Defence Flashcards
What does the defendant must establish in order to invoke the defence of self-degence?
- He honestly and reasonably believed that an assault was imminent and
- The amount of force used to avert the risk was reasonable in the circumstances.
What is the rule in Wackett v. Calder?
You need to look if there is reasonable force involve.
Most courts allow a bystander to use reasonable force to protect a stranger from attack.
What happened in Gambriell v. Caparelli?
Facts : fight between a neighbour and a son. G is choking C. After a few fists, Mom of C grab a tool, and struck G with the tool. He suffered an injury.
Her defence of a family member was proportionate. Defence of third parties is a defence at common law, if the opposing force is reasonable in the circumstance, which was the case here.
Common law allows a person to use “reasonable force” to defend a member of his own familiy against attack.
What happens if a third party intervene in a fight?
The intervenor « steps into the shoes » of the person for whom he is intervening.
If the person whom he is defending did not have the right to use force, then the defender does not either.
Do the property owner can use force against someone?
YES, but 2 elements to keep in mind :
1. He can use as much force as necessary to protect the property
2. He must first make a verbal demand, unless it is clear a request to stop would be useless.
Can a property owner use deadly force to protect his property?
NO :
Property owner does not have the right to use deadly force to protect property even if deadly force is the only thing that will protect the property.
Property owner can use deadly force if he reasonably believes that the intruder will cause death or serious bodily harm once on the premises.
Who have the burden of proof in the case of a contributory negligence?
the defendant
What is the last clear chance doctrine?
The last clear chance doctrine provides that if the defendant had the last clear chance to avoid the accident (and the plaintiff did not), then the defendant’s failure to prevent it erases the plaintiff’s contributory negligence.
What is the conclusion in the case Walls v. Mussens? (the fire in the gas station)
Nothing can be attributed to the plaintiff (no contributory negligence).there is no portion of the responsibility for starting the fire that can be attribute to the plaintiff. Based on the agony of the moment rule, he didn’t participate in the negligence of the defendant.
It might well have appeared to an ordinarily prudent man in the emergency with which the plaintiff was confronted that shoveling snow on the fire was the most effective way to extinguish it
What is the conclusion in Gagon v. Beaulieu (car accident, no seatbelt worn)
The plaintiff contributed by his negligence to the accident and the situation would have been way better if he had worn the seatbelt.
The fact that he doesn’t believe that seat belt work is something that the court doesn’t care (it’s an objective test).
What are the 2 forms of contributory negligence?
- Plaintiff carelessly enters into a dangerous situation, thus contributing to the accident.
- Plaintiff acts in such a way that his carelessness contributes not to the accident, but makes the injuries worse.
What is the rule in Mortimer v. Cameron (wall breaks and students that fall to ground)
Rule : Act that gave rise to contributory negligence has to be within the realm of reasonable foreseeability
What are the 3 exceptions to express assumption?
Express assumptions of the risk are not enforced where
1. The party intentionally causes harm
2. The bargaining power of the defendant is grossly disproportionate to that of the plaintiff. Where the plaintiff is in a much better position to assume thing than the defendant. Caution: applies only where the service is essential.
3. Where some public policy makes it desirable to deny enforcement.
