Private Defense
The word “defence” bears several meanings in the tort context and a great deal of confusion has been
spawned of a general failure by courts and commentators to make their intended meaning clear.First, it
is sometimes used to refer to any argument that persuades the court to find
that the defendant is not liable. So understood, the word “defence” encompasses “absent element
defences”.
Absent element defences are denials by the defendant of an element of the tort in which the plaintiff
sues. A defendant advances an absentelement defence when, for example, he denies that he is the tort
feasor, denies that his impugned act was voluntary, denies that he was at fault when proof of fault is
required, or denies that the plaintiff suffered damage when damage is the gist of the tort in which the
plaintiff sues.
In a second and stricter sense, the word “defenses” refers only to rules that, when enlivened, result in a
verdict for the defendant even if all of the ingredients of the tort that the plaintiff contends was
committed against him are present. A defendant invokes a defence within this meaning of the word
when he argues along the
following line: “Even if I committed a tort, judgment should nevertheless be entered in my favor
because of rule so and so. Only “affirmative defenses” count. Affirmative defenses include absolute
privilege, abuse of process, arrest, distress, honest opinion, immunity, limitation bars, necessity,
qualified privilege, recapture of land or chattels,res judicata and self-defenses. Defendant who relies on
any of these rules seeks to avoid liability not by denying the plaintiff‟s allegations but by going around
them. Defense according to Winfield and Jolowicz:“A claimant who fails to prove the necessary
ingredients of the particular tort or tort son which he relies will, of course, fall in his action. Even if he
does prove these ingredients, however, he may still fail if the defendant shows that he is entitled to rely
upon some specific defenses. Some of these defenses are peculiar to particular torts.”These defenses
are called “specific defenses”. While other defenses are broader inscape and can be applied by a
defendant on a more pervasive scale as a defence to various torts. These defenses are called “general
defenses.
Plaintiff Default.
Rylands v Fletcher [1868] UKHL 1 was a decision by the House of Lords which established a new area of
English tort law. Rylands employed contractors to build a reservoir, playing no active role in its
construction. When the contractors discovered a series of old coal shafts improperly filled with debris,
they chose to continue work rather than properly blocking them up. The result was that on 11
December 1860, shortly after being filled for the first time, Rylands’s reservoir burst and flooded a
neighbouring mine, run by Fletcher, causing £937 worth of damage.
