Tort Law

IV DEFENCES RELATED TO THE PROTECTION OF PERSON AND PROPERTY

1. Self Defence
Onus on defendant to est. on bop that:
i) he reasonably beleieved that he was about to be attacked
ii)the amount of force used was reasonable in hte circumstances
a) must retreeat if ness
b) includes honest, but mistaken belief that threat exists (objective reasonable                  person test)
c) not liable for nonnegligent injuries to innocent persons who get in the way, but              cannot use another to protect yourself
d) relevant factors are immediacy of harm, relative size, harm to be prevented and         urgency of sit’n - Right to invoke defense ceases as soon as danger passes
iii)force used must be reasonable and not excessive - distinguish btwn amnt of force              (under Ds control) and result of force (not under Ds control) not req to measure blows        w/ legal nicety

Wackett v Calder[1965](BC CA)- question as to whether the blows by appellant were more than was reasonably necessary, find that they were not. Dissent on the point that appeallant should have and could have walked away

2. Defence of Third Parties
Defence may be raised by anyone as long as intervention is necessary
same requirements as self defence

Gambriell v Caparelli[1974}(ON Co Ct)-mother able to raise this defence after striking P several times while under mistaken apprehension that he was harming her son, force used determined to be reasonable in circumstances

3. Discipline
defence can be invoked by parents and guardians to privelege the use of force in dealing w/ children (Criminal Code s 43 authorises use of force "by way of corrction"  therefore it is a justification)
Requirements:
1. force must be for corective purposes
2. force used must be reasonable under the circumstances (both objectively and                subjectively) use of social standards rather than those of the accused
3. educators are granted broad authority under defence, but cannot be used to discipline         the mentally ill
R v Dupperon[1984](Sask CA)- held that while strapping of thirteen year old son was done for corrective purposes only, force used was unreasonable, esp w/ regard to empotionally disturbed state of boy

5. Public and Private Necessity
- Arises in situations of great and imminent danger to life / property that can be averted        by P’s lesser inerests- is defendant privelaged to invade P’s ppty & if so who             should pay for losses?
- onus to prove necessity rests upon defendant
- Distinguishable from self defence b/c tort is committed against innocent pty not             aggressor, from negligence b/c reasonable means must be taken to protect other                interest and form duress b/c of mental element fear of imminent harm

a) PUBLIC NECESSITY
Alows the intentional invasion of the property rights of another in order to save lives or to protect the public interest from external force (usually threats of nature, reason defence could not be invoked in London Bourough of Southwark v Williams)
Complete defense no compensation is payable
Elements:1. honest and reasonable belief in necessity of action (mistaken belief will                   suffice)
2. must be proportionality btwn harm incurred to innocent persons interest                     and public benefit (no unnessesary damage)
3. defence restircted to property interests (failure in R v Dudley and Stephens)
4. an individual who negligently caused or contributed to emergency sit’n will               not be allowed to benefit from defence
Surrocco v Geary[1853](Cal SC) “individual rights of ppty give way to the higher laws of impending necessity” blowing up of Ps house necessary in order ot prevent spred of fire, house would’ve been consumed by fire anyway, losses not recoverable.

b) PRIVATE NECESSITY
Defence arises when emergency causes invasion of Ps interests for the benefit of a private individual
Partial defence only, may only intrude w/ no liabilty where no damage is casued, compensation will be ordered for any harm caused
Resistance to excersice of necessity is culpable
Law will order restitution where benifit is gained at anothers expense

Vincent v Lake Erie Tpt. CO.[1910](Minnesota SC)-shipowner was right in helping himself to to use of dockowners ppty during a storm, thus invoking defence of necessity to charge of tresspass to the dock - were liable for compensatory damages to be paid to dock owner (excused from fault but held liable for losses)

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