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Defence of Property

Defence of Defence of Property in Tort Law

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Law and You > Law of Tort > Defence of Defence of Property in Tort Law

The word “Tort” is of a French origin which has been further derived from the Latin word “Tortum” meaning “to twist” and implies conduct which is tortious4or twisted. It is a species of civil injury or wrong. A tort is a wrongful act or an infringement of a right (other than under contract) leading to legal liability and for which civil courts award compensation. Section 2 of Limitation Act 163 defines it as ‘a civil wrong which is not exclusively the breach of contract or breach of trust’. For example, to stop or obstruct a person to perform his legal right is a tort. (Case Ashby v. White), In this article, we shall discuss the concept of tort and law of tort. In tort law, a defence is a legal justification or excuse that a defendant may raise to avoid liability for committing a tort (a wrongful act). These defences either negate the elements of the tort or justify the defendant’s actions under the circumstances. In this article, let us discuss defence of property as defence in tort law.

General Defences in Tort Law:

In tort law, several defences are available to a defendant who is being sued for a tort. These defences can either completely absolve liability or reduce the amount of damages. Here’s a list of common defences in tort:

  • Consent (Volenti Non Fit Injuria): If the plaintiff consented to the act that caused the harm, the defendant may not be liable. Consent can be express or implied.
  • Self-Defence: A defendant can avoid liability by proving that the tortious act was necessary to protect themselves from harm. The force used must be reasonable and proportionate to the threat.
  • Defence of Others: Similar to self-defence, a defendant may claim they acted to protect someone else from harm. Again, the force used must be reasonable.
  • Defence of Property: A person is allowed to use reasonable force to protect their property. However, the force must be proportional and not excessive.
  • Necessity: This defence applies when a tortious act was done to prevent greater harm to the defendant, others, or property. For example, trespassing to escape an imminent danger may be excused under necessity.
  • Statutory Authority: If the defendant was acting under statutory authority (i.e., following the law or legal procedures), they may be excused from liability, even if harm resulted.
  • Contributory Negligence: If the plaintiff’s own negligence contributed to their injury, they may be barred from recovering damages (in jurisdictions that still recognize contributory negligence as a complete defence).
  • Comparative Negligence: Similar to contributory negligence, but in this case, damages are apportioned based on the relative fault of the plaintiff and defendant. The plaintiff’s recovery may be reduced but not entirely barred.
  • Act of God (Force Majeure): A defendant may avoid liability if the harm was caused by an extraordinary natural event (such as a flood, earthquake, or storm) that was unforeseeable and unavoidable.
  • Inevitable Accident: This defence asserts that the incident causing harm was unavoidable, even with reasonable care, and therefore, the defendant should not be held liable.
  • Mistake: A defendant may argue that the tortious act was the result of a mistake, but this defence is generally weak unless the mistake was reasonable and unavoidable.
  • Private Defence: A person may defend themselves or their property against the wrongful acts of others, provided the defence is proportionate to the threat.
  • Duress: A defendant may claim they were forced to commit a tort due to the threat of harm, making their actions involuntary.
  • Illegality (Ex Turpi Causa Non Oritur Actio): If the plaintiff was involved in illegal activity at the time of the tort, the defendant might avoid liability on the basis that a claim cannot arise from the plaintiff’s wrongful conduct.
  • Limitation Period (Statute of Limitations): A claim in tort must be brought within a specified time period. If the plaintiff files the claim too late, the defendant can raise the limitation period as a defence.

Each of these defences has its own criteria and conditions, and their applicability depends on the jurisdiction and the specific circumstances of the case.

Defence of Others

Defence of Property:

Defence of property is a recognized defence in tort law that allows a defendant to justify using reasonable force to protect their property from being damaged, trespassed upon, or taken unlawfully. While individuals have the right to defend their property, the use of force must be proportionate to the threat posed, and excessive or unreasonable force may lead to liability for torts such as battery or assault.

Key Ingredients of Defence of Property:

  • Unlawful Interference with Property: The defendant must prove that their property was being unlawfully interfered with, such as through trespass, theft, or damage. The interference can be by a person entering the defendant’s land, taking their possessions, or threatening harm to the property. The defendant must have a legal right to the property they are defending.
  • Reasonable Use of Force: The defendant may only use reasonable force to defend their property. The force must be necessary to prevent or stop the unlawful interference and must be proportionate to the threat. For instance, if someone is trespassing on the defendant’s land without causing harm or posing a threat, using deadly force would be considered excessive and unjustified.
  • No Right to Use Deadly Force for Property: In general, deadly or seriously harmful force is not allowed in the defence of property alone. The law draws a clear line between the right to protect one’s property and the right to protect life or personal safety. Courts are reluctant to allow individuals to use extreme force, such as traps or firearms, merely to protect property from theft or trespass unless the person is also under threat of serious bodily harm.
  • Possession and Control: The defendant must be in possession or control of the property at the time of the alleged tortious act. This typically applies to homeowners defending their land or personal property owners defending their belongings.

