General Defences under Law of Torts

What are general defences under law of torts?

Meaning of General Defences under the Law of Torts: – When a plaintiff takes action against the defendant for an tort committed by the defendant, he shall be held liable for it, if all the necessary material necessary for that wrong are present. But there are some defences available to the defendant by which he can free himself from the liability of the wrong done. These are known as general defences under the law of torts. Therefore in some cases, the defendant can avoid liability by taking the plea of the general defences available under law of torts.

General defences are considered a collection of defences or excuses that the defendant undertakes to flee liability charged, but if the action has undergone a selected set of conditions that deals with the defences under the law of torts.

Before we proceed to evaluate the circumstances in which defence can be used in any tort case, it is absolutely necessary to understand what the word “defence” means. The term “defence” has several meanings in the context of tort and has caused much confusion due to the general failure by courts and commentators to clarify its intended meaning.

General Defences under Law of Torts

The general defences under the law of torts are given as follows:

  1. Voluntary Non-Fit Injuria or Defence of ‘Consent’
  2. Plaintiff is the Wrongdoer
  3. Inevitable accident
  4. Act of God
  5. Private Defence
  6. Mistake
  7. Necessity
  8. Statutory Authority

What is Voluntary Non-Fit Injuria?

Meaning of Volenti Non Fit Injuria: – Voluntary Non Fit Injuria means, when the plaintiff voluntarily suffers any harm, then he has no remedy for that under the law of tort and he is not allowed to complain about the same. For example, once you invite your relatives to your house then you can not sue them on the costs of trespass, doctors can’t be sued after the surgery done by them.

In volenti non fit injuria, if a plaintiff gave his consent to a wrongful act with free content, either express or implied, under no pressure of fraud or coercion, with voluntary acceptance of risk, then he has no right to sue the defendant. Also, there should be a duty on behalf of others.

There are 2 essential elements in this defence: –

  • The plaintiff has the knowledge of the risk
  • The plaintiff with the knowledge of risk has voluntarily agreed to suffer the harm.

The consent must be free: – For this defence to be available it is important to show that the plaintiff’s consent was freely given. If consent has been obtained through compulsion or fraud, it is not a good defence. Consent must be given to the work done by the defendant. For example, if you invite someone to your home for dinner and he enters your bedroom without permission he will be liable for trespass.

In case a person gives his consent to doing of an act which leads to him getting injured, then even if an injury is caused by the other person, he cannot claim any damages from that person because the act was one for which he voluntarily consented. The consent of the plaintiff acts as a defence and this defence is called volenti non fit injuria which means to a willing person no injury happens.

Illustration– If ‘A’ has a bike whose brakes do not work and ‘B’ knowing about the conditions of the bike still chooses to sit on it with ‘A’ driving it and due to the failure of such brakes they both sustain injuries in an accident, ‘B’ cannot claim relief from ‘A’ because he had voluntarily consented to sit on the bike.

In Hall vs. Brooklands Auto Racing Club, the plaintiff was a spectator of a car racing event and the track on which the race was going on belonged to the defendant. During the race, two cars collided and out of which one was thrown among the people who were watching the race. The plaintiff was injured. The court held that 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. The defendant was not liable in this case.

Some examples of this defence are: –

  • You cannot sue your guests for trespassing when you invite someone to your home;
  • If you agree to a surgical operation, you cannot sue the surgeon for it; And
  • If you agree to the publication of something you knew about, you cannot sue it for defamation.
  • In sports a player is considered ready to take any loss during the course of the game.
  • No spectator shall be allowed to claim compensation for any loss caused to him in the game of cricket.

When plaintiff is the wrongdoer?

Meaning of Plaintiff is the wrongdoer: – Sometimes the defendant can take the defence, when the plaintiff is the wrongdoer. There is a maxim “Ex turpi causa non oritur actio” which says that “from an immoral cause, no action arises”. The law excuses the defendant when the act done by the plaintiff itself was illegal or wrong. If the grounds of action by the plaintiff are unlawful, he will not succeed in his actions and cannot recover damages.

For Example: – ‘A’ has the duty to maintain an overbridge which was not in a good condition, ‘B’ the plaintiff was getting goods which were beyond the permissible limit and while, the truck was on the bridge, the bridge shaked and the plantiff suffered losses. It was held that the Plaintiff also acted wrongly in this case.

In the case of Bird v. Holbrook, the plaintiff was entitled to recover damages suffered by him because of the spring-guns set by him in his garden with none notice for the identical.

If a defendant claims that the plaintiff himself is the wrongdoer and is not entitled to damages, it does not mean that the court will declare him free from liability but that he will not be liable under this head.

What is Act of God under law of torts?

