SELF DEFENCE (LAWYERS/LAW STUDENTS only)?
Monday, September 15th, 2008 at
8:46 pm
JOKER asked:
If someone is shop drugs attacking a friend of yours, you jump in and hit the person to stop them from inflicting further damage, would this be a valid defence of self defence should you be sued by the party you hit – ie. seeking damages.
Yeah its more of a common sense thing– ie. preventing a crime provided that it isnt too excessive
If someone is shop drugs attacking a friend of yours, you jump in and hit the person to stop them from inflicting further damage, would this be a valid defence of self defence should you be sued by the party you hit – ie. seeking damages.
Yeah its more of a common sense thing– ie. preventing a crime provided that it isnt too excessive
Tagged with: Common Sense • Damages • Defence Lawyers • Law Students
Filed under: Attorney FAQ
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JURIST-Law Study Guides. Serious Life threateng might have to shoot them….
If a 3rd party witness is present and willing to testify to it then they don’t have much of a case. Otherwise if it is just between the three of you then he could lie and claim for damages.
If you go for a jury trial then it depends on how you and your lawyer will present the case and the jury picked. If you have a biased jury then you’re out of luck or might get lucky if they believed you.
You leave out too much important information.
Are all parties adults? Is any form of deadly weapon used in the assault on your friend? Is your friend a person (woman or a smaller person or elderly) subject to serious bodily harm? Would a reasonable person consider you hitting the attacker a practical defense option or could it be construed as excessive action; more than necessary regarding the situation and participants?
Assuming the attacking party is an able bodied male adult, a defensive action to assist a person in need of your assistance would carry much weight, if sued by the criminal. Assault is a crime, therefore, you are simply trying to prevent (stop) a crime in progress. In certain countries, you can subdue a criminal, if necessary to perform a citizen’s arrest, until authorities can be contacted and arrive at the scene.
Also, you would want to try to get appropriate information from good witness, if available and willing to testify, and, if necessary, a good attorney.
It wouldn’t be “self” defence. It would be a valid defence only if the amount of force you used was proportionate to the level of threat (you said “attacking”, which is very vague). If the force you used was excessive, you could be sued.
Even in circumstances where the accused has a defence of self defence to a criminal charge, he may still be held liable in the tort of negligence in respect of the same act (Revill v Newbery – [1996] 2 WLR 239).
Thus, where an occupier of premises comes across a burglar on his land he cannot act with total disregard to the burglar’s safety, any more than one could attack an attacker, and the maxim ex turpi causa non oritur actio (no action will arise from a bad cause) cannot be invoked to provide the occupier or good samaritan with what would amount to a complete defence to the burglars/attackers claim for damages. However, even though such a complete defence may not be available, the courts are likely to reduce the amount of the claimant’s award on the ground of contributory negligence. Trespass against the person is another possibility.
The law in the UK and the US are quite similar.
U.S. laws governing self-protection derive from the ancient English common law that held that a medieval Briton was obliged to retreat until his back was literally to a wall or a ditch before he was justified in fighting off an assailant. This so-called “retreat law” has been substantially modified in American courts, which have generally ruled that though a person must attempt to avoid trouble, he is not legally bound to flee if such action would increase his peril. Only Texas law ignores retreat altogether and permits an attacked person to stand and fight it out under any circumstances.
In the US and UK, once the fighting has begun, the law becomes a matter of interpretation. An attacked person is legally permitted to exert only as much force as is necessary to repel the aggressor. The word ’self’ in self-defence is rather misleading because any person has a common law right (some might say an obligation) to prevent crime, whether that be to stop an assault, or otherwise.