General Defences in Tort

General Defences in Tort

Introduction

General defences are those defences which are a set of defences or ‘excuses’ that undertake to escape liability in tort. But to not escape liability there must be action against the defendant for a particular tort and providing the existence of all the essential of that tort, the defendant would be liable for the same. In tort when a plaintiff brings an action against the defendant for violation of legal right i.e. legal damage, the defendant is held liable.

However, there are some general exceptions in which the defendant can plead some defences which can help him in absolving from liabilities and they are called General Defence.

Meaning

Generally, when a plaintiff brings an action against the defendant for a tort committed by him, he will be held liable for that wrong but there is some defence which can be taken by the defendant to absolve himself from the liability arising out of the wrong committed. And they are called General Defences in the law of tort.

Following are General Defences in the law of tort

  • Volenti non fit injuria or the defence of ‘Consent
  • The wrongdoer is the plaintiff
  • Inevitable accident
  • Act of god
  • Private defence
  • Necessity
  • Statutory authority
Volenti non fit injuriaor the defence of ‘Consent’

 If a plaintiff has given free consent to defendant for a wrongful act with free consent, either express or implied, under no pressure or fraud or coercion and the plaintiff voluntarily accepted the risk, then he has no right to sue the defendant. In simple meaning, a plaintiff voluntarily suffers some harm. Hence, he has no remedy for that under the law of tort and he is not allowed to complain about the same. For the defence to be available the act should not go beyond the limit of what has been consented.

In the case of Hall v. Brooklands Auto Racing Club [1933] 1 KB 205, the court pronounced that the defendant held not liable because the plaintiff knowingly undertook the risk of watching the race. It is a type of injury which could be foreseen by anyone watching the event.

In the case of Padmavati v. Dugganaika (1975) 1 Kam LJ 93, The court held that the principle of Volenti non fit injuria was not applicable here and the master of the driver could not be made liable as it was a case of a sheer accident and the strangers had voluntarily got into the vehicle.

Consent

In a general sense, consent means permission for something to happen or agreement to do something. In the law of tort it means that when a tort is committed i.e. defendant interfered with plaintiff’s life or property, a plaintiff’s consent will excuse the defendant of the wrongdoing. Although whatever the defendant’s conduct like immoral or harmful but when the plaintiff allows these interferences to occur, then the defendant is not considered to have committed a tort. This means that consent occurs when the plaintiff willingly displays to participate in the defendant. It may be express or implied.

In the case of v. Williams [1923] 1 KB 340, the defendant was a singing coach. He told one of his pupils that he was performing an act to open her air passages to improve her singing but he was having sexual intercourse with her. It was held that her consent was vitiated by fraud. This case has been used to illustrate the validity of consent which has been obtained by unfair means.

In Nettleship v. Weston Lor [1971] 3 WLR 370

Lord Denning said: “Knowledge of the risk of injury is not enough. Nothing will suffice short of an agreement to waive any negligence claim. The plaintiff must agree expressly or impliedly to waive any claim for any injury that may befall him due to the lack of reasonable care by the defendant: or more accurately due to the failure by the defendant to measure up to the duty of care which the law requires of him”. And also, when the plaintiff giving consent, they should have complete knowledge of the full nature and extent of risk involved.

When a plaintiff himself is the wrongdoer

ex turpi causa non oritur action” it means that no action arises from an immoral cause. Hence in this defence an unlawful act of the plaintiff itself might lead to a valid defence in torts. But it didn’t mean that if a defendant contends that the plaintiff himself is a wrongdoer and hence not entitled to damages then it does not mean that the court will declare him free from the liability.

In the case of Ashton v. Turner [1981] l QB, the claimant was injured when the defendant crashed the car in which he was a passenger. The crash occurred after they both had committed a burglary and the defendant, who had been drinking, was driving negligently in an attempt to escape. Justice Ewbank dismissed the claim holding that as a matter of public policy the law would not recognize a duty of care owed by one participant in crime to another. He also added that even if there was a duty of care the claimant had willingly accepted the risk and knowingly sat in the car with the defendant.

In the case of National Coal Board v England Lord Porter [1954] AC 403 (HL), the court expressly located the ex turpi causa maxim in a public policy rationale. Thus, wrongdoing on the part of the plaintiff would not necessarily preclude him from bringing a claim where the court could be satisfied that to provide redress for the plaintiff would not offend against public policy.

Inevitable Accident

An inevitable accident is one of those which could not have been possibly been avoided by the exercise of due care and caution. Hence it is a mishap.

 Charlesworth on Negligence describes an ‘inevitable accident’ as follows: – “There is no inevitable accident unless the defendant can prove that something happened over which he had no control and the effect of which could not have been avoided by the exercise of care and skill.’

In the case of A. Krishna Patra v. Orissa State Electricity Board AIR 1997  Orissa 109, The Orissa High Court defined ‘Inevitable accident’ as an event which happens not only without the concurrence of the will of the man but in spite of all efforts on his part to prevent it.

