In Defense

James Goudkamp, Tort Law Defences (2013).

Who cares about tort defenses, or as Australian turned Englishman James Goudkamp spells it, “defences”? The decline in the potency of tort defenses over the last century, their only occasional use in actual litigation, their atrophy in contrast to the robust elements of negligence law, their lack of specificity to tort, their definition as second-tier questions, and their frequent specification by statute rather than common law—all have resulted in a fairly undersized group of interested scholars, according to Goudkamp.1 But for those of us who, nevertheless, maintain an interest in the topic, Goudkamp’s book is a must read.

At the start, after considering rival definitions, Goudkamp defines a tort defense as a device which “relieves the defendant of liability even though all the elements of the tort in which the claimant sues are present.”2 Then, through a vivid series of case examples, Goudkamp differentiates defenses from denials of an element of plaintiff’s prima facie case. Once separated, Goudkamp divides defenses into two mutually-exclusive sets: justification defenses and public policy defenses. In the first group “the defendant acted reasonably in committing a wrong.”3 Included within this group are defenses such as self-defense, consent, and public necessity. In the second, the defendant “makes no claim whatsoever about the justifiability of his acts,” but should not face liability anyhow.4 To this category, Goudkamp assigns defenses such as absolute privilege, various immunities and limitation bars. In addition to this dual taxonomy, Goudkamp ultimately argues for a third category which he terms “denials of responsibility,” and distinguishes them from excuses, for infancy and insanity.5

In support of this taxonomy, Goudkamp cites cases and arguments from a wide variety of common law courts and scholars. Indeed, the book asserts that its analysis is “not specific to any jurisdiction,” and is instead “intended to be relevant to all legal systems that are based on the common law.”6 It’s an audacious claim, particularly in light of the statutory and common law fragmentation of traditional defenses that Goudkamp himself later notes.7 Nevertheless, the book delivers on this promise of relevance across borders, at least from an American point of view.

One illustration that comes immediately to mind concerns the current Restatement. Reporters for the Restatement Third: Intentional Torts are just now deciding whether the concept of apparent consent constitutes an element of the battery cause of action, or rather a defense to it. The Restatement Second took the latter view. It subjected an actor to liability for battery if “he acts intending to cause a harmful or offensive contact,” and a harmful contact “directly or indirectly results.”8 The Restatement Second then addressed consent within its division on defenses, under the chapter on “justification and excuse.” By contrast, the current draft of the Restatement Third treats the absence of consent as an element of battery. Section 101 of the draft Restatement Third requires that “the actor intends to cause a contact with the person of the other,” “causes such a contact,” the contact “(i) is offensive or (ii) causes bodily harm to the other,” and “the other does not actually consent to the contact.” Absence of consent is a constitutive element of the plaintiff’s prima facie case.

Should consent be an element or defense? Goudkamp’s work, though ultimately directed at the somewhat different question of how to classify defenses once defined, provides valuable insights. First, Goudkamp discusses the transposable nature of tort law elements and defenses.9 Issues can be placed in either category. However, “torts generally specify acts that one has prima facie reasons not to commit.”10 Once the Restatement takes a broad view of the intent required to commit battery—an intent to contact—adding to the elements the absence of real or socially implied consent seems consistent with an admonition to draw elements in a way that proscribed conduct be wrongful. However, another route to bar only socially-undesirable contact would be to define the intent requirement more narrowly. If battery law proscribes harmful or offensive contact that is intended to be so, consent could be assigned to the defense side of the ledger.

With two viable definitions of the battery elements, Goudkamp’s thoughtful discussion of rationales for not locating all issues into the elements category is of real use. For example, it would be inefficient to require a plaintiff to anticipate and disprove, at the outset of a case, multiple defenses that might never be pleaded. In addition, the placement of an issue as a tort element or defense is “one way in which the law gives expression to the relative strength of the parties’ interests. By assigning an issue to the ‘tort’ element category, the law gives greater weight to the defendant’s interests…”11 In the case of the Restatement, a shift of the consent issue to the plaintiff’s prima facie case is likely to place a greater burden on plaintiffs with respect to the matter. Moreover, as Goudkamp counsels, the choice of placement has moral significance.12 It affects the substantive entitlement. If plaintiffs have to prove lack of consent in sexual battery cases, consent is being presumed implicitly. In addition, the litigation pressures on victims from shifting focus away from defendants’ intent toward plaintiffs’ consent, have been criticized in criminal law battery litigation.