Application of Defence of Property:

  • Trespass to Land: A person may use reasonable force to remove a trespasser from their land. However, the force must be proportionate to the circumstances. The property owner should first ask the trespasser to leave, and force should only be used if the request is ignored, and it is necessary to remove them. For example, if someone unlawfully enters A’s garden and refuses to leave, A may gently push the person off the property, but beating the trespasser would be considered excessive force.
  • Trespass to Goods: If someone unlawfully interferes with personal property (goods), the owner may use reasonable force to prevent the interference or recover the property. For example, if B attempts to steal A’s bicycle, A can physically stop B or take the bicycle back if doing so does not involve excessive force.
  • Necessity to Act Promptly: The use of force to defend property must be immediate. The defence of property cannot be used after the fact (i.e., once the interference or trespass has already occurred) unless the threat continues or the property needs immediate protection.

Limits to Defence of Property:

  • Proportionality: The force used must be proportionate to the threat. Disproportionate or excessive force will not be protected by the defence. For example, using a firearm against a petty thief would likely be considered excessive unless the defendant’s life was also in danger. Courts weigh the importance of property protection against the need to avoid harm to individuals.
  • No Use of Deadly Force: Deadly force is rarely justified solely for the protection of property. Courts are particularly strict about this rule when assessing traps or firearms set up to defend property. For example, a property owner cannot set lethal traps, such as spring guns or electric fences, to prevent burglary, as these pose serious harm and are not proportionate to the need to protect property.
  • Warning and Request to Leave: In most situations involving trespassers, the property owner is expected to first give a warning or request that the intruder leave before using force. Immediate force without a request to stop may be considered unreasonable if the circumstances did not require it.
  • Mistake: A mistake about the need to defend property, if unreasonable, may invalidate the defence. For example, if the defendant mistakenly believes someone is stealing their property but later it turns out the person had the right to be there, the defence may not apply.

Case Laws:

In Bird v. Holbrook 130 eng. Rep. 911 (C.P. 1825) case, where the defendant set up a spring gun in his garden to prevent trespassers from entering and damaging his property. The plaintiff, who entered the garden without knowing about the gun, was seriously injured. The court ruled that using such force was excessive and unjustified because it was disproportionate to the nature of the trespass and no warning had been given. The defendant could not rely on the defence of property.

Southwark LBC v. Williams, [1971] Ch 734 case involved squatters who entered a vacant property. Although they claimed necessity, the court held that necessity does not justify trespass to land. The case illustrates that the defence of property can often override other claims unless the situation is exceptional.

In Revill v. Newbery, [1996] 2 WLR 239 case, where an elderly man shot a burglar who was attempting to break into his shed. Although the man was defending his property, the court held that the use of a firearm was disproportionate to the threat posed by the burglar. As a result, the defendant was liable for the injuries caused to the burglar, despite the burglar’s unlawful conduct.

The defence of property allows individuals to use reasonable force to protect their property from unlawful interference, such as trespass or theft. However, the use of force must be proportionate to the threat, and deadly force is almost never justified unless the person’s life or safety is also in danger. Courts evaluate each case carefully to balance the right to defend property with the principle that human life and safety take precedence over property rights. Excessive or disproportionate force, particularly when deadly force is involved, can lead to liability despite the property owner’s intentions.

Conclusion:

The defence of property in tort law serves as a vital mechanism for individuals to protect their possessions while balancing the rights of others. This defence typically allows a property owner to take reasonable steps to prevent unauthorized entry or damage to their property.

In conclusion, the defence of property is generally justified when it aligns with principles of necessity and proportionality. It emphasizes the importance of personal and property rights while also imposing limits to prevent excessive force or actions that could infringe on others’ rights. Courts often evaluate the reasonableness of the response, taking into account the circumstances and the nature of the threat.

Ultimately, while the defence of property is an essential element of tort law, it must be applied with careful consideration to ensure that it does not lead to unjust outcomes or escalate conflicts unnecessarily. This balance fosters respect for individual rights and promotes peaceful coexistence within society.

Related Topics:

General Defences in Tort Law

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