
  2. ↑ Non-Marine Underwriters, Lloyd's of London v. Scalera, 2000 SCC 24 at para 2.
  3. ↑ 3.0 3.1 Peter Cane, Key Ideas in Tort Law (Oxford: Hart Publishing, 2017), 50.
  4. ↑ 4.0 4.1 4.2 4.3 Pacheco v. Degife, 2014 BCSC 1570 at para 94.
  5. ↑ 5.0 5.1 Toews v. Weisner, 2001 BCSC 15 (§6.3.1.2) at para 16.
  6. ↑ 6.0 6.1 6.2 Wex Definitions Team (April 2022). "Implied Consent". Cornell Law School (Legal Information Institute). (§6.3.1).
  7. ↑ Toews v. Weisner and South Fraser Health Region, 2001 BCSC 15, (§6.3.1.2) at para 19.
  8. ↑ Farrell v. Attorney General of Canada, 2023 ONSC 1474 at paras 184–89.
  9. ↑ "Hockey player sentenced to pay another $5K to victim for 2012 hockey hit". CBC News. 19 May 2017.
  10. ↑ Casterton v. MacIsaac, 2020 ONSC 190.
  11. ↑ Perkel, Colin (15 June 2020). "Hockey player checked from behind in rec game awarded $700K". CBC News.
  12. ↑ 12.0 12.1 Johnson v. Webb, 2001 MBQB 290 (§6.3.1.1) at para 4, citing Agar v. Canning, 1966 CanLII 578 (MBCA).
  13. ↑ Norberg v. Wynrib, 1992 CanLII 65 (SCC) (§6.3.2.1) at para 127.
  14. ↑ 14.0 14.1 Wex Definitions Team (August 2022). "Consent". Cornell Law School. Legal Information Institute. (§6.3.2).
  15. ↑ PP v. DD, 2017 ONCA 180 (§6.3.2.2) at para 79 citing R v. Hutchison, 2014 SCC 19 at para 67.
  16. ↑ Gilbert v. Stone, (1648) Style 72, 82 E.R. 539 (KB) (§6.2.1.1).
  17. ↑ Latter v. Braddel (1880), 50 LJQB 166 (CP).
  18. ↑ Norberg v. Wynrib, 1992 CanLII 65 (SCC) (§6.3.2.1) at para 49.
  19. ↑ McGlashan, Brian (26 February 2022). "Assault vs Battery: Full Guide in 2022". McGlashan & Company.
  20. ↑ Kinanis, Christos; Papavarnava, Vicky (13 January 2022). "THE DEFENCE OF ILLEGALITY – "EX TURPI CAUSA NON ORITUR ACTIO" – THE CYPRUS APPROACH". The Legal 500.
  21. ↑ 21.0 21.1 Hall v. Hebert, 1993 CanLII 141 (SCC).
  22. ↑ Kim v. Choi, 2020 BCCA 98 (§18.3) at para 49.
  23. ↑ Kim v. Choi, 2020 BCCA 98 (§18.3) at para 46.
  24. ↑ MacMillan v. Hincks, 2002 ABQB 283 at para 29.
  25. ↑ 25.0 25.1 Marin, Jan (3 August 2022). "What is Informed Consent and Why is it Important for Patients". Gluckstein Personal Injury Lawyers.
  26. ↑ Hopp v. Lepp, 1980 2 SCR 192 at page 196.
  27. ↑ Bolam . Friern Hospital Management Committee [1957] A All. E.R. 118 cited in Kohli v. Manchanda, [2008] INSC 42 (§18.1.1.1) at para 22.
  28. ↑ Kohli v. Manchanda, [2008] INSC 42 (§19.4.2.3) at para 26.
  29. ↑ Canterbury v. Spence, 464 F.2 772 (D.C. Cir. 1972) cited in Kohli v. Manchanda, [2008] INSC 42 (§18.1.1.1) at para 21.
  30. ↑ 30.0 30.1 Shatz, Samantha. "Capacity to Consent to Treatment – Decision-making in Personal Health Care". Howie, Sacks and Henry LLP.
  31. ↑ Health Care (Consent) and Care Facility (Admission) Act, RSBC 1996, c 181, ss 4-6 (§18.1.1.3).
  32. ↑ Nettleship v. Weston, [1971] EWCA Civ 6 (§18.1.2.1) at paras 18-19.
  33. ↑ Campbell v. 1493951 Ontario Inc., 2021 ONCA 169 (§18.1.2) at para 12.
  34. ↑ Walker Law (18 October 2022). "Canada: Giving Up Your Contractual Rights: The Doctrine Of Waiver". Mondaq.
  35. ↑ Health Care (Consent) and Care Facility (Admission) Act, [RSBC 1996], c 181, s 4.
  36. ↑ Pile v. Chief Constable of Merseyside, [2020] EWHC 2472 (QB) (§6.3.1.3).
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