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3. Inevitable accident- Sir Fredrick Pollock said “Inevitable accident are those incidence which a person of ordinary prudence can not in-spite of all reasonable care on his part in the circumstances in which they occur”.
E.g;- If a person walk in the public road driving a motor, it is his duty to take necessary care and to see that no person is harm. But if in-spite of requisite care accident took place and someone is injured then he is not liable for that.
Case;-
I-Stanley v Powell(1891) 11 QB 86
Facts
The plaintiff and defendant were member of a shooting party, the defendant fired a bullet at pheasant(kind of bird) unfortunately the bullet from his gun hit an oak tree and rebounded and injure the plaintiff.
Held;
That the injury to plaintiff was consequence of an inevitable accident and therefore the defendant was not liable.
iv- Holmes v. Mather(1875) LR 10 EX 261
Facts;-
The defendant and his servant were driving defendant's horse on the highway, the one who was driving is servant, the horse started raning away on the barking of the dog and became uncontrollable or unmanageable in-spite of the best care taken by the driver. The Horse struck the the balcony of the plaintiff's house, the plaintiff who was standing in the balcony was serious injured.
Held;-
It was held that no damages could be recovered by the defendant to the plaintiff because the servant had done his best under circumstances to control the horse but failed.
ii-Brown v. Kendall(1850)
Fact;-
Two dogs began fighting and their owners attempted to separate them. In an effort to do so, Defendant beat the dogs with a stick and accidentally injured the Plaintiff in the process. Plaintiff brought suit against the Defendant for assault( physical attack) and battery.
Held;-
It was held that to separate the fighting dogs was legally act and there was no negligence on the party of the defendant in the act.
iii- Fardon v. Harcourt
Facts;-
The defendant and his wife parked his motorcycle in-front of the shop and went in the shop to purchase something, they left their dog inside the car, before leaving the car the defendant had closed the doors and windows properly, the dog had always been quiet and docile. The plaintiff passed carrying gorgeous clothes, the dog was excited and started barking and jumped to the window and smashed the window, a piece of glass entered plaintiff's eye, the plaintiff sued the defendant for the act of his dog.
Held;-
It was held that the defendant could not recover the damages because there was no negligence after taking all precautions against it.
4. Private defense
The basic premise of public and private defenses is that in some circumstances it is lawful to use reasonable force in self-defense, prevention of crime or to damage property for the protection of other property.
Elements for self-defense are two;-
a) There must be emminate( about to happen) rate to a person or property.
b) The use of force must be in the proportion in which is necessary in the circumstances.
E.g;- A person who hold a knife you cant kill him using a gun.
Case;-
I-Morris V. Neugent(1836)
Facts;-
When the defendant was passing in-front of plaintiff house he aimed to shoot plaintiff dog who attempted to bite him. The dog ran away, but when the dog was returning the defendant shoot the plaintiff's dog and died. The plaintiff sued the defendant for shooting his dog.
Held;-
It was held that the right of private defense can not be pleaded, the act was unlawful because he shoot at the dog at the time when it was not attacking and the force was excessive, therefore he was liable.
ii-R v Gladstone Williams (1984) 78 Cr. App. R. 276
Facts
The appellant witnessed a man attack a youth. He rushed to the aid of the youth and hit the attacker. In fact the youth had just committed a mugging and the attacker had wrestled him to the ground to prevent him escaping. The appellant was convicted of ABH under s.47 of the Offences Against the Person Act 1861. He appealed contending that the trial judge gave a misdirection to the jury in requiring the mistake to be a reasonably held mistake.
Held:
The appeal was allowed and the appellant's conviction was quashed.
iii- R v McGrath [2010] EWCA Crim 2514 Court of Appeal
Facts
The appellant had been out drinking with her boyfriend celebrating her A level results. They both became heavily intoxicated. On their return to her parents’ house an altercation occurred. He hit her, bit her and spat on her three times. She grabbed a knife from the draw. She claimed she wished to frighten him into stopping, but that he impaled himself on it. On the issue of self –defence the trial judge in his direction referred to s.76(3) Criminal Justice and Immigration Act 2008 relating to intoxicated mistaken belief that use of force was necessary to defend oneself. The jury rejected the defence and she was convicted of manslaughter. She appealed contending that since she was actually under attack rather than acting in the belief that she was under attack the trial judge was wrong to refer to this.
Held:
Appeal dismissed. The reference to mistaken belief was an unnecessary complication which should not have been present, however, it did not render the conviction unsafe.
iv-R v Bird [1985] 1 WLR 816
Facts
The appellant was at a party on her 17th birthday. Her ex-boyfriend, Darren Marder, turned up with his new girlfriend. A heated argument developed between the two and the appellant asked him to leave. He did so but later returned. A further argument occurred and the appellant poured a glass of pernod over him. Marder slapped her and pinned her against a wall. The appellant punched him in the face and claimed that she had forgotten that she had a glass in her hand. The glass broke causing Marder to lose his eye. She was charged with wounding under s.20 of the Offences Against Person Act 1861. She argued she acted in self -defence. The trial judge directed the jury that in order to rely on self-defence, the defendant must demonstrate that she did not want to fight. The jury convicted her and she appealed contending that there was no obligation to demonstrate an unwillingness to fight.
