Provocation as a Complete Defence to Trespass to the Person

Abstract

The basis on which the law of trespass to the person denies mitigation of compensatory damages is a purely philosophical position which can be described as high minded but impractical. The law is criticised in this article on a number of bases including the fact that the leading case, Fontin v Katapodis, established this position without revealing the judicial reasoning which was applied. The notion of a victim’s fundamental right not to be touched or threatened is criticised and an argument of implied consent by the provocateur is put, as also is an argument that a person’s actions can be so much a function of external influences that their blame ought to be reduced proportionally. Some policy considerations are also raised to justify a change in the law.