Where the issue is whether the defendant can invoke the defence of self

defence, it is indeed required that his belief in the necessity of the

force applied is not just honestly held but reasonably held. This was

recently also clarified as the law in England: see Ashley v Chief

Constable of Sussex Police [2008] UKHL 25.

However, this rule is predicated on the fact that liability for the

intentional torts is strict. There is no inconsistency. If we could only

be liable for trespass to the person where we are negligent, there would

not have been a prima facie tort in  Courvoisier v. Raymond or Crabtree v.

Dawson requiring the invocation of a defence.

The law is quite clear.

If without permission I deliberately kiss another, destroy someone else’s

car, publish a statement about another which is defamatory, block the

public highway or walk on someone else’s land I am prima facie a

tortfeasor. I am liable even if I was wholly without fault. If I

reasonably but mistakenly believe that I had permission to kiss, that the

car was mine, that the statement was true,  that I had statutory

authorisation to block the road or that I had a right of way over the land

I crossed, I am still a wrongdoer. It is unnecessary to show the intention

to cause harm, or commit a wrong. My acting with the intention of

exercising a liberty which I did not have with respect to the claimant

suffices.

See the House of Lords decision Governor of Brockhill Prison, ex p. Evans

(No 2) [2001] 2 AC 19 for a nice illustration.

RS

>  On behalf of Steve Sugarman:

>

> Where there is a battery claim and the defendant asserts self-defense

> but there was a reasonable mistake by the defendant (who thus injured an

> innocent party), the defendant wins according to the ALI Restatement and

> some old cases.

>

> See Section 63 Restatement of Torts (Second) (1965), especially comment h,

> illustration 7. The leading cases on this point are Courvoisier v.

> Raymond, 23 Colo. 113, 47 P. 284 (1896) and Crabtree v. Dawson, 119 Ky.

> 148, 83 S.W.

> 557 (1904). In the Reporter's Notes, Prosser wonders whether the defendant

> ought not bear the costs of his mistake.

>

> In my very long article on the "necessity" defense (in which I attack

> the VINCENT decision and the Restatement's endorsement of it), I use the

> rejection of "strict liability" by the Restatement and these cases for

> what could be termed trespass to the person as an example of how US law

> seems inconsistent.

>

> Steve Sugarman

>

>

>

> --

> Jason Neyers

> Associate Professor of Law &

> Cassels Brock LLP Faculty Fellow in Contract Law

> Faculty of Law

> University of Western Ontario

> N6A 3K7

> (519) 661-2111 x. 88435

>

--

Robert Stevens

Professor of Commercial Law

University College London