D will not be liable where it is shown that C freely and voluntarily agreed to the relevant interference. Consent may be express or, more usually, implied from C’s conduct. Whether or not the claimant has consented to the contact or interference is assessed objectively: ‘a claimant will be taken to have consented to the defendant’s actions if it appears from the former’s conduct that he consented’ (Goudkamp and Nolan, Winfield & Jolowicz on Tort, 21st edn, 2025 at 22-008).
Somewhat surprisingly, it is unclear whether the burden of showing a lack of consent rests with the claimant or the defendant. In Freeman v Home Office (No 2) [1984] QB 524, 539 McCowan J said that the burden lay with the claimant to prove absence of consent but this was doubted by Sir Anthony Clarke MR in Ashley v Chief Constable of Sussex Police [2006] EWCA Civ 1085 at [31]: ‘it seems to me to be open to debate whether McCowan J’s conclusion on burden of proof is correct’.
The precise relationship between consent and volenti (or assumption of risk) is far from clear. In older cases in particular the terms seem to be used interchangeably: see for example Viscount Haldane LC’s reliance on volenti in Herd v Weardale Steel Coke & Coal Co Ltd [1915] AC 67 and Lord Denning MR in Lane v Holloway [1968] 1 QB 379 and Murphy v Culhane [1977] 1 QB 94. On the other hand, Sir John Donaldson MR said that volenti and consent were ‘wholly different’ concepts. In practice, the distinction may be of little, if any, significance. In these Notes, consent will be treated as a defence which is available in tort actions generally while volenti (or assumption of risk) will be treated as a defence which is relevant only to the tort of negligence.
A good example of a defendant being able to rely on consent is provided by Herd v Weardale.
C, a miner, descended into D’s pit at 9.30 am at the start of his shift. C was due to return to the surface at end of his shift at 4.00 pm. C was instructed to carry out certain work but, in breach of contract, he refused to do so. At 11.00 am he asked to be taken back up to the surface. D refused and C was not taken up until 1.30 pm. The House of Lords held that C had no claim for false imprisonment. Viscount Haldane LC explicitly relied (at 71) on the doctrine of consent:
‘If a man gets into an express train and the doors are locked pending its arrival at its destination, he is not entitled, merely because the train has been stopped by signal, to call for the doors to be opened to let him out. He has entered the train on the terms that he is to be conveyed to a certain station without the opportunity of getting out before that, and he must abide by the terms on which he has entered the train. So when a man goes down a mine, from which access to the surface does not exist in the absence of special facilities given on the part of the owner of the mine, he is only entitled to the use of these facilities (subject possibly to . . . exceptional circumstances . . .) on the terms on which he has entered.’
Less straightforward is the Robinson v Balmain case decided by the Privy Council a few years before Herd.
D operated a ferry between Sydney and Balmain. On the Sydney side, a sign above the entrance to D’s wharf stated that a fee of one penny had to be paid on entering or leaving the wharf, whether the customer had travelled by ferry or not. No charge was made at the Balmain side. C entered the wharf on the Sydney side by the entry turnstile paying one penny. He discovered that he had just missed a ferry and, unwilling to wait 20 minutes for another one, decided to leave. He refused to pay another penny and when he tried to force his way out by the exit turnstile, he was forcibly restrained by D’s employees. Subsequently C did manage to leave without paying. He brought a claim for assault and false imprisonment. The Privy Council held that the claim failed.
‘There is no law requiring the defendants to make the exit from their premises gratuitous to people who come there upon a definite contract which involves their leaving the wharf by another way.’ (Lord Loreburn)
While C’s apparent consent to the terms set out on the notice at the entrance to the wharf and/or the possibility of leaving the wharf by ferry might suffice to preclude liability on D’s part for false imprisonment, the dismissal of the claim for assault/battery seems harder to justify, particularly in light of the Court of Exchequer’s decision in Sunbolf v Alford (which Deakin & Adams (Markesinis and Deakin’s Tort Law, 8th edn, OUP 2019, 359) note was not cited to the Privy Council). While an occupier may enjoy the right to use reasonable force to remove a trespasser from his premises, it would not seem to follow such a right exists so as to restrain someone from leaving.
C brought an action for trespass alleging that he had been assaulted and beaten by D and had his coat removed and taken. D entered a plea that C had entered his inn and ordered, and been served, ‘divers quantities of tea and other victuals’ (249) but that C had refused to pay. In response D ‘did gently lay his hands on the plaintiff, to prevent him going’ without paying or giving security for the debt and further that D did ‘to a gentle and necessary degree lay his hands on the plaintiff, and strip and pull [his] coat’ from him as security for the money owed (250). C demurred to the pleas on the ground that they provided no justification for the trespasses alleged. The Court of Exchequer gave judgment for C. D had no basis for justifying an assault ‘under the pretence of detaining a man for a debt due’ (Lord Abinger CB at 252). While an innkeeper might have a lien upon the goods of his guest, he had no lien on the person of his guest (see Parke B at 253).
