Act of Private Defence in Torts

In tort law, the defence of an act of private defence allows an individual to use necessary force to protect themselves from harm without incurring liability. 

Elements of Act of Private Defence

The following elements characterise act of private defence:

Use of Necessary Force: The defendant is justified in using force that is necessary and proportionates to defend themselves from an imminent threat. The force employed must be reasonable in relation to the nature of the attack and the danger faced.

Imminent Threat: The defendant must genuinely believe that they are facing an immediate threat of harm. The threat must be imminent, meaning it is about to occur or is currently happening. The use of force is justified to prevent or counteract the imminent threat.

Tricky Areas

While the act of private defence provides a defence against liability, there are certain limitations and considerations to be aware of:

Unwarranted Use of Force: The use of force in self-defence is only justified when there is an imminent threat. Using force for retaliation, revenge, or in response to past harm that does not present an ongoing danger is not permissible.

Excessive Force: The use of excessive force goes beyond what is necessary for self-defence and may not be justified. If the level of force employed exceeds what is reasonable in the circumstances, the defendant may still be held liable for any harm caused. For example, shooting someone dead in response to an attack with a bamboo stick may be considered excessive force.

Degree of Force Used: The degree of force actually used should be proportionate to the threat faced. If the force employed goes beyond what is necessary to repel the attack or protect oneself, the defence of the act of private defence may not apply fully or may be limited.

Examples

Assault: Imagine you are walking alone at night when an unknown individual approaches you aggressively, making threatening gestures and attempting to physically assault you. In response, you use reasonable force to defend yourself, such as pushing the assailant away or delivering a measured strike to neutralise the threat. 

If it can be established that your use of force was necessary and proportionate to protect yourself from imminent harm, the defence of act of private defence may apply.

Burglary: Suppose you are at home when you notice an intruder attempting to break into your house. In fear for your safety and the security of your property, you take appropriate action by calling the authorities and, if necessary, using reasonable force to prevent the intruder from entering or to detain them until help arrives. 

Suppose it can be demonstrated that the force used was necessary and reasonable to protect yourself and your property from an imminent threat. In that case, the defence of the act of private defence may be invoked.

Robbery: Consider a situation where you are approached by an armed assailant demanding your belongings. In fear for your life and recognising the imminent threat posed by the assailant, you manage to disarm them and disable their ability to harm you or others. 

If it can be proven that your use of force was necessary to protect yourself and others from immediate danger and was proportionate to the threat faced, the defence of the act of private defence may apply.

Summary

The defence of the act of private defence recognises an individual’s right to protect themselves from harm by using necessary and reasonable force. It requires the presence of an imminent threat and the use of force that is proportionate to the danger faced. 

However, the defence has limitations, such as the prohibition of using force for retaliation or revenge and the requirement to avoid excessive force. Each case involving act of private defence must be evaluated based on the specific circumstances and the reasonableness of the force used.