Peter Libman's Small Claims Court Class Mock Trial AssignmentEdit


1) Did the defendant have a duty to inform the plaintiff of his karate training?
2) Does the illegal conduct of the plaintiff preclude the awarding of damages? (ie. Does the doctrine of ex turpi causa non oritur actio apply in this case?)
3) Did the plaintiff voluntarily enter into a fight, and in so doing consent to injury? (ie. Does the doctrine of volenti apply?)


s.175 CAUSING A DISTURBANCE (1) Every one who (a) not being in a dwelling-house, causes a disturbance in or near a public place, (i) by fighting, screaming, shouting, swearing, singing or using insulting or obscene language… is guilty of an offence punishable on summary conviction.
s. 266 ASSAULT Every one who commits an assault is guilty of (a) an indictable offence and liable to imprisonment for a term not exceeding five years; or (b) an offence punishable on summary conviction.
(as a reference) :s. 265 definition of ASSAULT (1) a person commits an assault when (a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly…


In law, provocation is NOT a defence to the use of force. (p. 253, "Critical Concepts of Canadian Business Law") It can, however, be taken into consideration in mitigating damages.

Assault is threatening another with violence, with the ability to carry out the threat causing fear in the victim.
Battery is the least touching of another without consent and the intention to cause harm.
Self-defense is a complete defence to assault and battery.


Your theory of the case and cause of action is put to the judge right at the start.

Theory of the case: the cause of action or the defence, and the evidence that supports that cause of action or defence- also known as “the theory” (Legal Research: Step by Step, p. 278)

Hi everyone, I was thinking that maybe having the doctor as an expert witness might be a better idea. The only reason being is that we are not fighting to prove that he was injured but rather that the extent of his injuries. I believe that our focus should be proving that he deserves the money that we are fighting for. Let me know what you think

The only problem with that is that under self-defense for Torts, it states that extent of injuries may not prove that unreasonable force was used. . We will already have the medical reports, x-rays and photos of the injury. I think we need the witness from the parking lot to prove that the break to the jaw was more than reasonable force necessary to defend himself since the witness can say that the first kick already had the plaintiff "doubled-over." What does everyone else think?

All we have to do during our cross examination of the defense is to place him at the scene and that our client picked a fight with him. He responded to our clients provocation. Then during our cross examination we start questioning him about his brown belt in karate.That will prove that he had the capabilities and strength to break his jaw.

If we use the eye witness all that person is going to say is "yes, the defendant hit the Plaintiff hard but the plaintiff started it". Which is great but it does not explain the extent of our clients injuries.

Our witness is going to be examined in chief and cross examined. The examination in chief is going to give us the opportunity to explain what the pictures are. In the defense's cross examination they are going to want to authenticate the picture/xrays.How are we going to do that if we do not have someone there who can describe the pictures and connect the issues before the court? That evidence test today helped me to understand that..... Photographic evidence is admissible if: a) it accurately represents the facts, b) it is VERIFIABLE by a person capable of doing so, and c) is not misleading or unfair

Unfortunately I don't think they will be admissable if we do not have an expert witness to verify what they are and who took them. The same goes for all the documents. A document must be authenticated by either: a) calling the writer as a witness b) calling a witness to the documents preparation c) calling a handwriting expert. If we have the doctor there he can do both.

This assignment is more difficult because we are only allowed one witness.

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