Held:
Appeal allowed. The conviction was quashed. Whilst withdrawing or demonstrating an unwillingness to fight is good evidence that the defendant is acting reasonably and in good faith in self defence, there was no absolute obligation to demonstrate an unwillingness to retreat.
Condition for Protection of property
a) The force for removing tress passer from premise must be reasonable.
b) The plaintiff must be in possession of the premises. E.g;- Somebody who entered in your house you have a right to take him out.
Case;-
Holmes V. Wages
Facts
The defendant were playing cricket the plaintiff was watching and the defendant asked him to come and play then defendant ordered him either to take off players jersey or leave the play ground, the plaintiff refused order of the defendant, then the defendant forced to remove the plaintiff in the playground, then the defendant brought assault and using abusive language against the plaintiff, the plaintiff sued the defendant for assault.
Held
The playground was in the position of the club and not the position of the defendant, therefore he was liable.
5. Defense of Necessity
The defence of necessity in criminal law is where the defendant is arguing that it was necessary for them to commit a crime. For example, where a prisoner escapes from a burning prison he may raise the defence of necessity as it was necessary for him to escape. The defence of necessity often operates where the defendant has two alternatives either commit a crime or suffer or cause another extreme hardship. According to Sir James Stephen, there are three requirements for the application of the defence of necessity:
(i) the act is needed to avoid inevitable and irreparable evil;
(ii) no more should be done than is reasonably necessary for the purpose to be achieved;
(iii) the evil inflicted must not be disproportionate to the evil avoided.
Cases;-
i-R v Dudley and Stephens (1884) 14 QBD 273
Facts
The two defendants became shipwrecked by a storm. They were forced to abandon their ship and were stranded in a small emergency boat with two others including a young cabin boy. They had been stranded for 18 days. The food had ran out 7 days earlier and they had had no water for five days. Dudley and Stephens agreed to draw straws to see which one of them would be killed so that the others could eat him. The third man did not agree and the cabin boy was by this time too weak to take part in any decision. As the third man had not agreed, the defendants decided that it would be better to kill the cabin boy as he was close to death and he had no family. Dudley and Stephens cut the cabin boys throat. He was too ill to put up any resistance. All three men fed on the boy and were rescued four days later. On their return to England Dudley & Stephens were charged with the boy’s murder.
Held:
It was held that the defence of necessity could not be raised for murder offences. The defendants were convicted of murder. They were sentenced to death but then granted a pardon by the Crown and served 6 months imprisonment.
ii-R v Bourne[1938] 3 All ER 615
Facts
A 14 year old girl was raped by five soldiers and became pregnant as a result. An eminent gynaecologist performed an abortion on her and was charged with the offence of conducting an illegal abortion. He was acquitted. Mr Justice Macnaghten:
Held:-
Appeal allowed
“If the doctor is of the opinion, on reasonable grounds and with adequate knowledge, that the probable consequence of the continuance of the pregnancy will be to make the woman a physical or mental wreck, the jury are entitled to take the view that the doctor is operating for the purpose of preserving the life of the mother”
iii-R v Quayle & ors [2005] 1 WLR 3642 Court of Appeal
Facts
Five appeals were jointly heard with one Attorney General reference. Each case was concerned with the applicability of the defence of necessity in relation to offences involving, possession, cultivation, production and importation of cannabis. In all the appeals the appellants argued that the cannabis was for medical purposes for the relief of pain for various medical ailments including HIV, Multiple sclerosis and severe back pain.
Held:
Neither the defence of necessity nor duress of circumstances was applicable in such circumstances.
iv-R v Altham [2006] 1 WLR 3287 Court of Appeal
Facts
The appellant had been in a serious car accident 14 years before he was charged. The accident left him with severe injuries to his hip and he experienced chronic pain ever since. He tried a number of forms of pain relief prescribed by his doctor which either proved ineffective or had intolerable side effects. He eventually found that cannabis was the most effective form of pain relief and used it on a regular basis. He was charged on a single count of possession of 5 grams of cannabis resin. He pleaded guilty as the judge had ruled that the defence of necessity could not be raised following the decision in R v Quayle & ors. He appealed against the judge’s ruling arguing that denial of the defence amounted to a breach of Art 3 of the European Convention of Human Rights in that his medical symptoms amounted to inhuman or degrading treatment and if the only way to avoid the symptoms is to break the criminal law and risk prison, then the state is subjecting him to inhuman or degrading treatment.
Held:-
The appeal was dismissed and his conviction upheld.
Whilst the defence of necessity is often used to protect medical professionals perceived to be acting in the best interest of their patients, the defence of necessity has been denied in self-medication cases involving cannabis.
