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2 Found helpful • 8 Pages • Essays / Projects • Year: Pre-2021
In recent decades, the significance of personal autonomy increased in Australia, which required the law and legal system to face more complex reality. In R v Brown, the Court held that consent cannot form the basis of a defence to assault occasioning actual bodily harm unless the courts have recognised an exception to that rule. 1 Since society has moved on from the 1990s understanding between informed consent and bodily harm, the principle from Brown has been challenged by the trend of body modification, dangerous sporting events and performances. Although someone still believes that harm with consent should not be tolerated by the society, Professor Glanville Williams highlighted the root of this problem stating that “cases in which the moral indignation of the judge is aroused frequently make bad law”. 2 This essay will argue that the law in NSW should be amended to permit the causing of actual or grievous bodily harm if the ‘victim’ gives informed consent and the activity is not undertaken negligently for two reasons. Firstly, the law should reflect changing social attitudes towards issues surrounding consent to bodily harm in some circumstances. Secondly, the current law fails to make clear criteria of the crime of assault, which leads to undermining certainty and predictability of law. In the last part, this essay will compare two approaches of this amendment to clarify the key points of this reform
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