GENERAL DEFENCES

There are some general Defences that nullify the tortious liability of a person. As we have already discussed in the previous chapter that action may fail if the plaintiff fails to prove the essential ingredients of a tort. But even after proving the constituents of a tort, a plaintiff will fail, if the defendant justifies his tort on the basis of principles that annuls tortious liability.

These general defences are:

  1. Volenti non fit injuria

When a person gives consent for infliction of harm upon himself, he has no remedy for that in tort. That means if a person has consented to do something or has given permission to another person to do a certain thing, and if he got injured because of that, he cannot claim damages. For example, going to watch a cricket match in a stadium. consent to suffer the harm may be expressed or implies.

Consent must be freely given

To make this defence available the defendant must prove that consent given by the plaintiff was free consent without any force or misrepresentation.

In the case Wooldrige v. Sumner, the defendant conducted the horse race where the plaintiff was working as a photographer. While he was doing his work one of the horses galloped furiously, due to which the plaintiff was frightened and he fell into the horses’ course and there he was seriously injured by the galloping horse. The court observed that the defendant has taken due care and they were not held liable.

 

Exemption to the maxim

  • Consent obtained by fraud
  • Consent obtained under compulsion
  • Negligence of the defendant
  • Rescue case
  • Knowledge of risk
  • Consent obtained from a minor and insane person
  • Breach of statutory duty

 

  1. Private defence

Protecting oneself and one’s property is permitted by law. A person can use reasonable force for self-defence but exceeding the limit of self-defence is not appreciated by law.

In Ramanuja Mudali v. M. Gangan, the defendant had laid some live electric wire on his land for self-defence. The plaintiff while crossing it at 10 p.m. in order to reach his own land, received a shock from the wire and sustained injuries. The defendant had given no noticeable warning about such wire. The court observed that the force was unnecessary and unreasonable and therefore, he was held liable for the injuries caused to the plaintiff.

 

  1. Necessity

This exception is based on the maxim ‘Salus Populi Suprema Lex’, which means the welfare of the people is the supreme law. It means that the welfare of the community comes first compared to individual welfare. In order to prevent greater harm slight harm is permitted. For example, medical assistance or operation without the consent of the plaintiff during an emergency.

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

 

Restrictions

  • In the first place, the defence will not succeed if the necessity has arisen out of the negligent act of the defendant himself.
  • There must be a real and imminent danger to the person and property.
  • The distinction is maintained between the safety of human lives and the safety of property for obvious reasons.

 

  1. Inevitable accident

An inevitable accident means an unexpected occurrence of something. In such a case, the defendant will not be liable if they had no intention to cause harm and if the plaintiff is injured because of it.  In Padmavati v. Dugganaika, there was an accident due to dislodging of the wheel from the axle. It was found that it was a case of sheer accident, as there was no sign to show that the defect was a patent one and could have been detected by periodical check-up.

 

  1. Plaintiff the wrongdoer/plaintiff’s default

No court will aid a person who found his cause of action upon an immoral or an illegal act. This exception is based on a maxim ‘Ex Turpi Causa Non-Oriter Action, which means from an immoral cause no action arises. For example, driving on the wrong side.

In Bird v. Holbrook, the plaintiff, a trespasser over the defendant’s land was entitled to claim compensation for harm caused by a spring gun set by the defendant, without notice, in his garden. ‘Nullem Commodum Capre Potest De Injuria Sua Propria’ means no man can take advantage of his own wrong.

 

  1. Act of God (vis major)

It means an act of nature independent of human intervention. It is an act that cannot be foreseen by any amount of human ability and skill. For example, damage caused because of natural calamity.

Essentials

  • There must be the working of a natural force.
  • The occurrence must be extraordinary and not one which could be anticipated and reasonably guarded against.

In Nichols v. Marsland, Nicolas was the surveyor of some country bridges for Chesire. A land containing an artificial lake fed by a natural stream passing through the domain was owned by Marsland. An unprecedented and heavy rainfall caused the lakes to overflow after breaking the embankments of the lakes and the waves carried away four bridges of the country. Nichols, the plaintiff brought an action for damages on the plea that the defendant was negligent but it was held that whatever happened was unexpected and unpredictable and hence the defendant was not held liable.

 

  1. Statutory authority

The Parliament enacts the law at the same time, it has also the power to reverse any principle of common law. Any act or omission tortious under the common law may be specifically made legal by a statute and in that respect, statutory authority is a defence.

In Vaughan v. Taff Valde Rail Co., sparks from an engine of the respondent’s railway company, which had been authorized to run the railway, set fire to the appellant’s woods on the adjoining land. It was held that since the respondents had taken proper care to prevent the emission of sparks and they were doing nothing more than what the Statute had authorized them to do, they were not liable.

 

 

References

  • (1963) 2 Q.B. 43.
  • I.R. 1984 Mad. 103.
  • [1891] Q.B. 673.
  • [1975] 1 Kam. L.J. 93: 1975 A.C.J. 222.
  • (1828) 4 Bing. 628.
  • [1876] 2 Ex. D. 1.
  • [1860], 5 H. and N. 679.
  • R.K Bangia

 

 

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