This article has been written by Sharat Gopal, pursuing BA-LLB at Delhi Metropolitan Education, GGSIPU. In this article, he has discussed private defence and its essential under the law of tort.
According to Salmon, a tort is a civil wrong for which the remedy is common law action for the unliquidated( an amount that cannot be foreseen by a fixed formula) damages caused to the person. But this civil wrong is not exclusively based on breach of contract or breach of trust or other merely equitable obligations.
On the other hand, Winfield states that the tortious liability arise from the breach of duty which is primarily fixed by law. And the duty towards persons is general and the breach of this duty is redressable by an action for unliquidated damages.
Both these views are contrary to each other. Salmond’s definition is accepted more by people as it is more practical in nature. On the other hand, Winfield’s definition is more of theoretical in nature.
Law of tort is not codified in India. It was adopted from the English Common Law. In India, unlike other countries, moral wrong is not punishable. In countries like Canada, who follow common law, have moral value laws know as Samaritan Law. In these countries moral wrong is punishable. Eg. Not giving water to a thirsty man, when you are carrying water with you, is morally wrong. This is punishable is countries like Canada, but not in India.
Every person in the world has a right to protect himself from any attack or harm, this will cause him injury. The same applies to all laws and also to tort law. When the person is accused of an act, he has the right to defend himself from the claim that the plaintiff has brought against him. There is a list of general defences that are accepted in the law of tort. These defences are-
- Volenti non-fit injuria,
- Statutory Authority,
- Plaintiff the wrongdoer,
- Inevitable accident,
- Act of God,
- Mistake, and
- Private Defence.
In general defences, Private defence is one the most used defence. It is defence provided not just for the body of the person but also for the property. Law of private defence can be traced back to early civilization where every person had a right to defend his/her life and property. As history abounds with instances where communities or tribes had exercised their right of private defence to their life and property. Also in two worlds wars which was witnessed by the whole world, was a conflict to protect their land, water or resources from intervention by countries. Private Defence is a natural right to protect oneself against any violent act of others to his life or property.
Now it can be understood as that if ever a man in threat or in terror of present death or harm, get compelled to do any act which is against the law, then he will be totally excused from the act. As no one or no law shall expect a man to abandon his life for the preservation of law. But that act must be justified as it was preceded with an imminent danger.
Hence, the law permits the use of a reasonable force against an imminent danger to protect one’s person and property. And persons that act is excused to the extent of reasonable force that was required to avoid that harm.
To use private defence there requires main conditions to be fulfilled i.e. –
- Imminent threat– There should be an imminent or instant danger to the life of a person or loss to property. For eg, A saw B trying to rape C. Seeing the immediate danger to life of C, A hit on B’s head with a stone present there. Here A used private defence for the danger which was present at the time of use of private defence. Also, this can be understood using the case of Morris Vs. Nugent, where A’s dog attacked B and bite him but when after attacking dog stepped back and started running away, B stood and shot the dog. In this case, court held that if B would have shot the dog when it was attacking him then he could have successfully claimed the defence, but as according to the facts of the case he shot the dog when there was no imminent or immediate danger present and hence won’t get a defence.
- Proportional force – According to this, the force used against the danger to the life of a person or to a property must be proportionate to the actual danger. The force used must be reasonable to avoid that harm and must not extend the dangerous act. For eg. If a theft enter one’s house but after getting caught he threat the person with a knife standing far away from him and after that the owner of the house getting angry shot him dead. Here the force used is not reasonable as the owner must have shot him in his cleg or somewhere to just injure him, but killing the person where there was no just grave danger to life, the private defence won’t apply. Hence, if A hit on B’s head, B cannot justify his defence by drawing sword and cutting of the A’s head.
In the case of Bird V. Holbrook (1823) 4 Bing. 628, 130 E.R. 91, Holbrook was the defendant who installed spring-gun trap in his garden to catch an intruder, who had been stealing from his garden for long. He did not post any warning sign or board. Now, Bird who was the petitioner entered Holbrook’s garden chasing his escaped bird and got trapped and gain severe damages to his knee. Here the court held that defendants intention here was not to catch the intruder but to cause harm to him as he also didn’t post any warning sign. Hence, he was liable for his actions and didn’t get any defence.
The defence of private defence is more like a right to protect ones life and property. It is a natural right which has been recognised not just by the law of tort but has also been provided as a defence in criminal law under IPC,1860. Though this defence can easily be misused and can also be used as an excuse for the commission of a crime. To avoid this the essentials of private defence i.e., Reasonable threat, proportionate force and time to recourse must be satisfied.