It is clear that the consent defence extends to the situation where in practice the claimant may be seen to be consenting to the risk of contact, rather than a specific instance of contact. This is evident in cases involving games, sports and even fights.
C, aged 15, was practising with the four other members of his jazz quintet. The group decided to take a break and soon began to engage in horseplay which involved throwing pieces of bark chipping at one another. At one point, C threw a piece of bark at D. D then threw it back at C, hitting him in the eye and causing serious injury. C brought a claim for damages against D based on negligence and battery. The judge held that D was liable in negligence and battery and rejected the defence of volenti. The judge reduced the agreed damages by half on account of contributory negligence. The Court of Appeal allowed D’s appeal. As for the claim in negligence, D’s actions did not amount to a breach of the duty of care which he owed C. As for the claim in battery, C had consented to the risk of being injured in the manner in which the injury occurred.
Dyson LJ, with whom Sir Andrew Morritt VC and Clarke LJ agreed, said (at [21]) that ‘[i]n a sport which inevitably involves the risk of some physical contact, the participants are taken impliedly to consent to those contacts which can reasonably be expected to occur in the course of the game, and to assume the risk of injury from such contacts.’
Dyson LJ continued (at [24]):
‘By participating in this game, the claimant must be taken to have impliedly consented to the risk of a blow on any part of his body, provided that the offending missile was thrown more or less in accordance with the tacit understandings or conventions of the game . . . The game was played on the basis that the objects were thrown at no particular part of the body. It follows that an object thrown in the general direction of a participant, without negligence and without intent to cause injury, but which happened to hit him in the face, was being thrown in accordance with the understandings and conventions of the game, and in a manner to which the participants had consented.’
Dyson LJ said that this is what had happened.
Blake v Galloway can usefully be compared and contrasted with Lane v Holloway.
C, a man in his 60s had insulted the wife of D, a man in his 20s. An argument between the two men followed in which C threw a punch at D’s shoulder. D responded by hitting C hard in the eye, causing serious injury. C sued D for damages for assault. D relied, inter alia, on the defence of volenti. The Court of Appeal held that the defence did not apply: C had not assumed ‘the risk of a savage blow out of all proportion to the occasion’ (Lord Denning MR at 386-387).
Goudkamp and Nolan (Winfield & Jolowicz on Tort, 21st edn, 2025 at 22-010) note that ‘[c]onsent must be given freely for it to be effective’. The defence will not apply where the reality is that the claimant submitted to the defendant’s will rather than freely agreed.
C’s daughter alleged that she had been raped by C’s ex-partner. DC Hull visited C several times to take a statement from her, each visit lasting several hours. Hull asked C to recount in detail her sexual history with her ex-partner. At various times, C became upset at which point C would D put his arms around her purporting to comfort her. On one occasion, Hull kissed C’s neck while rubbing her thigh with his hand before touching her buttocks. Tugendhat J held that the cuddling and comforting, as well as the kissing and touching, amounted to battery.
Tugendhat J found that none of the contact was acceptable. As Hull had denied that any of the contact was unacceptable, there was no evidence to the effect that consent was sought or given.
In any event, Tugendhat J said, consent could not have arisen. C had wanted to complete her statement so that Hull would reveal to her what was in her daughter’s statement and she wanted Hull to arrest her ex-partner. As a single mother of three children with a limited income, she was a vulnerable woman. Furthermore, ’[s]he was doubly vulnerable because her desire to see her daughter’s assailant arrested made her to some extent a captive. Submission is not consent. She wanted to co-operate with Mr Hull, whatever he asked her to do.’ (At [166]).
C was subjected to sexual abuse by D1, a teacher, while he was a pupil at D2’s school. The abuse continued after C had left the school. Subsequently, D1 pleaded guilty to two counts of indecent assault and two counts of buggery and was sentenced to eight years’ imprisonment. C brought claims for damages against D1 and D2. The judge found that C had submitted, rather than consented, to the sexual activity and awarded C damages of some £1.1m. The Court of Appeal dismissed D2’s appeal. McCombe LJ said (at [126]) that consent ‘is an ordinary English word and will import the same meaning in both criminal and civil law’. The judge had accurately expressed the law as being that ‘[a] person consents to sexual activity with another if they have the freedom and capacity to consent’ and that ‘[s]ubmission is not the same as consent’. McCombe LJ held that the judge had been entitled to find that C’s consent had not been genuine as ‘it had been overridden by psychological coercion, derived from the grooming and abuse’ C experienced at school (at [128]).
C’s consent will be vitiated, or invalidated, where she has been deliberately deceived by D as to the nature of the interference or as to D’s identity.
