• Mr. Mir Adil Rashid

General Defences under Laws of Torts

INTRODUCTION

When action is brought by a plaintiff against the defendant for a particular tort or violation of legal rights, resulting in legal damages and thereby successfully proves the essentials of a tort, the defendant is held liable. However, there are a few exceptions in which the defendant can plead some defences which can help him in absolving from liabilities. So we can say that the general defences or a set of defences or excuses that you can undertake to escape Liability. The general defences in tort are listed below:-

  1. Volenti non-fit injuria

  2. Plaintiff, the wrongdoer

  3. Inevitable accident

  4. Act of God

  5. Private defence

  6. Mistake

  7. Necessity

  8. Statutory Authority


Volenti non fit injuria / the defence of Consent:

A person has no remedy in tort where he consented to the infliction of some harm upon himself. The consent of a person serves a good defence against him if he had voluntarily agreed to suffer some harm. If a person voluntarily waives or abandons any right he cannot enforce that right. E.g you cannot sue a person for trespass when you have invited him similarly you cannot sue the surgeon after submitting to a surgical operation because you have expressly consented to these activities.


The consent may be implied or inferred from the conduct of parties in one of the cases Hall vs Brooklands Auto Racing club [(1932) All E.R Rep. 208] the plaintiff was a spectator in a motor car race being held at Brooklands and during the race, there was a collision between two cars one of which was thrown among the spectators and the plaintiff was injured. The court held in this case that the plant impliedly took the risk of injury and in sport the danger is inherent and foreseeable, therefore the defendant was not held liable.


In Smith vs Baker [(1891) A.C 325] the House of Lords held in this case that the mere knowledge of risk without the assumption of it, in such cases the maxim volenti non fit injuria cannot be applied.


Plaintiff, the wrongdoer

The defendant is excused by the law when the act done by the plaintiff is illegal or wrong. This defence is based on a Latin Maxim "Ex turpi causa non oritur action" which means no action arises from an immoral cause. This maxim not only applies to law of tort but also to contract, property, restitution and trusts. In Bird vs Holbrook [(1828) 4 bing. 628] the plaintiff who was a trespasser over the defendant's land was entitled to recover damages suffered by him for injury caused by a spring gun used by the defendant without the notice in his garden.


Inevitable accident

Accident is an unexpected injury and could not have been avoided in spite of reasonable care by the defender; it is the inevitable accident. Inevitable accident is a mishap and its occurrence cannot be prevented even if care and attention is being taken by an ordinary or intelligent individual. Therefore it is a good defence if the defendant is able to prove that he neither intended to injure plaintiff na khud hi avoid the injury by taking prudent care.


In Case Brown v. Kendall ; the dogs of the plaintiff and defendant were fighting; the defendant tried to separate them in between; he accidentally hit the plaintiff in the eyes causing him some injuries. The court in this case held that the defendant is not liable as injuries suffered by the plaintiff is an incident which could not have been prevented and it was an inevitable accident.


In Case Stanley v. Powell [(1891) 1 QB 86 (QBD)] the plaintiff was employed to carry a cartridge for a shooting party and one of the members of the party fired at a distance the bullet after hitting a tree rebounded into the plaintiff's eye. The plaintiff sued the defendant but the Court in this case held the defendant is not liable in the light of circumstances of inevitable accident.


Act of God

Black's law dictionary defined an act of God as "An act occasioned exclusively by the violence of nature without any human intervention". The act of God or vis major or force Majeure may be defined as an event over which there is no control of human upon the act and damage is caused by the forces of nature, the act of God is a defence which can be used in many cases of Tort. It is beyond human imagination and cannot be prevented by human intervention. The act of God as a defence is a kind of inevitable accident and in the case of the act of God, the resulting loss arises out of the working of natural forces like storms, tempest, heavy rainfall and volcanic eruptions.


Three important it essentials are needed for this defence which includes:

  • Working of natural forces.

  • Extraordinary in nature.

  • No human intervention.

In Case Nichols v. Marshland [(1872) 2 EXD 1] the defendant has on his land a number of artificial lakes. Once there was an extraordinary rainfall as had been never witnessed in human memory which caused the banks of the lake to burst; the escaped water from the lakes carried away four bridges which belonged to the plaintiff. In an action by the plaintiff against the defendant, the Court held that the plaintiff's bridges were swept by the act of God and the defendant was not held liable.


