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Self Defence as Defence in Tort Law

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Law and You > Law of Tort > Self Defence as Defence 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 the self defence ad defence of consent.

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.

Self Defence

Defence of Self-Defence:

Self-defence is a well-established defence in tort law, particularly in cases involving intentional torts such as assault, battery, or false imprisonment. When successfully invoked, self-defence can absolve the defendant from liability, provided certain conditions are met. The underlying principle is that a person has the right to protect themselves from imminent harm, but the force used must be reasonable and proportionate to the threat faced.

Key Ingredients of Self-Defence in Tort Law:

  • Imminent Threat of Harm: The defendant must have faced an immediate or imminent threat of harm from the plaintiff. There must be a reasonable belief that the threat was real and imminent, justifying the need for self-defence. Self-defence cannot be used preemptively against a speculative future threat or after the threat has passed.
  • Reasonable Force: The force used in self-defence must be reasonable and proportionate to the threat faced. The court will assess whether the amount of force was necessary to protect the defendant or someone else from harm. Excessive or disproportionate force may invalidate the defence. For example, using a weapon against an unarmed attacker may be considered excessive if the force used was more than necessary to neutralize the threat.
  • Retaliation is Not Self-Defence: Self-defence cannot be used as a justification for retaliating after an attack has ceased. Once the threat is over, any further use of force would not be protected by this defence. The defendant’s actions must be in response to the threat, not motivated by revenge or anger after the danger has passed.
  • No Duty to Retreat (in most cases): In most legal systems, the defendant does not have a duty to retreat before resorting to self-defence. As long as the threat is imminent and real, the defendant may use force to protect themselves, even if retreat is possible. However, some jurisdictions or specific situations may impose a duty to retreat, especially if safe escape is available without endangering oneself.

Application in Tort Law:

  • Battery: In cases where the plaintiff sues for battery (i.e., the defendant made unlawful physical contact), the defendant can argue self-defence by proving that they used reasonable force to prevent an attack or injury. For example, if A punches B and B punches back in immediate response to defend themselves, B could raise self-defence as a defence to a battery claim.
  • Assault: Assault involves the threat of imminent harm rather than physical contact. If the defendant reasonably believed they were about to be harmed and acted to prevent that harm, they may claim self-defence. For example, if A raises their fist to punch B, and B pushes A away to avoid being hit, B’s action may be justified as self-defence.
  • False Imprisonment: Self-defence may also be relevant in false imprisonment cases where the defendant can argue that they restrained the plaintiff to protect themselves or others from harm.

Limits to Self-Defence:

  • Proportionality: The key limitation to self-defence is the requirement that the force used must be proportional to the threat. Excessive force beyond what was necessary to stop the threat can render the defence invalid. For example, if someone slaps another person, responding with lethal force would be considered disproportionate and would not be protected by self-defence.
  • Mistake: Self-defence can be claimed even if the defendant was mistaken about the threat, provided the mistake was reasonable under the circumstances. However, an unreasonable mistake (e.g., believing someone is attacking you when they are not) would not qualify for the defence.The court assesses the reasonableness of the defendant’s belief in the threat when deciding whether self-defence applies.
  • Use of Deadly Force: Courts are generally stricter when deadly force is used. The use of deadly force is only permissible when the defendant reasonably believes they are in imminent danger of death or serious bodily harm. For example, if A is about to stab B, and B responds by using deadly force, B may claim self-defence. However, if A was merely making verbal threats, using deadly force might be disproportionate.
  • Defending Others: A person may also use reasonable force to defend someone else who is under threat of harm. This is an extension of the right to self-defence and is evaluated similarly, with a focus on whether the force was necessary and proportionate.

Case Laws:

In Cockcroft v. Smith, (1705) 91 ER 541 case, where the defendant bit off part of the plaintiff’s finger in response to a minor attack. The court held that this was excessive force in response to the threat, and the defence of self-defence was rejected due to the disproportionate nature of the response.

Bird v. Holbrook, 130 eng. Rep. 911 (C.P. 1825) case involved the setting of a spring gun to protect property. The court ruled that using such excessive force in defence of property was not justified, and the plaintiff, who was injured by the spring gun, could recover damages.

In Lane v. Holloway, 3 All ER 129 (1967) case, where an elderly man hit a younger man, who responded by seriously injuring the elderly man. The court held that the force used in retaliation was excessive and the younger man could not rely on self-defence, as the response was disproportionate.

In Ramanuja Mudali v. M. Gangan, AIR 1984 Mad 103 case, where the plaintiff was moving towards his own house at night and when he was passing through defendant’s land he got electrocuted by a live wire, put up by the defendant to stop the trespasser. Here, the defendant was held liable since he had exceeded the right of private defence to his property.

In Turner v. Jagmohan Singh, (1905) 27 All 531 case, where the defendant was going somewhere in his carriage, driven by two horses, on road. A vicious dog started following the carriage and repeatedly attacked the horses and came into defendant’s compound. The defendant tried to prevent him but of no avail. Finally, the defendant took out the spear and attacked the dog and the dog got injured and later on died due to severe injury. On a suit filed by the plaintiff, the court observed that the defendant was justified in his action since he was tried his level best to scare off the dog but in spite of his attempts, he could not succeed and then only resorted for final blow.

Self-defence is a crucial doctrine in tort law, allowing individuals to protect themselves from harm without facing liability, provided they use reasonable and proportionate force. Courts carefully assess the facts to ensure that the defendant’s actions were justified under the circumstances, with a focus on the immediacy and severity of the threat. However, the defence is limited when the force used is excessive, retaliatory, or when the perceived threat was unreasonable.

Conclusion:

Self-defence is a well-established defence in tort law, allowing individuals to avoid liability when they commit an otherwise tortious act in response to an imminent threat of harm. For the defence to succeed, the defendant must demonstrate that their actions were necessary to protect themselves from immediate danger, and the force used was reasonable and proportionate to the threat. Self-defence is rooted in the principle of self-preservation, acknowledging that individuals should not be held liable for protecting themselves against unlawful aggression.

However, this defence is limited by certain conditions. The threat must be imminent and real, not hypothetical or future, and excessive force beyond what is reasonably necessary to neutralize the danger can negate the defence. Importantly, the defendant must not be the instigator of the altercation; one cannot claim self-defence if they provoked the confrontation.

Self-defence also extends to the protection of others (defence of others) or property (defence of property), though the same rules of reasonableness and proportionality apply. Ultimately, self-defence reflects a balance between individual rights and societal protection, ensuring that people are not penalized for acting to preserve their safety, but also requiring that such actions are measured and justified under the circumstances.

Related Topics:

General Defences in Tort Law

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