Meaning of Act of God: – An act of god is an unforeseeable natural phenomenon. Act of god is something which involves no human agency, which is not realistically possible to guard against, which is due directly and exclusively to natural causes and which could not have been prevented by any amount of foresight, plans, and care.

In the law of torts, an Act of God may be asserted as a type of intervening cause, the lack of which would have avoided the cause or diminished the result of liability (e.g., but for the earthquake, the old, poorly constructed building would be standing). However, foreseeable results of unforeseeable causes may still raise liability. For example, a bolt of lightning strikes a ship carrying volatile compressed gas, resulting in the expected explosion. Liability may be found if the carrier did not use reasonable care to protect against sparks regardless of their origins. Similarly, strict liability could defeat a defense for an act of god where the defendant has created the conditions under which any accident would result in harm. For example, a long-haul truck driver takes a shortcut on a back road and the load is lost when the road is destroyed in an unforeseen flood. 

The act of god serves as a good defence under the law of torts. It is also recognized as a valid defence in the rule of ‘strict liability’. Act of God and defence of inevitable accident may look the same but they are different. Some extraordinary occurrence of natural forces is required to plead the defence under the law of torts. The act of god is a kind of inevitable accident in which natural forces play their part and cause harm. For example, heavy rains, storms, tides, etc.

The essentials required for this defence are: –

  • Must be the work of natural forces;
  • Must be an extraordinary event, not an event that can be reasonably predicted and avoided.

In Nichols vs. Marsland, the defendant created an artificial lake on his land by collecting water from natural streams. Once there was an extraordinary rainfall, heaviest in human memory. The embankments of the lake got destroyed and washed away all the four bridges belonging to the plaintiff. The court held that the defendants were not liable as the same was due to the Act of God. 

What is Private defence under law of torts?

Meaning of Private defence under Law of Torts: – Private defence is a right available to every citizen of India to protect themselves from any external force that can result into any harm or injury. The law has permitted the protection of one’s life and property and for that, it has permitted the use of reasonable force to protect himself and his property. The right can be extended by an accused in some circumstances but only to a certain degree, which would not invalidate the right of private defence.

  • Use of force is justified for the purpose of self-defence only.
  • There must be an imminent threat to a person’s life or property.

While exercising this right one thing should be taken into consideration that the right of private defence can only be exercised if there is no time to call the police or no help can be provided by the state authorities in the given time i.e. aid from the state is not available. Any unlawful act committed by any person in course of self defence is not considered as an offence and does not, therefore, give rise to any right of private defence in return.

For example: – ‘A’ would not be justified in using force against ‘B’ because he believes that he will someday be attacked by ‘B’. The force used must be reasonable and to avert an imminent danger.

For example: – If ‘A’ tried to rob B’s house and ‘B’ simply drew his sword and beheaded him, then B’s act would not be justified and private defence could not be argued.

Section 97 of IPC states that every citizen is having this right subject to certain restrictions (mentioned in sec 99) to defend his own body or body of any other person, against; any offence affecting to the human body; the property whether immovable or movable, of himself or of any other person, against any act, which is an offence falling under the definition of robbery, theft, mischief, criminal trespass or which is an attempt to commit theft, robbery, mischief or criminal trespass.

What is Mistake under law of torts?

Meaning of Mistake under Law of Torts: – In general, Mistake, whether of fact or of law, is no defence to the action of tort. When any person wilfully interferes with the rights of others, he has no defence that he believed that his actions were justified. Likewise, no one under a mistake of fact defames someone or enters anyone’s property. When a defendant acts under wrongful belief in some or the other situation, he can plead a defence of fault.

There are two types of a mistake: –

  • Mistake of Law: – No defence in any civil and criminal case. When a person commits any tort and asks for the defence that he does not know the law, that does is considered as a defence. Court thinks that every person knows the law of the country that’s why the mistake of law is not considered as a defence in IPC as well as in tort. The mistake of law is not considered as a defence. When a person commits any tort and asks for the defence that he does not know the law, the court does not considers it as a defence. For example, ‘A’ murdered ‘B’, in this case, ‘A’ cannot apply for the defence of mistake of law i.e., he was not aware of crime/law related to the murder.
  • Mistake of Fact: – A mistake of fact as a defence applies to various crimes. If the criminal defendant can prove that he does the act due to a mistake of fact or misunderstood some fact that negates an element of the crime. For example, ‘A’ takes his dog to the park every day so that he can play off leash with other dogs. One day, ‘A’ lost sight of his dog for a few minutes. Well, he relocated the dog and walked towards the home. At home, he noticed a mark on the dog and came to the conclusion that it is not his dog, he mistakenly took another person’s dog with him. Here, ‘A’ will not be liable because he gets the defence of mistake of facts.

