2. Related Issues: Mistake, Motive and Accident
a) MOTIVE- desire to bring about a certain result, not reason for wanting that result to occur, must establish blameworthy motive but not an element in COA,
i) DURESS- will negate neither volition nor intent, but will be a fcator in assesing damages Gilbert v Stone[1648](KB) D stole gelding under threat of armed men, but this did not relieve him of liabilty(would though have claim in assault)
ii) PROVOCATION- must be immediate and directed in such a manner as to cause the D to lose lose his power of self control through the enflaming of sudden and uncontrolled passions (Test one of reasonable person) Miska v Sivec[1959](Ont CA)-no defence in provocation as too much time elapsed between time D was threatned on the road, and the time he got home and fired a gun at P
- uesful in assesing damagages and can argue as constituting contributory negligence on part or P
b) MISTAKE- occurs when D intends consequences of his act, but these consequences have a diff’t factual or legal significane than that which was contemplated. Not a recognised defence per se
MISTAKE OF LAW - missapprehension as to illegality of act being carried out, Hodgkinson v Martin[1928](CA)- defendant believed he was justified at law in his actions Again, no defence but will come into play re assesment of damages
MISTAKE OF FACT- missunderstanding of an aspect or attribute about what sthg is, Ranson v Kitner[1888](Ill CA) D’d hunting for wolves, accidentally killed dog, liable for value of dog.
c) ACCIDENT- D unitientionally and w/o negligence injures P, distinguish form mitake on this point, no libilty in either intentioanl tort, or negligence
d) A NOTE ON THE LIABILTY OF CHILDREN AND THE MENTALLY ILL
- governed by same principles of liabilty as others, but courts have tended to frame issue as whether defndant appreciated nature and quality of act. No vicarious libilty for parents or guardians
4. Battery
DEFINITION: intentional infliction upon the body of another of a harmful or offensive contanct
ISSUE: can an intentional wrongdoer be liable for consequences which he did not intend? Yes. (Shall be no importation of forseeability into intentional torts) Bettel v Yim[1978](Ont Co Ct)- shopkeeper grabs and shakes child with w/ intention of bringing about harmful contact for the purpose of extracting a confession, in the course of action he he hit the plaintiff in the nose cuasing it to bleed.- In finding for P, court differentiates between intentional torts and negligence “…it is in the dignitary interest, the right of the P to insist that the D keep his hands to himself…if physical contact was intended, the fact that its magnitude exceeded all reasonable or expectations should make no difference.” TEST : WHETHER THE DEFENDANT WAS GUILTY OF DELIBERATE, INTENTIONAL AND UNLAWFUL VIOLENCE OR THREATS OF VIOLENCE. IF HE WAS AND A MORE SERIOUS HARM BEFALLS THE PLAINTIFF THAN WAS INTENDED BY THE DEFENDANT, THE DEFENDANT, NOT THE INNOCENT PLAINTIFF MUST BEAR THE BURDEN OF RESPONSIBILITY.
Defenses: self defense, defense of 3rd party, defense of property,consent, capacity, ex turpi causa
5. Assault
DEFINITON: intentional creation in the mind of another of a reasonable apprehension of immediate physical contact (recent focus upon impression created in P’s mind) words alone not enough (unless create reasonable apprehension…) defendant must have means to effectuate threat
- damages for assault unaccompanied by battery tend to be small - if assault is prelude to battery may only be disscussed superficially
TEST: WHETHER AN OBJECTIVELY REASONABLE PERSON IN SAME SITUATION WOULD PERCIEVE THREAT OF IMMINENT HARMFUL CONTACT
Holcombe v Whitiker[1975](Ala SC)- words alone cannot constitute assault, but coupled w/ beating down door and trying to open it, they can: Question: whether accused has means to carry out threat, if yes: Assault.
Police v Greaves[1964](NZ CA)- threat against police officers investigating sit’n of domestic violence found to be real: charge of assault restored.
Defenses: consent, self defense, possibilty of provocation
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