ABSTRACT
The question of whether consent is a defence to battery or whether the absence of consent is an element of the claim is unresolved in Australian law and has received little attention. Different conclusions have been reached on the issue in other jurisdictions and the same question is equally raised by other trespass claims. Yet, how consent is classified (ie as a defence or a denial of an element of a claim) and which party (ie plaintiff or defendant) bears the onus of proving consent (or its absence) may be of practical importance and of theoretical interest, thereby raising fundamental taxonomic questions. The primary aim of this article is to tease out the underlying conceptual, theoretical and practical issues that contribute to the ongoing uncertainties as to who bears the burden of proving, and the correct classification of, consent (or the absence of consent).
Dietrich, Joachim and Field, Iain, ‘Consent’ and Trespass to the Person: Denial of Liability or Defence? (2025) 48(2) Melbourne University Law Review 340.
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