Private defence

The private defence is most common among the general defences. Where a defendant uses reasonable force and not in excess of what is required under an imminent danger to protect his body or property or any other's property and harms another person where there is no time to report that authority it is known as is private defence. When a person or defendant uses the force which is necessary for self-defence he will not be held liable for the harm caused thereby.


Three conditions must be satisfied to use this defence:

  • There should be an imminent threat to personal safety or property.

  • The force used is absolutely necessary to repel the innovation should be used for.

  • The force used should be in proportion to the act committed.

In case Bird v. Holbrook [(1823) 4 Bing. 628,130 E.R. 91] the defendant, Holbrook set up a shooting gun trap in his garden in order to catch an Intruder who had been stealing from his garden without posting a warning. The petitioner, Bird chased an escaped bird into the garden, set off the trap and suffered serious injuries. The petitioner sued the defendant for damages. In this case, it was held that while setting traps are "man traps" can be valid as a deterrent when notice is also posted, but here defendants intention was to injure someone rather than scare them off, therefore the he was held liable.


Mistake

A mistake is of two types, the mistake of law and mistake of fact. When a defendant acts under a mistaken belief in one or other situation he may plead the defence of mistake. Both the mistake of fact and mistake of law is generally no defence in tort. When a person interferes willfully with the rights of another person it is no defence to say that he had honestly believed that there was some justification for the same when in fact no such justification existed. To enter in the land of another thinking that to be one's is trespass, similarly taking away the umbrella of any other person thinking that to be one's own in such a situation the defence of mistake cannot be taken.


In the case of Consolidated Co. V. Curtis [(1894) 1 Q.B. 495] the action of certain goods done by the auctioneer as was asked by his customer honestly believing that the goods belonged to the customer. The auctioneer paid the sale proceeds to the customer after the auction of goods. In fact goods don't belong to the customer but to other person. When a suit was filed by the true owner against the auctioneer, the auctioneer was held liable for a tort of conversion.


There is some exception to this rule wherein the defender may be able to avoid his liability by showing that he acted under an honest but mistaken belief.


Necessity

The Maxim "Solus Populi Suprema Lex" i.e. the welfare of people is the supreme law, explained clearly the defence of necessity. If an act is done by a person to prevent greater harm even if it was done intentionally such an act is not actionable and serves a good defence. Hence we can say that the act which causes certain damage can be excused when done to prevent the greater harm.


In the case of Carter v. Thomas the defendant was held liable for trespass who entered the plaintiff premises in good faith to extinguish a fire at which firemen had already been working.


In the case of Cope v. Sharp [(1891) 1 K.B. 496] the defendant in order to prevent the spread of fire to the adjoining land entered the plaintiff's land. The defendant in this case was not held liable for trespass because the defendant's act was considered to be reasonably necessary to save the game from real and imminent danger.


In the case of Leigh v. Gladstone , the petitioner Leigh was imprisoned and he went on hunger strike. In prison he was forcibly fed by warders; she sued prison staff for assault and battery. In this case, it was held the defence of necessity was good because if the prison authority had not fed the plaintiff, she would have died.


Statutory Authority

The defendant cannot be held liable for the damages resulting in the course of an act if an act is sanctioned by statutory enactment or law passed by the legislature. Or in other words, we can say that when an act is done under the authority of an act it is a complete defence and the injured party has no remedy except for claiming such compensation as may be provided by the statute and the damage resulted from the act is not actionable. E.g. in the construction of the railway track, there will be interference with the private land or there may also be some incidental harm due to noise, smoke, emission of sparks and vibrations. But this does not give licence to the authorities to do what they want unnecessarily they must act in a reasonable manner.


In the case of Smith v. London and South Western Railway Co. [(1870) L. R 6 C.P. 14], the employees of a railway company left trimming of grass near railway line negligently. The sparks from engine set the material on fire and subsequently, the fire was carried to the plaintiff's cottage, the cottage was burnt. In this case, the company was held liable since it was a case of negligence.


The author is pursuing BA.LLB at School of Legal Studies, Central University of Kashmir.


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