SELF HELP/ABATEMENT
Self help is
a form of remedy whereby a person takes the law into his /her hands so as to
solve a nuisance, trespass or other tortuous acts. The law does not enforce
such a remedy and citizens who take the law into their hands do so at their own
peril and run the risk of countervailing claims of trespass and conversion.
This remedy saves much time and resources for taking matters to court.
Some of the
instances in which self help may apply include:
1)
Self defense
This is the
act of repelling an attack or a threatening attack that may constitute trespass
to a person. Self defense is applicable in reasonable circumstances and with
use of reasonable force
Cockroft vs Smith (1705)2 Salk 640
The clerk of a court sued an attorney
for biting off his fore finger in scuffle in court. Holt CJ held that in itself
it was no defense that the claimant had run his fingers downwards the
defendant’s eyes for a man must not in a case of a small assault, give a
violent or unreasonable return.
This remedy
may also apply when resisting unlawful arrest.
Where one
resists arrest, various factors are to be considered to determine if he is
liable to any tort.
a) Whether he could escape
b) Whether he resisted with the most
reasonable available force
c) Whether he continued using force even
after the condition cooled.
However,
there need not be exact proportion between attack and response. Take an example
of a case where a man who violently grabs a lady, squeezes her against the wall
and starts kissing her. The lady is justified to use a pair of scissors to tear
his hand if that is the only means she can use to defend herself.
2)
Defense of another person
Some
instances in which one may defend another include:
a) When an employee strikes someone in
defense of his employer.
b) A wife may also defend her husband if
need be.
c) A man is also entitled to defend any
member of his family or household from danger under favorable circumstances.
3)
Defense of property
A person may use reasonable force to defend land or chattels in his
possession against any person threatening to commit or actually committing
trespass to the property.
4)
Abatement
This is a form of self help in which claimants intervene themselves to stop
a nuisance.
Abatement must be
exercised within a reasonable time after learning of the nuisance and usually
requires
Notice to the defendant
and the defendant’s failure to act. Reasonable fo0rce may be used to employ the
abatement and a plaintiff may be liable for unreasonable or unnecessary damage.
An instance in which
abatement may apply is where dead tree limbs extending dangerously over a
neighbor’s house may be removed by the neighbor in danger after notifying the
offending land owner of the nuisance. In cases where an immediate danger to health,
property, or life exists, no notification is necessary.
Delaware Mansions Ltd
and others Vs Westminster City council CA July1999
In 1989, structural engineers
reported that damage had occurred to some blocks of flats and that a plane
tree, which was owned by Westminster City council, was responsible for that
damage. The engineers recommended under punning of the flats or removal of the
tree. The council refused to remove the tree. The flat was sold in June 1990 to
the second appellant company. The first appellant company was formed, and owned,
by tenants to provide maintenance and service to the flats.
These companies were seeking damages
from Westminster City Council for the cost of remedial works carried out to
repair the foundations of the flats which cost some 570,735 pounds.
However, the claim was dismissed on
the grounds that they could not claim for the damages b because the damage had
occurred before they had become the new owners of the flat.
The plaintiffs appealed and won. Pill
LJ said:
“Thus, where there is a continuing nuisance, the owner is entitled to a
declaration to abate the nuisance, to abate the nuisance
to damages for future injury and to an injunction.”
And “If the council had agreed to
remove the tree when asked, the damages would have been very small. In the
circumstances, which are probably
unusual, the fact that the nuisance existed before the second appellant became
the owner is irrelevant.”
My take on self help is that it is a
convenient remedy in cases of emergency and it also saves time and resources of
following the normal court procedure. Some of the most trivial issues should
not be taken to court so I see no need for revision of the law on self help.
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