Personal Trespass Defence
Consent
There are a number of defences to trespass.
Consent is a defence to trespass. It may be expressed or implied. Some cases turn on defective consent. Some medical claims are based on inadequate explanation or consent.
Consent must not be obtained unlawfully. It must not be obtained by duress or by fraud.
The person giving consent must have the capacity to understand the matter consented to and its consequences. If a person is deceived as to the nature of the act concerned, then the apparent consent may be invalidated. Medical claims may be based on inadequate explanations and a lack of informed consent.
Consent of Minor
The person who consents must have the capacity to do so. It appears that parents may consent on behalf of their children. Older minors may have sufficient capacity, where it can be shown that they have the requisite maturity.
The Non-Fatal Offences against the Person Act 1997 provides that the consent of a minor who has attained 16 years to any surgical, medical or dental treatment which would otherwise constitute a trespass shall be effective as if he was of full age and the consent of his guardian is not required.
In the case of younger children, it would appear that parental or guardian consent is required. There are limits to the extent to which parents or guardians may consent to or withhold consent when this is not in the child’s interest.
Difficult questions arise in relation to consent and the role of parents when children are approaching or in adolescence. As children become more mature, the pre-eminence of the parent’s role gradually diminishes.
Implied Consent
Implied consent will generally be negated by an express retraction. The circumstances may be such that withdrawal of consent may not give rise to immediate termination of the trespass. A reasonable time may be required.
Issues of consent arise in the context of sports. A certain level of contact will be necessarily implied. Consent to a certain level of contact will necessarily be implied in some sports. However, there will be implied limits to the consent.
A person may commit an assault or battery by going wholly and significantly outside the scope of the sport’s rules. A person may be deemed to consent to minor infringements of the sport’s rules.
Consent Issues
Consent may arise from a course of previous conduct. Equally, the absence of consent may be inferred from an earlier objection.
Where consent is procured by fraud, duress or by unlawful means, it may be negated. Consent induced by fear is negated. It is likely that duress requires fear of something immediate that is implied or is expressly threatened rather than duress and pressure arising from circumstances, including economic circumstances.
A distinction has been drawn between a misrepresentation as to the nature of the act and as to incidental and essential matters. Misrepresentation regarding incidental matters does not negate consent.
Self Defence
Self-defence may be a defence against assault and battery. The force used must be reasonable and proportionate to the circumstances. The right to defend third parties may depend on the circumstances and the relationship with the person defended.
Self-defence and the defence of other persons and property may justify what would otherwise be a trespass. Reasonable force may be used for the protection of persons and property. What is reasonable depends on the circumstances. The force must be proportionate to the threat.
Greater force may be used to resist a violent act. If unreasonable force is used, this might itself constitute a battery.
A person may exercise force and violence to defend property from an intruder. Where the entry was without force or violence, it is necessary to request the trespasser to leave before resorting to physical measures.
Necessity
Necessity is a defence to trespass, where what is done is reasonable in the circumstances. Where a person does something necessary to save another’s property, he is not generally entitled to compensation. In some limited categories of cases, he may be entitled to claim monies by way of salvage.
Necessity may arise in circumstances of immediate and urgent danger. Actions must be reasonable and proportionate. For example, Gardai or firefighters may enter property to prevent the spread of fire. There must be proportionality between the risk being protected and the action taken.
Necessity may be a defence to assault. The steps taken must be proportionate to the risk. A person exercising lawful authority may commit what would be otherwise assault or battery. Members of the Garda Siochana have powers of arrest without warrant, where they have reason to believe that an arrestable offence has been committed.
Necessity is a circumstance of immediate and urgent danger. Actions must be reasonable and proportionate. For example, Gardai or firefighters may enter property to prevent the spread of fire. There must be proportionality between the risk being protected and the action taken.
Dellway Investments v NAMA [2011] IESC 14
“A property owner has a clear right to have his property respected by the State and safeguarded from trespass or seizure by others; but there may be imperatives arising from a state of war or armed rebellion, an accident, or an acute emergency created by fire, natural disasters or other sudden and extreme circumstances which justify transient trespass upon his property without his consent or without taking the time to see if he, as owner, wishes to urge any reason against it. Thus the placing of a fireman’s ladder in one’s garden, to save imperilled life and property, does not require audi alterem partem if the garden’s owner is absent. But it is the business of the law to identify such circumstances: otherwise the cry of ‘emergency’ would be sufficient to set all rights aside at the whim of the Executive.”