In general, Mistake, whether of fact or of law, is no defence to the action of tort. When any person wilfully interferes with the rights of others, he has no defence that he believed that his actions were justified. Likewise, no one under a mistake of fact defames someone or enters anyone’s property. If it is repeatedly told to an individual that it is not his property, he could not take it. It would no longer be a reasonable defence for him. For example, ‘A’ and ‘B’ are playing games on a laptop in B’s house. At the time ‘A’ leaves, he took the laptop from the table, believing that it was his laptop. ‘B’ repeatedly told ‘A’ that it was not his property and belonged to him. If then also ‘A’ leaves with B’s laptop, in that situation ‘A’ cannot take the defence of mistake of fact.

Defence of mistake of fact can be excusable but the defence of mistake of law is not excusable. It is assumed that every person knows the law of the country he resides in. if a person says, I do not know the law and does the act, it is not excusable. For example, ‘A’ is 17 years old went to buy wine from the wine shop. ‘B’, the owner of the shop honestly believed that ‘A’ was above 18 years of age and as per law 18+ person can legally have wine. ‘C’, a policeman caught ‘B’ for illegally selling wine to a child. Here ‘B’ can take advantage of the mistake of fact because he honestly believes ‘A’ to be 18+.

In Consolidated Company vs. Curtis, an auctioneer auctioned some goods of his customer, believing that the goods belonged to him. But then the true owner filed a suit against the auctioneer for the tort of conversion. The court held auctioneer liable and mentioned that the mistake of fact is not a defence that can be pleaded here. 

What is Necessity under law of torts?

Meaning of Necessity under Law of Torts: – The doctrine of necessity states that if an act is done and it causes harm but it is done in good faith in order to prevent harm, the person who does such an act is not liable. This is so provided that the harm caused due to an act done in necessity should not be intentional in nature. If an act is done to prevent further harm, even if that act was intentional, is not actionable and serves as a good defence. It should be distinguished from personal defence and an unavoidable accident.

Necessity is a defence to both the criminal law and the civil law, that is, if an action was ‘necessary’ to prevent a greater harm, that can be used to avoid both criminal and civil liabilities. Necessity is  defined under Section 81 of the Indian Penal Code as “Act likely to cause harm, but done without criminal intent, and to prevent other harm. Nothing is an offence merely by reason of its being done with the knowledge that it is likely to cause harm, if it be done without any criminal intention to cause harm, and in good faith for the purpose of preventing or avoiding other harm to person or property.”

The following points should be considered: –

  • In the case of personal defence, the plaintiff himself is guilty of causing injury.
  • Damage is done intentionally, when necessary, whereas in case of inevitable accident, damage occurs in spite of all efforts to avoid it.

It is essential to show the presence of the following to prove the necessity as defence: –

  • The damage caused was less than the harm that would have occurred otherwise;
  • The person reasonably believed that his actions were necessary to prevent imminent harm;
  • There was no practical alternative available for avoiding the harm;
  • The person did not cause the threat of harm in the first place.

In the case of Cope vs. Sharpe, the defendant entered the plaintiff’s land to prevent the spread of fire to the adjoining land and prevent the damage which could have been caused. The plaintiff, in this case, sued the defendant for trespass but since the defendant’s act was considered to be reasonably necessary to save the property and from real and imminent danger, the court held that the defendant was not liable for trespass as he has committed an act of necessity.

What is Inevitable Accident under law of torts?

Meaning of Inevitable Accident under Law of Torts: – An inevitable accident is a general defence in the law of torts. The inevitable accident which is also known as unavoidable accident says that a person cannot be held liable for an accident which was not foreseeable despite all care and caution taken from his side. Act of God can also be sometimes classed in inevitable accidents. 

For example: – If ‘A’ was driving a car and he was all in his senses and took all due care, but suddenly due to mechanical part failure his car loses his balance and hits a passer-by. In this case, the driver would not be liable as he took all precautions from his side. The accident was unavoidable.  

Accident means an unforeseen injury and if the same accident could not have been prevented or avoided in spite of taking all due care and precautions on the part of the respondent, then we call it an inevitable accident. It serves as a good defence because the defendant can show that even after taking all precautions, the injury could not have been prevented and that there was no intention to cause harm to the plaintiff.

For the defendant to use the defence of inevitable accident, it is necessary to show two things: –

  • There was no intention on the part of the defendant.
  • And, the collision could not have been avoided with reasonable care.

Inevitable accident is not only a helpful defence for the drivers but also in many other cases. As in the case of Brown vs. Kendall where the defendant’s and the plaintiff’s dog started fighting and in order to separate them, the defendant beats the plaintiff. Here the defendant can plead the defence of inevitable accident as there was no intention to harm him. The defendant only has to prove that there could not have been any alteration in his act to avoid the incident and the total incident was not intentional. However, if the defendant could not prove his act and the court finds that the act could have been avoided then the defense will not be available. 