The parents of C, aged 16, arranged for D, a choirmaster, to give C singing lessons. D told C that he needed to make an air passage in her body to improve her singing voice. C believed that she was consenting to a surgical operation and was unaware that D was actually having sex with her. The Court of Criminal Appeal held that C had been properly convicted of rape.
The decision in Williams may be contrasted with that in Linekar, where the false representation was not as to the nature of the contact or the identity of the actor.
D agreed with V, a working prostitute, to have sex with her in return for payment of £25. After the two had had sex, D made off without paying V. D was convicted at trial of V’s rape. The Court of Appeal quashed D’s conviction. V’s consent to sex with D was not destroyed by D’s false representation that he intended to pay her the £25.
Difficulty arises in cases where the defendant has deliberately withheld information from the claimant.
The Court of Appeal allowed D’s appeal against conviction for assault occasioning actual bodily harm (OAtPA 1861, s 47). D, a registered dental practitioner, had continued to treat patients having been suspended from practice by the General Dental Council. The Court held that, for the purposes of the criminal law, consent to an act would only be negatived where the victim was deceived as to the identity of the person carrying out the act or the quality or nature of the act. A mistake as to identity does not extend to cover the qualifications or attributes of the person.
The Court of Appeal accepted (at 450) that D’s ‘reprehensible’ conduct in failing to tell her patients that she was no longer qualified to practise might found the basis for a civil claim for damages. However, it is not clear whether the court had in mind liability in negligence or battery or both.
The approach in Richardson, a failure to inform case, may be contrasted with the following two cases.
The action involved claims by numerous patients against a dentist for unnecessary treatment. Dyson J found (p 4) that D had ‘deliberately embarked on large scale treatment of these plaintiffs which he knew was unnecessary and that he deliberately withheld from them the information that the treatment was unnecessary because he knew that they would not have consented had they known the true position.’ Dyson J held that battery was made out at least in relation to those patients whose teeth had not required any treatment.
D asked three women to participate in a breast cancer survey to enable D to create a digital database which could be marketed to doctors. The women agreed to let D show them how to examine their breasts and this involved D himself touching their breasts. While there was no evidence that D had a sexual motive, the women’s evidence was that they had only consented on the basis that D was medically qualified, or had medical training, and that the touching was for a medical purpose. D’s appeal against his conviction for indecent assault was dismissed.
Rose LJ distinguished Richardson on the ground that case had ‘proceeded solely by reference to the point on identity’ and that the prosecution had not relied on the nature or quality of the defendant’s acts (336). In the immediate case, Rose LJ said (337), there was consent to the nature of the act but not its quality: the women were consenting to touching for medical purposes not to indecent behaviour. (Against this latter distinction, it might be objected that the main point was whether the behaviour was indecent in the first place – see Smith, Hogan & Ormerod’s Criminal Law, 17th edn, 2024, 838).
Richardson was also distinguished in Melin.
D, who was not medically qualified, was convicted of causing grievous bodily harm contrary to s 20 of the Offences against the Person Act 1861 having administered Botox injections to the two complainants. On appeal D’s conviction in respect of the first complainant was quashed as D’s representation that he was medically qualified had been made after the complainant had decided to undergo treatment. The Court of Appeal upheld D’s conviction as regards the second complainant: the jury had been entitled to accept the complainant’s evidence that she believed that D was medically qualified and would not have undergone the treatment had she not understood him to be medically qualified.
Simler J, giving the judgment of the court, said (at [27]) that ‘[a]t common law it is generally well established that for offences against the person a defendant’s fraud as to conduct will not negative the victim’s consent unless it deceives the victim either as to the defendant’s identity or as to the nature of the act.’
Simler J noted (at [29]): ‘Plainly it would be undesirable for the law to treat all false or fraudulent representations as vitiating consent because that would lead to, at least potentially, trivial lies about the person or the conduct, treatment or activity as giving rise to criminal liability.’
Simler J noted (at [33]) that in Richardson ‘the fraud was not as to whether the defendant was a qualified dentist but as to whether she remained licensed by her regulatory body’. Further, Richardson could be distinguished from the immediate case as in Richardson ‘there was a failure to inform, here there were, on the Crown’s case, positive false representations that the defendant was a doctor’.
C brought claims in negligence and trespass against her surgeon on the ground that he failed to advise her properly of the potential adverse effects of the proposed treatment on C’s painful scarring. Both claims failed. The issue in the trespass claim was whether C’s consent was ‘real’. According to Bristow J ‘once the patient is informed in broad terms of the nature’ of the proposed treatment, consent based on that information is real consent: ‘justice requires that in order to vitiate the reality of consent there must be a greater failure of communication between doctor and patient than that involved in a breach of duty [in negligence]’.
