The plaintiff's consent to the defendants
actions or conduct is a defense to a suit for any intentional tort.
There are two general types of consent that can be given; express consent
and implied consent. Express consent is when the defendant actually
says that he is willing to submit to the plaintiff's actions. Implied
consent is inferred by the plaintiff's conduct. See O’Brien
v. Cunard 28 N.E. 266 (Mass. 1891). For Example:
Paul willingly takes part in a tackle
football game. Dave tackles Paul, and Paul suffers a knee injury. Dave
is not liable because Paul implicitly consented to the contact by taking
part in the game.
However, consent by the plaintiff does not give the defendant the right
to do whatever he wants to the plaintiff because the contact that the
defendant engages in with the plaintiff cannot go beyond what the plaintiff
consented to. For example:
(1) Paul willingly takes part in
a tackle football game. Dave punches Paul in the face and breaks his
nose. Dave is liable because Paul only consented to contact resulting
from the football game. He did not consent to being punched.
(2) Paul agrees to allow Dave, a doctor, to perform surgery to remove
a rotted tooth in Paul’s mouth. While performing the surgery,
Dave notices that Paul has a tumor on his tongue. Dave removes the tumor.
Surprisingly enough, Dave is liable for battery here because, even though
Dave’s action was beneficial to Paul, Paul did not consent to
having the tumor removed.
Additionally, there are other types of consent that are invalid as well:
(1) Consent will be void if it is obtained by trickery or by fraudulent
means. See Bartell v. State
82 N.W. 142 (Wis. 1900).
(2) Consent will be void if it is given under duress (threats of physical
(3) Consent will also be void if it was given as a result of a mistake
and the mistake was either:
(a) caused by the defendant, or
(b) The defendant was aware of the mistake and he did not alert the
(4) If the consent that the plaintiff gives allows the defendant to
commit a criminal act, there is a split in the authority as to whether
or not this consent is valid:
(a) The majority view is that, if the criminal act
does not breach the peace, the consent is valid. An example of such
an act would be an illegal abortion. However, if the act breaches the
peace (like, for example, a street fight) then the consent is void.
(b) The minority view is that, even if the consent breaches the peace,
it is still valid.
It is important to note that, even according
to the minority view, the plaintiff’s consent is void if the plaintiff
is a member of the class of persons that the law set out to protect.
The State forbids boxing matches to take
place unless they are sanctioned by the State Boxing Commission. Any
fight that is sanctioned by the State Boxing Commission automatically
provides medical insurance for the boxers and the state passes this
statute to prevent people from boxing without adequate medical insurance.
Paul consents to participate in an unsanctioned fight. Paul’s
consent is void because he is a member of the class of persons the State
is seeking to protect with this law. Thus, Paul can sue for injuries
sustained in the match.
(5) Lack of informed consent can also void otherwise
valid consent, for example:
A patient consents to a medical procedure but is unaware of the side-effects
that could arise from that procedure. Because doctors generally have
a duty to inform their patients as to the side effects of medical procedures,
the patient’s consent in this case is considered void. Therefore,
if the patient suffers any side effects, he can sue the doctor for battery.
v. Grant 8 Cal. 3d 229 (1972).
Finally, Consent to bodily contact can be implied as a matter of law
if the contact is necessary to save the plaintiff's life. However, four
elements must be present in order for the consent to be implied by law:
(1) The plaintiff is unconscious and unable to decide whether to grant
or withhold consent.
(2) An immediate decision is required.
(3) There is no reason to believe that the plaintiff would withhold
consent if he were conscious.
(4) A reasonable person in the plaintiff’s position would consent.