Oapa and Consent

Thirteen year-old Tom had recently been playing football and kicked his ball over a fence into his neighbour’s garden. Tom’s neighbour was a cantankerous 70 year-old called Stan who confiscated the ball when he saw it land on his pristine lawn. As a result of this incident Tom decided to play a practical joke on Stan by posting letters through Stan’s letterbox each day on his way to school. Inside the letters were the words: ‘You’ll pay for what you have done old man.’ As a result of receiving these letters every day for a month Stan became scared to leave his house and was diagnosed by his doctor as suffering from depression.

To celebrate the success of his ‘joke’ on Stan, Tom decided to get a tattoo of the words ‘I’m the man’ on his upper arm. Tom knew that licensed tattoo parlours would not tattoo him because he was under 18 years-of-age. He decided to ask his older friend, Robert, to do the tattoo because he had been working for 3 months as a trainee tattoo artist.

In order to give Tom his tattoo Robert took equipment from his work as he left at the end of his day. However, because he was borrowing the equipment without his employer’s permission Tom was not able to sterilise the equipment prior to taking it. Robert has had extensive training on the importance of properly sterilising equipment prior to using it in order to minimise the risk of transmitting blood-borne diseases. Robert completes Tom’s tattoo and returns the borrowed equipment to his employer the next day. He is later shocked to learn that Tom has contracted hepatitis C as a result of the tattoo.

Consider the liability of Tom and Robert, if any, for offences against the person. In your answer you should consider:

a. Tom’s liability for sending the letters to Stan and causing his depression;
b. Robert’s liability for tattooing Tom and causing him to contract Hepatitis C; and,
c. the effect, if any, that Tom’s consent to the tattoo will have on Robert’s liability.

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