In the case of, Stanley v. Powell [1891] 1 QB 86 (QBD), the plaintiff was employed to carry a cartridge for a shooting party and when they had gone pheasant-shooting, a member of the party fired at a distance but the bullet, after hitting a tree, rebounded into the plaintiff’s eye. When the plaintiff sued it was held that the defendant was not liable in the light of the circumstance of an inevitable accident.

Act of God

Also known as Vis Major. It is defined as circumstances which no human foresight can provide against any of which human prudence is not bound to recognize the possibility, and which when they do occur, therefore are calamities that do not involve the obligation of paying for the consequences that result from them. Hence it is a defense in which the defendant has no control over occurs and the damage is caused by the forces of nature. It is beyond human imagination and could not be prevented by human intervention. Therefore, in such cases, the defendant will not be liable in tort law for such inadvertent damage.

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 Essentials of Act of God

  • The act should result from a natural force.
  • No human intervention.
  • Extraordinary in nature

Black’s Law Dictionary defines an act of God as “An act occasioned exclusively by the violence of nature without the interference of any human agency.” A natural necessity proceeding from physical causes alone without the intervention of man. It is an accident which could not have been occasioned by the human agency but proceeded from physical causes alone.”

In the case of Ryde vs. Bushnell (1967), Sir Charles Newbold observed, “Nothing can be said to be an act of God unless it is an occurrence due exclusively to natural causes of so extraordinary nature that it could not reasonably have been foreseen and the result avoided”.

In the case of Tennant v. Earl of Glasgow (1864) 2 M (HL) 22 , The House of Lords observed, “Circumstances which no human foresight can provide against, and of which human prudence is not bound to recognize the possibility, and which when they do occur, therefore, are calamities that do not involve the obligation of paying for the consequences that may result from them” fall under the category of Act of God.

Private Defence

Private defence is the most common and important defence. In this defence when a defendant tries to protect his body or property or any other person’s property, take a step and harms another person by using reasonable force under an imminent-danger due to no time to report instantly to the authority known as Private Defence.

Essential for private defence are-

Imminent Danger

If there is no time to call the appropriate authority and take immediate action to save the life or property of the defendant or some other person’s property.

Proportional Force

It should be a reasonable force while the defendant protecting his life or property or some another’s property.

In the case of Bird v. Holbrook 4 Bing. 628, 130 Eng. Rep. 911 (1825), the defendant created a trap of spring-gun in his garden to catch an intruder who had been stealing from his garden. But he didn’t post or hand any type of warning board in his garden, the plaintiff chased an escaped bird into the garden and suffered serious damage to his knee. Plaintiff sued for damage. The court held that while setting traps or “man traps” can be valid as a deterrent when notice is also posted, D’s intent was to injure someone rather than scare them off. Hence, he was held liable.

  In the case of Morris v. Nugent 7 Car. & P. 572, the defendant was passing by a house, the plaintiff’s dog came and bit him. When the defendant turned around and raised his gun the dog ran away but he shot the dog. Court held that the defendant’s act was not justified as there was no real threat at the time the defendant shot and so he could not claim the plea of private defence.

Necessity

It means that if in order to avoid major loss or harm, a defendant can cause lesser harm that is justified. Hence the act of defendant may not be legal but if it is to avoid major damage then he can plead this defence.

Essentials for majoring Necessity-

  •  When the defendant acts to avoid a significant risk of harm.
  • His causing of harm should be justified.

In the case of Dhania Daji vs. Emperor (1868) 5 BHC (CrC) 59),the accused was a toddy-tapper. He observed that toddy was being stolen from the trees regularly. To prevent it, he poisoned toddy in some of the trees. He sold toddy from other trees. However, by mistake, the poisoned toddy was mixed with another toddy, and some of the consumers were injured and one of them died. He took the plea of necessity however it was rejected and he was prosecuted.

In the case of Vincent v. Lake Erie Transportation Co 109 Minn. 456, 124 N.W. 221, 1910 Minn., the court held that the defendant is liable for trespass due to private necessity, the defendant used the plaintiff’s property to preserve his own and is therefore liable for resulting damages to the plaintiff.

Statutory Authority

According to this Statutory  Authority, if an act is sanctioned by a statutory enactment or a law passed by the legislature, then the defendant cannot be held liable for the damages resulting in the course of such an act. The powers conferred by the legislature should be exercised with judgment and caution so that no unnecessary damage is done, the person must do so in good faith and must not exceed the powers granted by the statute otherwise he will be liable.

In the case of Kasturi Lal v. State of UP, AIR 1965 SC 1039, the Supreme Court rejected the plaintiff’s claim, on the ground that “the act of negligence was committed by the police officers while dealing with the property of Ralia Ram, which they had seized in the exercise of their statutory powers.

The power to arrest a person, to search him and to seize property found with him, are powers conferred on the specified officers by statute and in the last analysis, they are powers which can be properly categorized as sovereign powers; and so, there is no difficulty in holding that the act which gave rise to the present claim for damages has been committed by the employee of the respondent during the course of its employment; but the employment in question being of the category which can claim the special characteristic of sovereign power, the claim cannot be sustained.”

General Defences in Tort

Also Read: Malice in the Law of Torts

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