But Goudkamp does not take a direct position on the most useful way to treat consent—as an element or a defense. Indeed, he discusses significant doctrinal ambiguity on the issue in the common law world.13 Still, his thoughtful discussion of the various doctrines in common law jurisdictions, and his outline of rationales for classifying issues as defenses rather than elements, provides important insight for the conversation. Even if the audience for Goudkamp’s weighty analysis is small, one can only hope that his work begins a larger discussion of defenses based on justification and public policy throughout the common law world.

  1. PP. 8-9. []
  2. P. 7. []
  3. P. 27. []
  4. P. 104. []
  5. PP. 164-92. []
  6. P. 6. []
  7. PP. 191-98. []
  8. Restatement of the Law (Second): Torts § 13. []
  9. P. 34. []
  10. P. 44. []
  11. P. 38. []
  12. P. 42. []
  13. P. 65. []
Cite as: Ellen Bublick, In Defense, JOTWELL (August 6, 2014) (reviewing James Goudkamp, Tort Law Defences (2013)),

  1. 1
    On August 6, 2014 at 10:48 am, Richard Wright said:

    Although the Restatement Second, unlike the first Restatement, does not explicitly include lack of consent in its blackletter definitions of the prima facie case for trespasses to the person (battery, assault, and false imprisonment), that requirement is buried in the comments and is regularly required by the courts. Comment d to section 13, on harmful batteries, is the most explicit. It introduces the lack-of-consent requirement as supposedly being implicit in the “subject to liability” language in the blackletter of section 13. The comments to section 18, on offensive batteries, merely refer to “unpermitted” touchings and to the effect of consent in precluding liability, without stating whether the consent issue arises as part of the prima facie case or as a defense. One must happen upon comment d to section 13, on harmful batteries, for an explicit statement that lack of consent is part of the prima facie case for an offensive battery, which the plaintiff must allege and prove. Comment c to section 10, on privilege, notes that lack of consent is part of the prima facie case for “invasions of the interests of personality.”

    As for assault, comment e to § 21 discusses the definition in § 10 of the word “privilege,” which does not appear in the blackletter of § 21, and of consent as a type of privilege. The curious or baffled reader might turn to § 10 and learn from its comment c that the plaintiff bears the burden of proving lack of consent for intentional torts involving “invasions of the interests of personality,” which the reader might realize include actions for assault as well as battery and false imprisonment. For an explicit statement, the reader would have to discover § 13 comment d, on harmful batteries.

  2. 2
    On August 7, 2014 at 2:16 am, Ellen Bublick said:

    Great points Richard. There is much ambiguity in the Restatement Second draft, and you could say that consent is not a defense there, but rather an element. Two thoughts though:

    First, as you note, comment d to section 13 says that consent is part of the “subject to liability” condition. The Reporter’s Notes then say:
    “This Section has been changed from the first Restatement, in order to conform to the style of later Sections, in which the actor is stated to be ‘subject to liability,’ without spelling out in each Section the necessity of legal cause or the possibilities of defenses. No change in substance is intended.”
    Given that causation and defenses are the main category of the “subject to liability” clause, consent could be considered a defense. Second, Goudkamp does not define elements or defenses based on which party has the burden of proof, so if you take his view, which I do, plaintiff’s burden is not dispositive either.

    Even if consent is considered an element in the Restatement Second, absent blackletter concerning it, there is a key difference in focus of the elements in the two Restatements. The Restatement Second focuses mainly on the defendant’s intent to harm or offend (to which intent to engage in unconsented contact would be key in many cases), while the proposed Restatement Third focuses more directly on plaintiff consent. This distinction is significant, and one that is worth discussing as the Restatement project moves forward.