Lawful Authority
A person exercising lawful authority may commit what would otherwise be assault, battery, false imprisonment or trespass to land. Gardai have powers to arrest without a warrant where they reasonably believe that an arrestable offence (carries five or more years imprisonment) has been committed. Members of the public have more limited rights of arrest without a warrant.
An arrestable offence” means an offence for which a person of full capacity and not previously convicted may, under or by virtue of any enactment, be punished by imprisonment for a term of five years or by a more severe penalty. It includes an attempt to commit any such offence;
Any person may arrest without warrant anyone who is or whom he or she, with reasonable cause, suspects to be in the act of committing an arrestable offence. Where an arrestable offence has been committed, any person may arrest without warrant anyone who is or whom he or she, with reasonable cause, suspects to be guilty of the offence.
An arrest other than by a member of the Garda Síochána may only be effected by a person under the above powers where he or she, with reasonable cause, suspects that the person to be arrested by him or her would otherwise attempt to avoid, or is avoiding, arrest by a member of the Garda Síochána. A person who is arrested by a person other than a member of the Garda Síochána shall be transferred into the custody of the Garda Síochána as soon as practicable.
Self-Help
A person may use force and violence to defend his person and property from an intruder. Where the entry was without force or violence, it is necessary to request the person who has entered should usually be requested to leave before resort may be had to physical measures.
The courts do not favour self-help remedies. There is a risk that a person purporting to exercise such a remedy may overstep the mark and be himself found liable to the person against whom the remedy is exercised.
The person who uses force must be entitled to possession or occupation of premises and be entitled to take proceedings against the person concerned. The property protected must be that of the person concerned or other occupiers of the property.
Other Defences
Self-defence is a defence against trespass and assault. Assault or battery committed in the course of defending oneself is lawful. The force used must be reasonable and proportionate to the circumstances. The Criminal Law (Defence and the Dwelling) Act provides that a person need not retreat in his own dwelling house, in the exercise of self-defence. It covers the defence of other persons and property.
There is generally a right to defend third parties. It would appear that the modern position is that any person may defend another who is in danger, by using reasonable force against unlawful force.
Necessity may be a defence. The necessity must be real and immediate. What is done must be reasonable in the circumstances. Necessity is unlikely to be a defence to serious assaults, killing and homicide.
Chastisement
At common law, a parent had a right to exercise reasonable chastisement of his child. This might involve the application of force or confinement, provided that it was not excessive in the circumstances. The defence of reasonable chastisement has been found to be inconsistent with the European Convention on Human Rights.
Formerly, teachers being in loco parentis had a right of reasonable chastisement. The defence was removed by section 24 of the Non-Fatal Offences against the Person Act 1997.
References and Sources
Irish Books
Tully Tort Law in Ireland 2014
McMahon & Binchy Law of Torts 4ed 2013
McMahon & Binchy Case Book on the Law of Torts 3ed 2005
Connolly Tort Nutshell 2ed 2009
Quill Torts in Ireland 4ed 2014
Fahey Irish Tort Legislation 2015
Healy Principles of Irish Torts 2006
EU and UK Texts
Lunney, M. and K. Oliphant Tort law: text and materials. 5ed 2013
Peel, Edwin, Goudcamp, James Winfield and Jolowicz on tort 19 ed 2014
Horsey, K. and E. Rackley Tort law. 6ed edition 2019
Deakin, S., A. Johnson and B. Markesinis Markesinis and Deakin’s tort law 7ed 2012
Giliker, P. Tort 5ed 2014
McBride, N.J. and R. Bagshaw Tort law 6ed 2018
Steele, J. Tort law: text, cases and materials 4ed 2017
O’Sullivan, J., J. Morgan, S. Tofaris, M. Matthews and D. Howarth Hepple and Matthews’ tort: cases and materials 7ed 2015
Horsey, H. and E. Rackley Kidner’s casebook on torts 13ed 2015
Clerk & Lindsell on Torts 22ed 2019
Charlesworth & Percy on Negligence 14ed 2019