Defences to Intentional Torts

Question 1

what defines an affirmative defence?

Answer 1

the defendant must plead them, and they provide a justification for the tort, as opposed to undermining the prima facie tort elements

Question 2

What are the 3 types of defences/privileges that justify a tort?

Answer 2

1. Those that attempt to justify the defendant’s conduct in response to the plaintiffs misconduct
2. The special case of consent
3. Privileges of public and private necessity, which are based on public policy as opposed to misconduct

Question 3

What is the most common defence for assault/battery?

Answer 3

self defence. the defendant must prove that they:
1. reasonably beloved that force was about to be used against them, and
2. they used no more force than was necessary to protect themselves

Question 4

Is provocation enough to justify self-defence?

Answer 4

generally no

Question 5

Can a property owner use force (a trap) to defend their house?

Answer 5

Generally no. (Briney shotgun spring trap case). Public policy places the value of human life and well being above the mere value of property

Question 6

Joe knows Johnny wants his shiny gold watch. Joe sets the watch on his nightstand with a trap that will electrocute anyone else who touches it. Is Joe justified in doing this?

Answer 6

No. The threat in this situation is only against Joe’s interest in the property. Policy dictates that human well-being will have a higher value than pure property interests.

Question 7

What if Johnny tries to rip the watch off of Joe’s wrist as he is wearing the watch?

Answer 7

In this case, Joe would probably have a better self-defence argument as his own personal safety is likely threatened by Johnny’s actions

Question 8

What is the shopkeeper’s privilege?

Answer 8

Is is a limited exception to self-defence which allows sellers to use force to restrain suspected thieves in order to recapture their stolen property. Depending on the jurisdiction, the shopkeeper only needs a reasonable suspicion to initiate a citizen’s arrest. They do not need to know for a fact that they were robbed.

Question 9

What is the defence of consent?

Answer 9

If physical contact was consented to, then there was no true harm/offence and thus the tort was never actually committed. The challenge is proving on the balance of probabilities that consent was actually given

Question 10

When is consent unavailable as a defence?

Answer 10

When there is a significant power imbalance between parties. Ex. prisoner and guard, doctor patient, and so on. Whenever one party has limited autonomy in the matter