INTRODUCTION
The word “torts” originally comes from French origin. In medieval Latin, it is derived from the word ‘tortum’ which simply means an injury, or a wrong act done. In other words, tort consists of a wrongful act done by one person on another which does not include civil law or criminal law involvement. The wrongful act which is done is called a tortious wrong or a tortious act. The law of torts does not have any statute or act for itself because it is derived from English common law. When a tortious act is done towards another, it attracts a series of punishments which includes reimbursement or compensation to put that person back in the same situation where he must have been when that tort had not been performed against him. Thus, to understand tort is a civil wrong which is mentioned under Section 2(m) of the limitation act, 1963. The essential elements of tort are-
- Wrongful act or omission.
- Legal injury or actual damage.
- Duty imposed was not fulfilled.
Besides this, every individual who is accused of tortious acts has some defenses available to him to prove himself innocent. One such defense is private defense in law pf torts. Under this defense, the tortfeasor tries to ensure that whatever act he committed was done to protect himself from that expression of damage in a proportionate manner.
WHAT IS PRIVATE DEFENSE IN TORTS?
The act of private defense is one of the defenses available to the accused who is blamed for the tortious act. Under this defense, the tortfeasor proves the fact beyond reasonable doubt that whatever force he or she used against the other person was used to protect his property, family or even himself. The force used against the other must be proportionate and disproportionate to harm the other intentionally or to take some revenge against the other. Thus, the force he used was for protection of his immovable or movable property and the law only allows the use of proportionate force and that shall not attract tortious liability.
The following are the essentials of private defense as a defense itself-
- Real and imminent threat to the plaintiff.
This means that the threat was direct to the plaintiff and had he not taken private defense, he could have got hurt or that threat might have damaged his immovable or immovable property.
- The force used was proportionate.
This condition states that whatever the threat was against the plaintiff, and whatever he used as a private defense, that force was proportionate in nature. This also implies that the amount of force he used against another was not disproportionate, that is not in excess and was not used to harm the other person or to take revenge against him.
- The force that was used was enough to ward off danger.
This is again with relation to the above condition that whatever the plaintiff used as a force against another was just to ward or simply remove that danger which could harm him, his property or family. It was not used in relation to harm the other or to take revenge.
ILLUSTRATIONS
- Anshu was running towards Aanshika with a knife in his hand. Thus, to protect herself from that danger, Aanshika threw stones at Anshu to scare him away. Here, Aanshika can claim the defense of private defense against her action because she did this to protect herself from danger and also did not used disproportionate amount of force.
- Person A had a rivalry with person B. One day, when person A saw person B trespassing his house, he shot person B to take revenge and person B died on the spot. Here, person A cannot claim private defense because firstly the force he used was disproportionate which the law does not allow and secondly, he used this amount of force to take revenge. Thus, private defense does not apply here.
- Preeti was standing in her garden. She saw her 15-year-old nephew running towards her with a pistol gun. Thinking that could harm her, she threw a big stone at her nephew, and he was injured badly. Here, Preeti in any case scenario cannot claim private defense because there was no imminent threat to her.
CASE LAWS
- BIRD V. HOLBROOK 1823
Holbrook was the defendant and bird was the plaintiff in this case. In this case, the defendant had put spring guns in his garden without any warning sign issued to catch the person who was stealing from his garden. One day the plaintiff went to the defendant’s garden and without having any knowledge of spring guns installed at his garden got injured badly. The case was taken up and the court held that the defendant cannot claim private defense because of the fact that he did not put any warning signal, and this was purely done to harm the other person or to take revenge from him.
- EMPEROR V. MAMMUM
In this case the defendant was accused of murder against the plaintiff who was cutting rice in his field. The court held that the defendant could have put the matter in the hands of authorities rather than brutally murdering the plaintiff.
- MANNU V. STATE OF UP
In this the court held one of the essential conditions to claim private defense. The court said that anyone who is accused cannot claim private defense in case he or she uses excess amount of force in order to harm, kill or take revenge against the other person.
CONCLUSION
In short, it is understood that tort is a civil wrong that legally injures or simply injures the other person. There exists only a remedy of compensation and no statute exists for the law of torts. Also, it is clear that if there is someone accused of a tortious act, he or she has certain defenses or exceptions, one of which is private defense. Private defense is a defense that is used when the person acts in good faith to save himself from the threat and not to cause much harm to the other.
Author: MAANYA JAIN , a Student of VIVEKANANDA INSTITUTE OF PROFESSIONAL STUDIES
