276 Provocation It is generally accepted that provocation is not a defence to

276 provocation it is generally accepted that

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2.7.6 Provocation It is generally accepted that provocation is not a defence to the trespass torts. Provocation may prevent an award of exemplary damages or reduce the amount of 209 210 211. 212 213 214. 215 216. Civzl Liability Act 2002 (NSW) Part 7 The circumstances are based on the cnmmal law eqmvalents set out m the Crimes Act 1900 (NSl:\:7! ss 418-420 see J Goudkamp (2010) 18 Torts LJ 61 Some specific limits are imposed the mtentlonal or reckless mfhctrnn of death is not justified to protect property or prevent criminal trespass. If this ts any guide, there will be a high threshold for P to overcome to show that D's conduct was disproportionate. There are also limits on what damages can be awarded, for example, no damages for non-pecuniary loss can be awarded For discussion of the self-defence and 1llegahty provisions see J Goudkamp (2010) 18 Torts LJ 61 See for example Crumnal Code Act 1899 (Qld) ss 274-276, Greenbury v Lyon [1957] St R Qd 433, and similar provmons m Western Australia. Gambriell v Caparelli (1975) 54 DLR (3d) 661 Saler v Klingbiel [1945] SASR 171, Goss v Nicholas [1960] Tas SR 133, R v Portelh [2004] VSCA 178,at [ll]-[19]. Hackshaw v Shaw (1984) 155 CLR 614
70 • The Law ofTorts in Australia such damages which, but for the provocation, would have been awarded. 217 Although there has been the odd suggestion that there are circumstances where an award of compensatory damages could be reduced for provocation, 218 such suggestions have not been taken up. That said, it is not easy to discern the reason for the current position. Some concerns have been raised that to allow provocation as a defence would be inconsistent with the rule that contributory negligence cannot be a defence to battery, because in many cases provocation could equally be argued to amount to a failure to exercise reasonable care for one's own safety. The unavailability of provocation as a defence expresses the very high value that tort law puts on personal integrity and safety. 2.7.7 Consent An interference or injury to which the plaintiff has consented cannot be wrongful. It has already been suggested (in 2. 3) that consent should be treated as a defence to the intentional torts of trespass to the person rather than as an essential ingredient of those torts such as battery, assault and false imprisonment. It is not for the plaintiff to prove absence of consent but for the defendant to exculpate himself or herself by alleging and provmg consent to the acts in question. 219 If, however, the defendant proves that the plaintiff has consented to the acts in question, then an action for none of the torts considered in this chapter will succeed. A distinction should be drawn between the defence of consent and the defence of volenti non.fit injuria, which is discussed in this book principally in relation to the tort of negligence (see section 12. 2). A defence of consent will succeed if the defendant can prove that the plaintiff agreed to the mterf erence (such as the contact in battery or the total restraint of liberty in false imprisonment) or the inJury; a defence of volenti will succeed if the defendant can prove that

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