Law 12
Tort Law
Ms. Ripley 1
Defences for Trespass (All About Law, p.364-368)
People who commit intentional torts may not be liable if they have a legal defence for
their actions. Once the plaintiff has established that the defendant has committed a
trespass, the defendant has a number of defences that might explain the trespass.
The most common defences are
• consent
• self-defence
• defence of others or property
• legal authority
• necessity
A defendant may use more than one defence in the same lawsuit.
Consent
Consent is the defence most often used in cases involving trespass to the person,
especially battery. This defence must be established by the defendant. A defendant
who can show that the plaintiff willingly consented to the action is excused from
liability for any injury that results. Suppose a group of teenagers play a friendly
neighbourhood game of football. During a tackle, Felix is injured, and his arm is
broken. Felix will not succeed if he sues for damages because he voluntarily agreed
to play, and no anger was displayed during the game. Also, he consented while
being aware of the possible risks of the game. This defence is similar to the defence
for negligence of voluntary assumption of risk.
Recently, court cases involving separate issues-contact sports and medical
treatment-have tried to resolve the extent to which consent applies. Courts assume
that players who participate in certain contact sports have consented to the bodily
contact permitted by the rules of the sport. A football player expects to get tackled, a
boxer punched, a hockey player checked, and so on. Bodychecking is considered a
normal or reasonable part of a hockey game. However, if Robin deliberately slashes
Michelle's face with her hockey stick, she is using excessive force and is committing
an intentional tort. Michelle could succeed in a tort action, and a criminal charge
could also be laid against Robin, the overly aggressive player. (See Issue, page
312.)
As discussed earlier, a doctor who treats a patient without consent is com mitting
battery. An exception is if a doctor provides emergency treatment for an unconscious
patient, and the treatment is limited to only what is necessary to protect the patient's
life.
Self-Defence
Self-defence is a valid defence as long as the force used is not excess ive and it is
reasonable and necessary in the circumstances to prevent personal injury. What is
reasonable and necessary depends on the facts of each case. Suppose Julian
claims he was defending himself against Scott. Julian must convince the court that
he genuinely feared being injured by Scott, and that Scott was struck in self protection against the threat. The burden of proof rests with Julian: he must prove
that his actions were necessary to prevent the attack and that excessive force was
not used. Self-defence may even be used as a successful defence if Julian struck
the first blow. Julian must convince the court that striking out was the only means of
self-protection.
Provocation, as possible defence for murder, is not a defence for an intentional tort. If
Petra hits Bill for provoking or annoying her to the point where she loses her temper,
she has no legal defence. She may be held liable for any injury she causes Bill. But,
provocation may reduce the damages that the defendant must pay.
Defence of Others
Law 12
Tort Law
Ms. Ripley 2
A third party can come to the aid of a person if it is reasonable to assume that the
person is in some degree of immediate danger. This defence occurs most often when a
parent comes to the assistance of a child or close relative, or one spouse defends the
other. The same principles apply to this defence as to the defence of self-defence.
Defence of Property
Property owners may use reasonable force to eject intruders from their property. The
owner must first ask the trespasser to leave. If the request is ignored, then a reasonable
amount of force may be used to expel the intruder. However, if the trespasser made a
forcible entry onto the property, no request to leave is necessary before force can be
used. Again, the amount of force used must be reasonable. The property owner cannot
set a deadly or dangerous trap to harm trespassers.
Legal Authority
In limited situations, certain individuals, such as law enforcement officers, have the
legal authority to do what could otherwise result in legal actions for assault and battery
or false imprisonment. For example, the police can detain individuals in the course of a
valid arrest. Many civil actions against officers have been decided in their favour
because they were carrying out a legal duty to arrest suspects in a criminal case. Store
detectives likewise have the legal authority to arrest shoplifters, but they have no higher
rights of arrest than a private citizen.
Police officers with a search warrant can use legal authority as a defence if someone
claims that the officers have trespassed on the plaintiff's property. Prior to entry, except
in an emergency, the officers should identify themselves; show the search warrant, and
request entry to the premises. An unexpected arrival on a person's property could lead
to serious misunderstanding and possible injury. The personal safety of both the
homeowner and the police are at stake.
By law, certain industries are given the legal right to emit a reasonable amount of
smoke, noise, and effluent (liquid waste) without being liable. Similar regulations apply
to aircraft and vehicles with sirens. In passing such legislation, the government attempts
to balance the right of society to enjoy land against the need of industry to generate
pollution in the course of providing products and services. However, if a business
exceeds the level considered reasonable in law, a nuisance action may be brought
against it.
Necessity
Necessity is also a defence against trespass. A defendant is excused from liability for
trespass to land if the action is strictly necessary. The necessity to use another's
property may arise unexpectedly, as when a sudden storm forces boaters to seek safety
on nearby land. Although the boaters are trespassing by being on the land without
permission, their defence of necessity would likely succeed. But if they caused damage
while on the property, they could be held liable for any losses. A person trespassing on
another's property to reclaim goods that rightfully belong to him or her could also argue
that the action was necessary.
Review Your Understanding
1. Identify six defences for trespass.
2. When is consent not a valid defence in a contact sport?
3. When is self-defence a valid defence against battery?
4. When may defence of another person be used?
5. Who may use the defence of legal authority, and in what situations?
6. Explain necessity as a defence against trespass to land.