Defences

Trespass - Tort Law

Is Provocation a Defence?

As it stands, where an attacker is provoked by the victim, the sum claimable in exemplary damages (for particularly bad behaviour by the plaintiff) is reduced proportionally to the degree of provocation. That is where the law stops with regard to provocation.

This author has published arguing differently. Starting with the fact that commonsense dictates that provocation should be a complete defence to trespass to the person, so that compensatory damages can be reduced also, and even, a claim defeated altogether in circumstances of sufficient severity. Everyone knows that to attack or threaten another person is a lesser moral offence, if it was in response to a seriously provocative act on the part of the victim. The law, however, sees this differently. In Fontin v Katapodis, it was ruled by the High Court that provocation is not available as a defence for the assailant. This ruling has held sway across the common law world and courts have continually expressed a high-minded attitude toward the use of violence. In short, DO NOT use physical contact as a solution to provocative (yet non-violent) behaviour or else you, your employer and/or your client, will be liable to an award of damages. The only other alternative is that you, yourself, will be criminally liable. (See the chapter on criminal law).

Importantly, because Fontin was a ruling of the High Court, no other court in Australia can overrule it. The author is of a view, however, that this law can and should be overruled by the High Court, but it would take a very serious case indeed and a strong argument to warrant going to the High Court to have a law from a prior decision overruled. The argument revolves partly around the basis on which Fontin and other similar cases have been decided, as well as contributory negligence, and policy arguments related to well known principles of human behaviour.

The application of this in civilian law enforcement is the same as that of false imprisonment, above. If faced with a confrontation, a person might be attacked, threatened or prevented from leaving if the other party is of poor character. The enforcement activity may present a lot of people with provocation, but they cannot rely upon that to mitigate their culpability. The same applies if a person acting in an enforcement role reacts badly in the same situation. Where the resulting harm is overwhelmingly serious and the quantum of damages warrants action at the High Court, an argument may lie to alter this law.

Self Defence

Acts taken in self defence must be proportional to the threat posed, and to and difference in the power of the parties. This applies equally whether the danger comes in the form of a mere threat or a physical attack. In tort law the opportunity to act in self defence is more restrictive than in criminal law. Going back to Fontin v Katapodis, the defendant was criticised by the court for three things:

The throwing of a piece of glass was a reaction out of proportion to the initial attack, being the throwing of a T-square.
Standing his ground and retaliating when he had the opportunity to move away from the plaintiff and avoid further attack.

The victim of an attack therefore must think carefully when under attack. If there is a viable alternative to counter-attack then the alternative will be required by law. Of course it is possible that running away, attempting to subdue the attacker without risking injury, or calling for help will be pointless if the attacker is determined or out of control. In those circumstances the law will permit you to protect yourself by the most prudent and proportional manner available.

If a person’s involvement in a physical altercation is a result of their job, as is often the case for security guards and body guards, then there is a very good reason for not vacating the incident scene in that other persons or property still need protection. There is a contract requiring threats be reduced and/or eliminated. Any law of self defence conflicting with this would make every contract of service and any contract of employment concerning security guards or body guards void for illegality of terms. A law requiring the breach of very common contractual terms which operate clearly in the public interest would be of no merit. Therefore a person employed for protective purposes should not be required by a court to absent themselves from danger when duty demands otherwise. This, however, does not justify a person escalating a violent situation, needlessly placing themselves in harm’s way, or declining to take a non-violent means of solving a problem at hand.

There is another rule which cannot be worked around. Whatever is done in self defence must be done in a proportional manner. While on the surface of it, this means a non-injurious blow simply cannot be responded to with a deadly weapon, the propensity of the attacker to escalate the attack is a logical consideration. If they happen to be highly skilled in martial arts or carrying a weapon, for instance, the need to decisive action increases proportionally.

In the case of Rosza v Samuels (see above) one of the issues was the lack of proportionality between a threat of being punched and a threat of death by stabbing or flaying. While the exact threat to cut Mr Drummond ‘to bits’ was not considered a credible threat taken verbatim, there was a credible threat underlying it to attack with a knife held by Mr Rosza. The court found that the threat actually conveyed was out of proportion to that which first had been made by Mr Drummond. Therefore Mr Rosza was guilty of tortuous assault.

As stated above, the principle is the same whether the tort being responded to is verbal or physical. Security guards occasionally carry handcuffs if licensed to do so, which can be immensely useful when dealing with an offender who will not recognise the need to desist. Where such an option is available a court is likely to view it as necessary to use in preference to belaying an offender at the risk of injury.

Defence of Others

The law of self defence extends to defending not only oneself, but any other person, and is specifically applicable to the work of a security guard or body guard. It is lawful to intervene to the hurt or injury of an attacker who is attacking someone else. The same rule apply as in self defence – the threat must be credible or the danger real, what is done to repel the attack must be reasonable, and any other viable option short of counter-attack must be tried first.

Public Necessity, Private Necessity and Prevention of Suicide

The defence of necessity crosses over many different laws, protecting people who have acted in breach of a law for purposes of readily apparent emergency. However authority on it is not entirely certain and it is seldom used. Necessities can include preventing suicide or serious harm to or from a third party. It would not include any reason that would be seen as trivial or capricious. A good case on this is In Re F, which dealt with a psychiatric patient who was sterilised to prevent unplanned pregnancies, but not in a fit state of mind to give or withhold consent. To lunge at and tackle a person unexpectedly would ordinarily be considered battery. But if done to clear the person from the path of an oncoming motor vehicle, it is considered a necessity. Whereas you would normally need consent – express or implied – there is no need where a readily apparent necessity arises.

The two main differences between this defence and the defence of others defence are firstly, that here the would-be plaintiff is not attacking anyone else. Secondly, it covers damage done to property for preventative purposes, not just in responding to an offence already in action. This defence operates where a defendant is compelled, or feels compelled, to act contrary to the law, but only if the need is clear.

Fontin v Katapodis (1962) 108 CLR 177.

Pingree, Andrew, Provocation as a Complete Defence to Trespass to the Person (2010) 15:2 DLU 205.

Fontin, above n14.

Rozsa v Samuels [1969] SASR 205.

In Re F (Mental Patient: Sterilisation) [1990] 2 AC 1.