“Consent” and Trespass to the Person: Denial of Liability or Defence?’

The question of whether consent is a defence to battery or whether the absence of consentis 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 samequestion is equally raised by other trespass claims. Yet, how consent is classified (ie as adefence 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 oftheoretical interest, thereby raising fundamental taxonomic questions. The primary aim ofthis article is to tease out the underlying conceptual, theoretical and practical issues thatcontribute to the ongoing uncertainties as to who bears the burden of proving, and thecorrect classification of, consent (or the absence of consent).