Bristow J said that a withholding of information in bad faith would amount to fraud, and hence invalidate the consent. Bristow J also thought that an action in trespass against a surgeon had been appropriate in an earlier case in which a boy admitted to hospital for a tonsillectomy had, due to an administrative error, been circumcised.
Note that Bristow J drew an important distinction between claims in negligence and trespass based on lack of consent: with the former, C must show not only a breach of the duty to inform but also that he would not have had the treatment had the breach not occurred. In trespass, C need only show lack of consent: whether or not C would have had the operation had he been given full information is irrelevant to liability.
‘An adult patient who . . . suffers from no mental incapacity has an absolute right to choose whether to consent to medical treatment, to refuse it or to choose one rather than another of the treatments being offered . . . This right of choice is not limited to decisions which others might regard as sensible. It exists notwithstanding that the reasons for making the choice are rational, irrational, unknown or even non-existent’ (In re T (Adult: refusal of treatment) [1993] Fam 95, 102 (Lord Donaldson MR)).
So where a competent adult patient asked that the ventilator keeping her alive be switched off, a failure by the medical team to comply with the request would have amounted to a battery, as treatment via the ventilator amounted to a continuing application of force: B v An NHS Hospital Trust [2002] EWHC 429 (Fam).
Not everyone is capable of giving consent. A person may lack capacity by reason of age and/or mental impairment (as to which see below under Statutory Powers).
A very young child is incapable of giving consent although, generally, someone with parental responsibility for that child may give consent on their behalf.
The Family Law Reform Act 1969, s 8(1) provides that ‘[t]he consent of a minor who has attained the age of sixteen years to any surgical, medical or dental treatment which, in the absence of consent, would constitute a trespass to his person, shall be as effective as it would be if he were of full age’.
Note though that the Court has the power to override the consent given by a child to whom s 8(1) applies:
The case concerned a young person (YP), aged 16. YP had been born female but began to identify as male at the age of 12. YP’s parents, who had separated from each other, disagreed as to how YP’s gender dysphoria should be treated. YP’s mother (M) sought a prohibited steps order under the Children Act 1989, s 6 to prevent YP’s father (F), with whom YP lived, from arranging treatment for YP for gender dysphoria. By the time the matter came to trial, M was seeking an adjournment pending the outcome of a six-month assessment which YP was undergoing at a private gender dysphoria clinic. YP’s father (F) argued that the proceedings should be discontinued as they were causing YP substantial distress. The judge held that the proceedings should be dismissed but the Court of Appeal allowed M’s appeal. The Court of Appeal held that the proceedings should be adjourned to allow for YP’s assessment to be completed and for the court to consider that assessment if need be.
Sir Geoffrey Vos MR noted that the case mainly concerned the issue of what was in a child’s best interests. As YP was a child aged between 16 and 18, he was competent to give consent in the same way as an adult (see S 8, FLRA 1969). Furthermore there was at present no question as to YP’s mental capacity. Nevertheless, the court retained ‘the right to override consent given or withheld by a child over 16 on welfare or best interests grounds in very limited and well-defined circumstances’ (at [2]).
Sir Geoffrey Vos MR said that ‘the court was simply being asked to keep open the possibility that it would, in the future, need to decide whether hormone treatment, to which the young person had consented, was or was not in his best interests’ (at [42]).
Sir Andrew Mcfarlane P, agreeing with Vos MR, said (at [46]) that ‘the court will only override the consent of a competent young person, who is over 16, where it is necessary for the court to intervene to protect them from “grave and irreversible mental or physical harm” (quoting from Nolan LJ’s judgment in In re W (A Minor) (Medical Treatment: Court’s Jurisdiction) [1993] Fam 64, 94).
The well-known Gillick case establishes that a child under 16 may be sufficiently mature to give consent.
‘It will be a question of fact whether a child seeking advice has sufficient understanding of what is involved to give consent valid in law’ (Lord Scarman at 188-189).
‘The ratio decidendi of Gillick was that it was for doctors and not judges to decide on the capacity of a person under 16 to consent to medical treatment’ (Lord Burnett CJ giving the judgment of the Court of Appeal in R (Bell) v Tavistock & Portman NHS Foundation Trust [2021] EWCA Civ 1363 at [76]).
Again, note that the Court may override consent given by a Gillick-competent minor.
Finally note that in In Re F (Mental Patient: Sterilisation) [1990] 2 AC 1, 72, Lord Goff said that ‘in certain limited circumstances the public interest may require that [a person’s consent to physical interference with his body] is not capable of rendering the act lawful’. McBride and Bagshaw disagree and maintain (7th edn, 2024 at 33) that ‘physical interference with another person’s body is always lawful for the purposes of tort law if he consents to it’. McBride and Bagshaw acknowledge that in limited circumstances consent may not render an act lawful for the purposes of the criminal law, citing R v Brown [1994] 1 AC 212.
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