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Gambriell v Caparelli (1974), 54 DLR (3d) 661 (Ont Co Ct)


C’s son was attacked by G. G was restraining and choking him when C (mother) discovered the assault. She grabbed the nearest object (garden tool) and struck G with it until he started bleeding and stopped choking C’s son. This resulted in serious injury, so G sued C for battery


Can C’s claim that she was defending her son count as a defence?


Defence of third parties is a defence at common law, if the opposing force is reasonable in the circumstances.


Force must be proportional and reasonable: Necessity of the intervention AND reasonableness of the force employed is for the trier of fact to decide

Carter J:
** Where the person is intervening to rescue another and holds an honest, though possibly mistaken, belief that the person is in imminent danger, they can use reasonable force to accomplish the rescue.
** Although C used a dangerous weapon, C was a much weaker party an G, so her use of force was reasonable in the circumstances. G only received lacerations, not a fractured skull, which indicates the limited amount of force use. C’s son was backing away and G kept going after him when he could have just desisted.
** Plaintiff was author of his own misfortune

Defence of third parties is a defence at common law, if the opposing force is reasonable in the circumstances
** “where a person in intervening to rescue another holds an honest though mistaken) belief that the other person is in imminent danger of injury, he is justified in using force, provided that such force is reasonable; and the necessity for intervention and the reasonableness of the force employed are questions to be decided by the trier of fact”


Decision in favour of C; no battery because C was defending a third party

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