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Larin v Goshen (1974), 56 DLR (3d) 719 (NS CA)


L was a referee and judge of a wrestling match; awarded match to unpopular side. Crowd threw objects into the ring, L was struck and injured. As L left, he covered his face to avoid thrown objects. On his way, L pushed G, who was a spectator. G fell and fractured his wrist.

At Trial: Court allowed G to change action from assault to battery (trespass to the person).
** “injury caused by the appellant who directly either intentionally or negligently cause the physical contact with the person of the plaintiff without the plaintiff’s consent.”
**L did not push G with malice or intention, but with negligence
**L did not take care to avoid striking people, since he had his arm in front of his face


Is negligence sufficient to meet the intent requirement of battery?


In an action for damages in trespass: where the plaintiff proves that he has been injured by the direct act of the defendant, the onus falls upon the defendant to prove that his act was both unintentional and without negligence on his part, in order for him to be entitled to a dismissal of the action.
** Behaviour has to be looked at in all the circumstances (emergency)


The Court of Appeal disagreed with trial judge.
** Negligence is a relative term that must consider all the circumstances of the case (it is based on what a reasonable person would do in that particular situation)
** L was in a position of danger, police had to fend people off
** L was not negligent, therefore negligence did not cause G’s injuries


Appeal allowed with costs (in favour of L).

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