Defences To Intentional Torts Flashcards
What are the 6 defences?
1) defence of the person or property
2) contributory negligence
3) Consent
4) necessity
5) children
6) mental illness
Define inevitable accident
Different from a mistake and is available as a defence
Two elements:
- the d did not INTEND to act in such a manner
- the act could not have been avoided by taking duty of care
Defence of the person or property:
In civil cases who bares the onus of proof that their actions were a reasonable response to the ro the reasonable belief that their life was in danger or they would be seriously injured otherwise
The defendant ( Pearce v Hallet)
S52 of CLA “reasonable response in the circumstances as he or she perceives them”
Requires additional factors of self defence:
1) D may use such force as is necessary to protect him or herself where he or she reasonably has no other option to them ie REASONABLE FOR THE TO DEFEND HIMSELF OR HERSELF
2) reasonably belief in risk of death or serious bodily harm IE REASONABLE FOR THE DEFENDANT TO DEFEND THEMSELVES
Two cases of self defence:
Fontin v Katapodis
Argument in shop over failure to pay account. P hit d with a wooden t square once Ina rm and once in shoulder, d retaliated with glass thre it at ps face with injury
Held: d could have stepped aside, glass was somewhat a deathly weapon
Hall v Foncea
D required to prove that there was an intention on the part of the plaintiff either to use force or to create in the defendant an apprehension of immediate physical contact
Use of the CLA Part 7: self defence and recovery by criminals
No liability for conduct arising out of self defence, but only of the cond