6. Defense of Mistakes
Where the defendant acts under a mistaken belief of the circumstances they may be afforded the defence of mistake. Where a defendant acts under such a mistake, the mistake prevents them forming the mens rea of the crime and thus mistake is not really a defence as such, but relates to the absence of the elements of establishing liability.
Cases;-
R v Tolson (1889) 23 QBD 168
Facts
The appellant married in Sept 1880. In Dec 1881 her husband went missing. She was told that he had been on a ship that was lost at sea. Six years later, believing her husband to be dead, she married another. 11 months later her husband turned up. She was charged with the offence of bigamy.
Held:
She was afforded the defence of mistake as it was reasonable in the circumstances to believe that her husband was dead.
Classification of Mistakes
A- Mistake of Law - A mistake as to law will not generally suffice, for the defence of mistake, since ignorance of the law is no excuse (Ignorantia juris non excusat).
Case;-
R v Lee [2000] EWCA Crim 53 Court of Appeal
Facts
The appellant had failed a breath test. He looked at the test result and saw an air bubble which pushed the test over the limit. When the officer tried to arrest him for drink driving the appellant punched him. He was convicted of assaulting a police officer with intent to resist arrest under s.38 Offence Against the Person Act 1861. He appealed contending that he had a genuine belief that the arrest was unlawful.
Held:
The mistake was one of law and therefore was of no defence.
Although a mistake of civil law may be sufficient to find the defence of mistake
Case;
R v Smith [1974] QB 354 Court of Appeal
Facts
The appellant was a tenant in a ground floor flat. With consent of the land lord, he purchased some electrical wiring, roofing equipment, wall panels and flooring and installed them into the conservatory. By installing these items, in law they become the property of the land lord. as they form part of the flat. When the tenancy came to an end, the appellant removed the wiring which involved damaging the wall panels. He was convicted of criminal damage and appealed contending he lacked the mens rea of the offence as he believed that since he had paid for the panels he had a right to damage them.
Held:
His conviction was quashed. He lacked the mens rea of criminal damage as he believed the property he damaged belonged to him. It was irrelevant that the mistake was one of law rather than fact as it related to a mistake of civil law rather than criminal law and there was no need to demonstrate a reasonable belief, it being sufficient that it was honestly held.
B- Mistake of Facts – A mistake of fact is not also suffice for defense of mistake, or its not ground exemption for the liability in tort.
Case;-
DPP v Morgan [1976] AC 182 House of Lords
Facts
The three appellants were convicted of rape following a violent attack. They had been out drinking for the night with a fellow officer in the RAF who invited them back to his house to have sexual intercourse with his wife while he watched. According to the appellants, he had told them that his wife would be consenting, although she would protest in order to enhance her sexual arousal. The circumstances were such that the wife had made it quite clear she was not consenting and she sustained physical injuries requiring hospital treatment. The trial judge had directed the jury that the defendants' belief in consent had to be reasonably held. The jury found them guilty. They appealed contending there was no requirement that the belief need be reasonably held.
Held:
The belief must be genuine and honest. There was no requirement that the belief was reasonable. The convictions were upheld, however, as the House of Lords was of the opinion that no jury properly directed would have considered the belief of the defendants in the circumstances as genuine.
7. Statutory Authority as a defence.
A statutory authority is a body set up by law which is authorised to enforce legislation on behalf of the relevant country or state. They are typically found in countries which are governed by a British style of parliamentary democracy. E.g;- Electricity Company. Post Office, Railway Company.
Case
Vaugham v. Taff Vale(1980)
Facts;
The respondent railway company had been authorised to run the railway. One day sparks from an engine set fire to the appellant's woods which was on the adjoining land and thus great damage was caused to the appellant.
Held
Since the respondent had taken proper care in running the train they mere not liable.
Hummer Smith Rail co v Brand(1869)
Facts
The defendant had been authorised to run a train on land. The plaintiff had a land near the railway line, due to vibrations, noises and sparks caused by running of the train, the value of the plaintiff's property was considerably depreciated. The plaintiff sued the Railway Company for the damages.
Held
The damages done to the plaintiff was due to the running of the train which is authorised by the statute, thus railway company not liable.
8. Judicial acts as a defence.
The judicial officers, judges, magistrates are exempted from any liability done by them in the discharge of their judicial duties even if they did it with malice. This is to enable the judges discharge their judicial functions independently without fear and favour.
Case;-
9. Parental Authority as a defence
Parents and guardian had an authority to chastise their children, A teacher has also this power over his students.
Case;-
Rex v New Port(1929)
Facts
The teacher punnished the student by canning five times for smocking outside the premises of the school, according school rules smocking was prohibited within and outside the school premises.
Held;
It was held that when a father sends his son to school he authorised the teacher to give him reasonable punnishment for the violation of school rules.
10. Acts causing slight harm(de minimis non curat lex)
De minimis is a Latin expression meaning about minimal things,
