January 21, 2021

Private Defences under Law of Torts

Law of Torts

Introduction

The jurisprudence all over the world has given due recognition to the notion of self-preservation as a basic human instinct. A number of democratic countries around the world recognize the use of reasonable force on apprehension of use of force.[1]

A defendant shall be held liable for a tort committed by him, provided that all the essential ingredients are fulfilled that are necessary for that wrong. However, using “General defences” in the law of tort, a defendant can escape from his liability, if his actions qualify certain essential elements that are attached to these defences.

Private defence is one of the “General defences” and the most common of all.

The law has given the right to make use of reasonable force for protecting one’s person or property. The right is not only limited to protection of one’s own life, property and family but extends to protecting other person’s life and property in general. Hence, an action resulting in harm while exercising this right.

Use of reasonable force in protection of one’s own movable and immovable property is permitted under law. The use of reasonable force is justified on the ground only when there was an imminent threat and use of force was the last option to repel invasion. The reasonable force can only be used when there is a reasonable apprehension of use of force by another person. That shall not attract tortuous liability. However, on use of reasonable force, the person has to show valid grounds for use of such force.

Justice Donovan had observed the law of private defence as a law which is not written but is born with us, though never learned or received by way of tradition but have learnt from the nature itself, though we were never trained in it but is deep rooted. It is a recognized principle that if there is imminent danger of life and no valid recourse is available, use of reasonable force is acceptable defence before Court of law.

In the case of Bird v. Holbrooke, spring gun trap was setup by the defendant in his garden in order to catch the intruder who had been stealing things from his garden. However, on installation of spring gun trap, defendant did not put up any warning signal on the wall or on the entrance. Plaintiff who had been chasing an escaped bird mistakenly entered upon the garden of the defendant. Plaintiff suffered from the injuries due to the setting of the spring gun trap upon entry in the defendant’s garden.

The Hon’ble Court after going through the facts of the case observed that setting up of the trap without any adequate notice makes the defendant liable for the damages on account of the injury caused by the setting off the air spring gun. The Hon’ble Court in a similar case emphasized on the fact that if adequate notice was put up on the entrance after installing spring gun, no damages will be awarded for the injury caused due to setting off spring gun.[2]

L.B. Curzon has defined Private Defence as: “Where a person commits a tort in defence of himself or his property, he is not necessarily liable if the act has been in the circumstances of a reasonable nature”.[3]

Osborn’s Concise Law Dictionary defines Private Defence as: “An action taken in reasonable defence of one’s person or property. It can be pleaded as a defence to an action in tort. The right of private defence of one’s family and probably of any other person from unlawful force”.[4]

Essentials

1. There should exist an imminent threat to the personal safety or property or other person’s life or property leaving no time for the person to resort to help from the nearest authority. It would be not be justified for a person S to use force against another person E, merely, because he is of the opinion that E might in the near future attack him, nor can the force be justified by way of retaliation once the attack is over.[5]

In Morris v. Nugent, while the defendant was passing by the plaintiff’s house, his dog in fury bit the defendant. The defendant raised his gun in order to shoot the dog in private defence. Even when the dog ran away, he did not stop and still shot the dog. A suit was filed before the Court by the plaintiff claiming damages. The defendant pleaded that his action was in exercise of his right of private defence. The Court held that the act of defendant was not justified since the dog was running away from him and there existed no imminent danger to his life.[6]

2. The force used is absolutely necessary for repelling the invasion should be used for. “While the law recognizes the right of self-defence, the right to repel force with force, no right is to be abused and the right of self defence is one which may be easily abused.”[7]

3. The force used should be proportional to the apparent urgency of the occasion.[8] In no way should it be excessive than what is essentially required. What is a reasonable force depends on the facts and circumstances of each case.

The law permits taking of such measures as may be reasonably necessary for the purpose of protecting of property. The reasonable force can only be used when there is a reasonable apprehension of use of force by another person. That shall not attract tortuous liability. However, on use of reasonable force, the person has to show valid grounds for use of such force.

Conclusion

The right of Private Defence does not exist against the acts which are not offence. It is available against all assailants whether sane or insane, competent or incompetent and a person mistaken or otherwise. The right prevails against overt attacks irrespective of their intention and meaning. It exists even though the innocent persons are harmed, when there is danger to life or limb, and there no other alternative to protect the person. The test is whether there is immediate necessary for Self-defence and further whether or not it was immediately necessary for the defendant to adopt that particular course of action.

References


[1] Suresh Singhal v. State (Delhi Administration), 2017(2) SCC 737

[2] 130 eng. Rep. 911 (1825).

[3] L. B. Curzon, A Dictionary of Law, 289, (1983)

[4] Roger Bird, Osborn’s Concise Law Dictionary, 278, (1983)

[5] Cockcroft v. Smith (1706) 11 Mod.Rep.48.

[6] 7 C&P 572 (1836).

[7] ibid.

[8] Mc. Neill v. Hill (1929) 2 D.L.R 296, Per Martin, J.A.


Author Details: Nivedita (Symbiosis Law School, Hyderabad)

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