Law and You > Law of Tort > Defence of Duress 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 duress in tort law.

Different 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.

Duress as a Defense in Tort Law

Duress is a legal doctrine that allows individuals to defend themselves from liability for acts committed under the compulsion of threats or force. Although duress is more commonly associated with contract law, where it renders a contract voidable if one party is coerced into agreeing, it also plays a significant role in tort law. When a person acts under duress, they may invoke this defence to argue that their wrongful conduct was not truly voluntary, but rather the result of external pressure, often involving threats of harm or violence. While duress is a recognized defence, it is narrowly defined, and its applicability in tort cases is carefully scrutinized.

In tort law, duress refers to a situation where a person is forced or coerced to commit a wrongful act, typically a tort, due to the threat of serious harm. The key element of duress is the lack of free will. The defendant argues that they would not have engaged in the tortious conduct but for the overwhelming and immediate threat of harm to themselves or others.

Duress, in this context, often involves situations where:

• The defendant faces an immediate threat of physical harm.
• The threat is such that a reasonable person would feel compelled to act.
• The defendant’s actions, though technically wrongful, are excused due to the circumstances.

For example, if someone is threatened with death or serious injury unless they commit a tort, such as trespass or conversion, they may raise duress as a defence. In these cases, the defendant claims that their conduct was involuntary because the pressure they faced left them no reasonable alternative.

Key Ingredients of Duress:

To successfully invoke duress as a defence in tort law, certain key elements must be established:

• Immediate Threat of Harm: The defendant must prove that they were subjected to an immediate and serious threat of harm. The harm could be physical, emotional, or financial, though physical harm is most commonly cited. The threat must be so severe that a reasonable person in the defendant’s position would feel compelled to act as they did.
• Lack of Reasonable Alternatives: The defendant must demonstrate that, under the circumstances, they had no reasonable alternative but to commit the tortious act. The defence will fail if the court determines that the defendant could have taken an alternative course of action, such as seeking help from law enforcement or avoiding the situation entirely.
• Proportionality of the Response: The defendant’s actions must be proportional to the threat they faced. For example, if the defendant was threatened with minor harm but responded with excessive or unreasonable force, the defence of duress may not apply. The response must be limited to what is necessary to avoid the threatened harm.
• No Voluntary Assumption of Risk: If the defendant voluntarily placed themselves in a position where they might be subject to coercion, they may not be able to claim duress. For instance, if a defendant willingly became involved in criminal activity that led to them being coerced into committing a tort, they may not be able to escape liability under this defence.

Scope of Duress in Tort Law

While duress is a recognized defence, its scope in tort law is limited. The defence is typically confined to cases where the defendant acted under extreme pressure, with little to no other options available. Courts are reluctant to excuse tortious conduct unless the duress was both immediate and compelling. Unlike in contract law, where duress can be invoked in a broader range of circumstances (such as financial or economic pressure), tort law requires that the threat be serious and immediate. Duress can apply in a variety of torts, including:

• Trespass to Property: If a defendant enters someone’s property under threat of harm, they may raise duress as a defence to trespass.
• Conversion: If a defendant is forced to take possession of someone else’s property under the threat of violence, they may invoke duress as a defence.
• Assault and Battery: A defendant may argue that they committed an act of battery while under duress, for instance, if they were forced to strike another person to avoid immediate harm to themselves.
• False Imprisonment: Duress may also be raised in cases of false imprisonment where the defendant was coerced into unlawfully detaining another person.

However, duress does not typically apply to all torts. In torts involving intentional infliction of harm or fraud, for example, courts may be less inclined to excuse the defendant’s actions, even if duress is claimed.

Case Laws:

R v. Hasan, [2005] 2 AC 467 case dealing with duress in criminal law, the House of Lords provided guidance that also resonates in tort cases. The court emphasized that for duress to be a valid defence, the threat must be immediate, and the defendant must not have voluntarily exposed themselves to the risk of duress. This principle underscores the narrow interpretation of duress in both criminal and civil contexts.

Limitations of the Duress Defence

While duress provides an important safeguard for individuals acting under extreme pressure, it has significant limitations in tort law:

• No Defence for Prior Wrongdoing: Duress cannot be used as a defence if the defendant voluntarily placed themselves in a situation where they might be coerced into committing a tort. For example, if a person willingly joins a criminal enterprise and is later coerced into committing a tort, they cannot invoke duress to escape liability.
• Proportionality of Response: The defendant’s actions must be proportionate to the threat they faced. If the response to the duress involves excessive force or causes harm far beyond what was necessary to avoid the threat, the defence will likely fail.
• Exclusion from Certain Torts: Duress is generally not available as a defence for certain types of intentional torts, particularly those involving serious harm to others. Courts are reluctant to excuse behaviour that causes significant injury or damage, even if the defendant was coerced.
• Inapplicability to Economic Duress: Unlike in contract law, where economic duress can void agreements, tort law does not recognize economic pressure as a valid form of duress. The threat must involve serious harm, typically of a physical nature, to be accepted as a defence.
• Narrow Interpretation by Courts: Courts tend to interpret the duress defence narrowly, requiring clear evidence of an immediate and unavoidable threat. If the defendant had any reasonable alternative to committing the tort, duress is unlikely to succeed as a defence.

Conclusion

Duress as a defence in tort law provides a narrow but vital avenue for defendants who commit wrongful acts under extreme coercion. The doctrine recognizes that individuals may sometimes be forced to act against their will in order to avoid greater harm. However, the defense is carefully circumscribed to prevent misuse and to ensure that tortious conduct is not excused too easily. For duress to apply, the threat must be immediate, the defendant must have no reasonable alternative, and the response must be proportionate to the threat.

While the defence of duress is available in tort law, its application remains limited, reflecting the law’s emphasis on personal responsibility and accountability. Courts carefully scrutinize claims of duress to ensure that they are not used as a convenient excuse for wrongdoing. By maintaining a rigorous standard, the legal system seeks to strike a balance between excusing individuals who act under extreme pressure and holding people accountable for their actions in most circumstances.

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