What is the defence of Statutory Authority under law of torts?

Meaning of Statutory Authority under Law of Torts: – Statutory authority means authority which has been derived directly from the legislature, and any person working under the statutory authority has caused harm to the other person then that will not come under any wrong and no action can be taken on that.

If an act is authorized by an act or statute, it is not actionable, even if it would otherwise constitute a tort. This is an If an act is authorized by any act or statute, then it is not actionable even if it would constitute a tort otherwise. It is a complete defence and the injured party has no remedy except for claiming compensation as may have been provided by the statute. Immunity under the statutory right is given not only for apparent harm but also for accidental damage.

Even if under normal circumstances that act would have amounted to tort, but if there is statutory authority that act would be not considered under tort. Although for that particular act if there is provision for compensation that can be provided to the person, otherwise not. This statutory authority gives the power to the state and its authority to do act for the welfare and while doing if some harm is caused to any person then also, they will be immune from that particular act.

The authority given by a statute can be of two types: –

  • Absolute Authority: – In this, there is no liability if the nuisance or some other harm necessarily results.
  • Conditional Authority: – It means that the same is possible without nuisance or any other harm.

In the case of Metropolitan Asylum District vs. Hil, the hospital authorities i.e. the appellants were granted permission to set up a smallpox hospital. But the hospital was created in a residential area which was not safe for the residents as the disease can spread to that area. Considering it a nuisance an injunction was issued against the hospital. The authority, in this case, was conditional.

Case Laws for General Defences under Law of Torts

  1. Padmavati vs. Dugganaika (1975)

Facts of the Case: – The driver of the jeep took the jeep to fill the petrol. Two strangers took a lift in the jeep. The jeep overturned due to a problem with the right wheel. Two strangers who took the lift were thrown out of the jeep and suffered some injuries which resulted in the death of one person.

Judgement of the Case: – The owner of the driver cannot be held responsible as it was a case of sheer accident and the stranger voluntarily boarded the vehicle.

  1. Pitts vs. Hunt (1990)

Facts of the Case: There was a rider who was 18 years old. He encouraged his 16-year-old friend to drive while under the influence of alcohol. But his motorcycle met with an accident, the driver died on the spot. The rider sitting behind suffered serious injuries and filed a suit to claim compensation from the kin of the deceased person.

Judgement of the Case: – In this case, the court rejected the plea of the plaintiff because he himself was the wrongdoer of the case.

  1. Nichols vs. Marsland (1876)

Facts of the Case: – The respondent created an artificial lake on his land by collecting water from natural streams. Once upon a time there was an extraordinary rain, the heaviest in human memory. The embankments of the lake were destroyed and all four bridges in the valley were washed away.

Judgment of the Case: – In this case, the court held that the defendants were not liable as it was due to an act of God.

  1. Ramanuja Mudali vs. M. Gangan (1984)

Facts of the Case: – The defendant planted a spring gun in his garden without showing any notice to him and the plaintiff who was a trespasser suffered injuries due to its automatic discharge.

Judgement of the Case: – In this case, the court held that this act of the defendant was not just and the plaintiff was entitled to be compensated for the injuries caused to him.

  1. Morrison vs. Ritchie & Co (1902)

Facts of the Case: – The defendant mistakenly published a statement that the plaintiff had given birth to twins in good faith. The fact of the matter was that the plaintiff was married only two months back.

Judgement of the Case: – In this case, the defendant was held liable for the offense of defamation and the element of goodwill is insignificant in such cases.

  1. Cope vs. Sharpe (1891)

Facts of the case: – The defendant entered the plaintiff’s premises to prevent the spread of fire to the surrounding land where the defendant’s owner had shooting rights.

Judgement of the case: – Since the act of the defendant was to prevent further damage, he was not held liable for trespass.

  1. Haynes vs. Harwood (1936)

Facts of the Case: The defendant’s servant left two unclaimed horses on a public road. A boy threw stones at the horses, causing them to collide with bolts and posing a danger to a woman and others walking on the road. So, a constable came forward to protect him and while doing so he suffered injuries.

Judgement of the Case: – This being a rescue case, the defence of Voluntary Non-Fit Injuria was not available and the respondent was held liable. However, if a person voluntarily attempts to restrain a horse that does not pose a danger, he will find no remedy.

  1. Hammer Smith Rail Co. vs. Brand (1869)

Facts of the Case: – The value of the plaintiff’s property diminished due to the loud noise and vibrations produced by trains operating on a railway line constructed under a statutory provision.

Judgement of the Case: – The court held that nothing can be claimed for damages as it was done in accordance with the statutory provisions and if something is authorized by any statute or legislature then it acts as a complete defence. The respondent was not held liable in the case.

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