Date: Thu, 23 Mar 2006 10:38:54 -0600

From: Richard Wright

Subject: A Question on Consent

The better and perhaps majority view in the United States, adopted in the Restatement, is that there is no battery if the person touched consented to the touching, even if the touching was criminal. Volenti non fit injuria. The difference between crime and tort is that the former deals with wrongs to the public as a whole while the latter deals with wrongs to the individual. While the individual can consent to what otherwise would be a wrong to him or her, he or she cannot consent to the wrong against the public as a whole.

-----Original Message-----
From: Robert Stevens
Sent: Thursday, March 23, 2006 10:09 AM
Subject: ODG: A Question on Consent

As we all know the victim's consent will not constitute a defence in cases of a criminal charge of battery where there is actual bodily harm, except in some exceptional cases (eg boxing).

What is the position in tort? Could the 'victims' of the consented to sado-masochistic acts in R v Brown [1994] 1 AC 212 have brought a claim in tort? What if I kill someone, on their request? Does their estate (or their dependents) have a claim?

Not a lot in the books except assertion, perhaps unsurprisingly.

All assistance gratefully received.

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