C1 Defenses

Question 1

Contributory negligence

Answer 1

• NO DEFENSE to trespass and intentional torts like assault or battery
• Trespass cannot include negligent acts (Letang v Cooper)
• Co-operative Group v Pritchard (2012) manager punched employee (battery), manager claimed he was provoked (claim rejected)

Question 2

Use of force

Answer 2

• Lawful use of force can be a defense
• Person who is falsely imprisoned may use reasonable force to free themselves (Rowe v Hawkins (1885))
• D can use reasonable force to prevent a crime or to make a lawful arrest (Criminal Law Act 1967, s3)
• Reasonable force for self defense (which is not disproportionate unless it is a householder case then it’s grossly disproportionate)
• A mistake must at least be reasonable as well as honest if D were to plead self-defense (Ashley v Chief Constable of Sussex Police (2008))
• Lords Scott, Rodger and Neuberger disagree
• Mistake is no defense to false imprisonment (R v Governor of Brockhill Prison, ex p Evans (No. 2) (2001))
• False imprisonment is a form of trespass
• Still battery to hit someone in mistaken self-defense even if it was honest and reasonable

Question 3

Illegality

Answer 3

• Tortious defense
• Just because a person is acting illegally it does not mean that anyone else can harm them with impunity

Revill v Newbery(1996)

• C (burglar) broke into shed
• D waited in shed and fired shotgun through a hole in the door to scare him but injured him instead
• Disproportionate response
• Sued in negligence
• D found negligent but damages reduced for burglar’s own contributory negligence

Hounga v Allen (2014)

• Domestic helper was physically and emotionally abused
• No defense to say she had entered country illegally
• Employers arranged her illegal entry

Cross v Kirkby (2000)

• C was a hunt protestor who was trespassing on D’s land
• D ejected C’s partner
• C became angry and attacked D with a baseball bat
• D struck C
• Court said C’s illegality would provide D with full defense

Question 4

Duress

Answer 4

• Old case Gilbert v Stone held duress by threats is no defense in tort but it is a defense in criminal law
• No good reason to deny existence in tort

Question 5

Lesser evil necessity

Answer 5

• There might be a defense if trespass against another person avoids something even worse

Re A (Conjoined twins) (2001)

• Without surgical separation both would die
• With separation the weaker twin would die
• Hospital sought declaration that separation would be lawful
• Twins too young to consent
• Parents resisted surgery on religious grounds
• Surgery would be battery or even murder
• Declaration given (court has inherent jurisdiction to decide what is in the best interest of children and so override refusals of parental consent)
• Stronger twin survived

Brooke LJ test of lesser evil necessity:

(1) The act is needed to avoid inevitable and irreparable evil
(2) No more should be done than is reasonably necessary for the purpose to be achieved
(3) The evil inflicted must not be disproportionate to the evil avoided
- A life in exchange for a life?
- Robin Hood predicament
- Judges would be able to decide what is evil according to their personal moral compass