New Boundaries in the Tort of Negligence

[liadnan]

Reasonable Care... (not sure if the link is permanent)

The plaintiff's complaint sought recovery for serious physical injury suffered during consensual sexual intercourse with the defendant. The motion judge concluded that the ordinary negligence standard was inapplicable to personal injury resulting from consensual sexual intercourse and, applying a heightened standard of recklessness, found that the defendant was entitled to summary judgment.

(Via Ogged on Unfogged via Volokh writing on that Huffington thing).

As Volokh points out, it's not, legally speaking, that outlandish a plea when you think about it. Why not general standards of reasonable care when having sex? But thank Christ they found a way to chuck it out. I haven't read it in full but am rather surprised the words volenti non fit injuria don't appear.

Comments

[(Anonymous)]

Latin isn't a prerequisite for law school over here (which is probably why it doesn't appear). What's the translation?
-Bunty

[liadnan]

Not over here either, but one of those tags that stick, in law school at least. The proposition that if you consent to a risk (or at least, something with an implicit risk) you can't complain if injury follows. Very broadly put.

[ananas2003.livejournal.com]

Looks like a much neater solution than assuming a standard of reasonable care and setting it low enough that the defendant didn't breach it. Can't blame the courts for not wanting to have to deal with more of this sort of thing. You also have to wonder what prompted the plaintiff to sue in the first place - maybe his insurer was behind it?

On the topic of sex, consent and injury, I couldn't help but think of R v Brown (http://www.clea.org.uk/cases/ftext/Laskey.htm)

That one popped up in my Australian degree, even though it's an English case. Probably there isn't an Australian equivalent, presumably cases involving genuine consent rarely make it to court because there's nobody to make a complaint.

[liadnan]

Oh I dunno. Was being slightly flippant about volenti: I'm not sure it's really true that by having sex you accept the risk of a penile fracture, whereas it probably is fair to say "well, a reasonable standard of care in all the circumstances" when the circumstances include being in the throes of passion, should be a fair,ly high bar.

Brown.. always comes up in law school. Bit of prurient amusement for the students. Criminal law of course, and really about the criminal law of personal injury. Not one of the Lords finer moments, and I doubt the same facts would have the same results now. Or even that the CPS would prosecute. Though it's worth remembering the ECHR backed the Lords when it went there (Jaggard & ors v UK)

[ananas2003.livejournal.com]

Nothing like a bit of prurient interest to help you remember a case, even years later.

Have you heard about the German Cannibal case (Armin Meiwes)? It's likely to land in front of the ECHR or ECJ eventually, as it throws up a few issues on the limits of consent. The defendant killed and ate his victim, but there's no doubt that the suicidal and masochistically inclined victim consented. The defendant was originally found guilty of manslaughter, not murder. Meanwhile the prosecution has successfully appealed and the case has been sent back to District Court level to be decided again.

[red11.livejournal.com]

"Shortly after taking this new position, the defendant landed awkwardly on the plaintiff, thereby causing him to suffer a penile fracture." I don't know whether to laugh or wince.

And were you quite straight-faced when you typed "motion judge" ?

[liadnan]

Both at once is the usual reaction.

I didn't notice that actually. Cut and pasted.

What happened with the auction~?

[red11.livejournal.com]

went for a lot more than we could pay. More than 50% over the guide price. Bah.

[liadnan]

Shame. Still, better that than a near miss. If you see what I mean.