This Blog is authored by Nishita Gupta, pursuing B.B.A L.L.B from Symbiosis Noida, during her internship with NitiNyaya Law Offices.
DEFENCE- In modern times the word ‘Defence’ is used as a common term in everyday life. But the concept of ‘Defence’ is not a novice term in law. In general, defence can be construed as an act or an attempt by a person to protect himself or herself from any kind of imminent threat and this act can extend itself to causing some injury to other person (aggressor) or in some cases to even causing the death of the aggressor.
But it should be noted that some technical aspect of law that only reduces the remedy or the damages awarded to the claimant to certain extent cannot be construed as a defence, for example if a defendant claims contributory negligence on the part of claimant and successfully gets the court to reduce the damages awarded to the claimant to a certain extent cannot simply say that the claim of contributory negligence acted as a defence for him. Only those contentions where the defendant evades from the imposition of any liability whatsoever on him can be said to be a valid defence. In other word’s only those arguments can be considered as defence which don’t let any liability arise on the part of the defendant.
Private Defence – when a person perceives any threat to his person or property, he is entitled to resorting to some protective measure and warding of the threat. Such measures include inflicting harm on that other person or thing that was about to harm the defendant and no liability would arise on the part of the defendant.
When can a person resort to private defence?
A person is vested with the right to resorting to private defence in cases where the situation warrants the use of force in order to save oneself form some conspicuous threat, however there is a condition attached to availing private defence and the condition acts as a barrier in aggravating the circumstances in a myriad of different situations.
The condition is that if a person has the time and resources to contact public authority i.e. police, then he or she is under a compulsion to do so and could not avail the right of private defence. In other terms a person can only avail the right to private defence if the situation is such imminently dangerous that warrants the use of defensive force.
Apart from necessity there are certain other elements of private defence that one needs to acknowledge.
- Proportional application of force – The force that one uses in self defence should be accompanied by the element of proportionality. One cannot be provided with the liberty of using any amount of force that one desires, in the act of self-defence.
For example- one cannot harm a person in self-defence to such an extent that completely maims him, if the threat with which he(defendant) was faced was not that serious.
- Insane aggressor – If a person is not of sound mind and un-fortunately he attacks someone under the influence of unsoundness then the person who faces the act of aggression is completely vested with the right to act in self-defence without incurring any kind of liability whatsoever.
Analysis of Lane v Holloway  1 Q.B.
Facts: The Claimant, a retired gardener, injured himself in a fistfight with the defendant. The Defendant, who was aged 23, owned a restaurant near to where the Claimant lived. The cafe become frequented by youths late at night. The Claimant raised objection to the behaviour of the youths and the family relations between the two neighbours were strained. One night the Claimant hurled abuse on the Defendant’s spouse from outside their home. The Defendant, went out to confront the claimant in his night-time gown. The Claimant, thinking he was about to be hit, punched the Defendant. The Defendant then struck the Claimant in the eye. Due to the punch the Claimant incurred 18 stitches and required surgical procedure. The Claimant brought an action for damages. The trial court held the Defendant accountable however reduced the damages considering the fact that the Defendant had been provoked into the motion and consequently awarded the Claimant £75 rather than £300. The victim appealed on the reduction of awarded damages and the Defendant appealed contending that ex-turpi-causa non oritur action bars recovery.
Rule: Irrespective of whether the brawl begun by being unlawful, it was held that one of them can sue the other for harms occurring from the fight. In a common battle with clenched fists there is no reason for action to both of them for any damage endured. The reason is that every one of the members in a fight willfully goes out with the mindset of enduring coincidental wounds to himself. Volenti non fit injuria. But here the plaintiff got a blow of extreme seriousness and that was not in proportion to the blow that he first gave to the defendant. The defendant can only escape liability if he is able to prove that he acted in self-defence.
Judgement: The defendant was held liable because he exceeded his right to self-defence by giving a blow to the plaintiff that was out of the ambit of proportional response and this assertion is corroborated by the fact that the plaintiff received 18 stiches and had to undergo surgery. Hence the conviction of the defendant is right.
Analysis: The principle of self-defence is multifaceted and the topic of proportional retaliation must be coupled over here in this case. The defendant inflicted a wound of such intensity that was not justified in the case at hand.
There is no denying the fact that the right to self-defence is a multifaceted topic and requires exhaustive interpretation. The cornerstones of the topic are the elements under which one can exercise his right and at the same time the limitation to the right.
Necessities are what summons the excuse to use the right. One cannot simply go around and keep hurting people without any cause. Each and everyone has the right to self defence but that can be exercised only under a given set of rules. The cases referred above give a clear explanation of how one can use the right to self-defence appropriately without exceeding it. The right should be used in such way that one is able to strike a sense of fear in the mind of the aggressor in such capacity that he again does not tries to do some act of aggression.