Even in cases of intentional tort the defendant may escape liability as a result of a number of defences:

  • Consent – is very common in regard to an action in battery. If you and your friends agree to play road hockey and one of you is injured, the defendant may successfully argue that you consented to the contact. It is important to note, however, that the contact must be normal or incident to the nature of the activity – thus, intentionally spearing another player in the face would not be defendable on the basis of consent.
  • Self-Defence – one may commit a battery in order to protect them if the force is not excessive and it is reasonable in the circumstances to prevent personal injury. What is reasonable depends on the facts of each case. The person arguing self-defence has the burden of proving that their actions were reasonable. Note:  Provocation is not a defence to battery.
  • Defence of Others – one is able to defend others where it is reasonable to assume the other person is in some degree of immediate danger. Once again the force used must be reasonable given the factual situation.
  • Defence of Property – Property owners may use reasonable force to eject trespassers from their property (bouncers at a bar, for instance). To do so, the owner (or their employees or agents) must first ask the person to leave. In situations where the trespasser used force to enter the premises, no request to leave is necessary. Force used must be reasonable to the circumstances. (Bouncers who are too heavy handed run the risk of both criminal charges and a civil suit for battery.)
  • Legal Authority – in some situations certain individuals (police) have the legal authority take such actions that would otherwise be considered trespassing or battery (serving a search warrant or making an arrest). In addition, some industries have the legal right to emit a reasonable amount of pollution – air, sound or light without being held liable by neighbouring property owners for nuisance.  It is important to remember that the amount the emit must be reasonable and they run the risk of a civil action should their emissions climb too high.
  • Necessity – a defendant can successfully escape liability where they can show their actions were absolutely necessary. This would arise when a plane makes an emergency landing on a farmer’s field or where you enter land to retrieve property that is rightfully yours (this would not apply where you put your property on another person’s land with the sole objective to gain entry onto their property.
Types of Legal Evidence


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