In the sphere of tort law, private defence is a defence against liability for a tortious act. If a tort is committed by someone acting to protect himself/herself, members of his/her family, or property, or even people in general, there is no liability if the action is a reasonable response to the threat of harm. However, for this defence to be applicable, it is necessary that the force applied is reasonable and proportionate to the harm apprehended. For example, it is not reasonably proportionate to shoot someone with a gun in response to a shove or push. Here, the principle of private defence would not apply.
“Honest and reasonable belief of imminent danger” is the test to determine whether this immunity can be applied. In certain circumstances, the benefit of this defence is extended by the Indian Penal Code even to act that cause death. In India, Sections 96 to 106 of the Indian Penal Code give statutory recognition to the right to private defence.
Also Read Discharge of Torts in India
Also Read Damages for Nervous or mental shock
Section 96 of the Indian Penal Code states that nothing done in the exercise of the right to private defence is an offence. Further section 97 authorises one to exercise right of private defence to protect one’s person and property and also that of other person, subject to restriction as placed under section 99 that there is no right of private defence against any act which does not reasonably cause the apprehension of death or of grievous hurt.The right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence. Thus, the act done in private defence must be reasonable and proportionate.
Though the provisions of these sections apply to criminal law, the principles contained therein can be beneficially imported into tort law as well. This principle can be better explained with the help of case laws.
Also Read Rule of Novus Actus Interveniens
Also Read Remoteness of Damages
In Turner v. Jagmohan Singh, ILR (1905) 27 All. 531, this defence was applied. A vicious stallion repeatedly attacked a pair of mares belong to the carriages in which the defendant was being driven, and finally came into the defendant’s compound in spite of attempts made to prevent him, and continued his attacks until the defendant getting hold of a spear inflicted somewhat severe wound on the left hind quarter of the stallion. After this the stallion made off, but subsequently died from the effects of the wound.
In another case, Morris v. Nugent, (1836) 7 C & P 572, the defendant was passing by the plaintiff’s house. The plaintiff’s dog ran out and bit the defendant. On the defendant’s turning around and raising his gun, the dog ran away, frightened. However, he shot the dog as it was running away. It was held that the defendant was not justified in doing so. To justify the shooting of the dog, he must be actually attacking the party at the time. It was thus, not reasonable to shoot the dog and the immunity of private defence does not apply.