GENERAL DEFENCES , When a plaintiff brings an action against the defendant for a particular tort or violation of legal right, resulting in legal damages, and successfully proves the essentials of a tort, the defendant is held liable.
However few exceptions are there in which the defendant can plead some defences which can help him in absolving from liabilities. Below listed are the General defences in tort.
- Private defense
- Necessity
- Inevitable accident
- The wrongdoer is the plaintiff
- ACT OF GOD OR VIS MAJOR
- MISTAKE
- Statutory authority
- Volenti non fit injuria or the defense of ‘Consent’
PRIVATE DEFENCE
Among the general defences in tort, PRIVATE DEFENCE is the most common. When a defendant tries to protect his body or property or any other person’s property, harms another person by using reasonable force, under an imminent-danger and where there is no time to report instantly to the authority, it is Private Defence. The harm done should be proportional according to the nature of the circumstances.
ESSENTIALS OF PRIVATE DEFENCE
- IMMINENT DANGER
There should be an immediate threat over the life or property of the defendant or another person’s property in which there is no time to report to the nearest authority. If the defendant is not able to contact that specific authority, then he can start the private defence.
- PROPORTIONAL FORCE
The defendant should apply a reasonable force. It should not be in excess of what is required.
EXAMPLE, If a thief breaks into the defendant’s personal property and tries to injure the defendant by beating him with a rod, then the defendant should tackle the thief using proportional force. If he is using a shotgun, then he can fire it on thief’s legs instead of his chest/forehead or it would be unreasonable.
In BIRD V. HOLBROOK, the defendant fixed up spring guns in his garden without displaying any notice regarding the same and the plaintiff who was a trespasser suffered injuries due to its automatic discharge. The court held that this act of the defendant is not justified and the plaintiff is entitled to get compensation for the injuries suffered by him.
Similarly, in RAMANUJA MUDALI V. M. GANGAN, a landowner i.e. the defendant had laid a network of live wires on his land. The plaintiff in order to reach his own land tried to cross his land at 10 p.m. He received a shock and sustained some serious injuries due to the live wire and there was no notice regarding it. The defendant was held liable in this case and the use of live wires is not justified in the case.
In COLLINS V. RENISON, the plaintiff went up a ladder for nailing a board on a wall in the defendant’s garden. The defendant threw him off the ladder and when sued he said that he just gently pushed him off the ladder and nothing else. It was held that the force used was not justifiable as the defence.
NECESSITY
‘NECESSITY KNOWS NO LAW’. In order to avoid or prevent a great loss or harm, a defendant can cause lesser harm that is justified. The act of the defendant may be not legal but if it is to avoid major damage then he can plead this defence.
It should be distinguished with private defence and an inevitable accident.
ESSENTIALS OF NECESSITY
- When the defendant acts to avoid a significant risk of harm.
- His causing of harm should be justified
In LEIGH V. GLADSTONE, it was held that the forcible feeding of a person who was hunger-striking in a prison served as a good defence for the tort of battery.
In COPE V. SHARPE, the defendant entered the plaintiff’s premises to stop the spread of fire in the adjoining land where the defendant’s master had the shooting rights. Since the defendant’s act was to prevent greater harm so he was held not liable for trespass.
In the case of CARTER V. THOMAS, the defendant who entered the plaintiff’s land premises in good faith to extinguish the fire, at which the fire extinguishing workmen were already working, was held guilty of the offence of trespass.
In KIRK V. GREGORY, A’s sister-in-law hid some jewellery after the death of A from the room where he was lying dead, thinking that to be a more safe place. The jewellery got stolen from there and a case was filed against A’s sister-in-law for trespass to the jewellery. She was held liable for trespass as the step she took was unreasonable.
INEVITABLE ACCIDENT
Accident means an unexpected injury and if the same accident could not have been stopped or avoided in spite of taking all due care and precautions on the part of the defendant, then we call it an inevitable accident. It serves as a good defence as the defendant could show that the injury could not be stopped even after taking all the precautions and there was no intent to harm the plaintiff.
Accident means an unexpected injury and if the same accident could not have been stopped or avoided in spite of taking all due care and precautions on the part of the defendant, then we call it an inevitable accident. It serves as a good defence as the defendant could show that the injury could not be stopped even after taking all the precautions and there was no intent to harm the plaintiff.
In STANLEY V. POWELL, the defendant and the plaintiff went to a pheasant shooting. The defendant fired at a pheasant but the bullet after getting reflected by an oak tree hit the plaintiff and he suffered serious injuries. The incident was considered an inevitable accident and the defendant was not liable in this case.
IN ASSAM STATE COOP., ETC. FEDERATION LTD. V. SMT. ANUBHA SINHA, the premises which belonged to the plaintiff were let out to the defendant. The tenant i.e. the defendant requested the landlord to repair the electric wirings of the portion which were defective, but the landlord did not take it seriously and failed to do so. Due to a short circuit, an accidental fire spread in the house. No negligence was there from the tenant’s side. In an action by the landlord to claim compensation for the same, it was held that this was the case of an inevitable accident and the tenant is not liable.
In SHRIDHAR TIWARI V. U.P. STATE ROAD TRANSPORT CORPORATION, a bus of U.P.S.R.T.C. reached near a village where a cyclist suddenly came in front of the bus and it had rained heavily so even after applying breaks the driver could not stop the bus as a result of this the rear portion of the bus hit another bus which was coming from the opposite side. It was known that there was no negligence on the part of both the drivers and they tried their best in avoiding the accident. This was held to be a case of inevitable accident. The defendant i.e. U.P.S.R.T.C. was held not liable for this act.
In the case of HOLMES V. MATHER, the defendant’s horse was being driven by his servant. Due to the barking of dogs, the horse became unmanageable and started to bolt. In spite of every effort of the driver, the horse knocked down the plaintiff. This makes it a case of an inevitable accident and the defendants were held not liable for the incident.
In BROWN V. KENDALL, the dogs of the plaintiff and the defendant were fighting with each other. The defendant tried to separate them and while doing so, he accidentally hit the plaintiff in the eye causing him some serious injuries. The incident was purely an inevitable accident for which no claim could lie. So, the court held that the defendant is not liable for the injuries suffered by the plaintiff as it was purely an accident.
In PADMAVATI V. DUGGANAIKA, the driver of the jeep took the jeep to fill petrol in it. Two strangers took a lift in the jeep. The jeep got toppled due to some problem in the right wheel. The two strangers who took lift were thrown out of the jeep and they suffered some injuries leading to the death of one person.
The conclusions which came out of this case are:
- 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.
- The principle of volenti non fit injuria was not applicable here.
- It was a case of a sheer accident which no one could foresee.
In NITRO-GLYCERINE CASE, A firm of carriers i.e. the defendants, in this case, was given a wooden case which was to carry from one place to another. The contents of the box were unknown. There was some leakage in the box and the defendants took the box to their office so that they can examine it. After taking out the box, they saw that it was filled with Nitro-Glycerine and then it suddenly exploded and the office building which belonged to the plaintiffs got damaged. The defendants were held not liable for the same as the same could not be foreseen.
In the case of ORIENTAL FIRE & GENERAL INS. CO. LTD. V. RAJ RANI, the front right spring and other parts of a truck broke all of a sudden and the driver could not control it and dashed into a tractor that was coming from the opposite direction. The driver and the owner of that truck could not prove that they had taken all reasonable precautions while driving the truck. The court held that this case comes under negligence and has nothing to do with the inevitable accident and the defendant was liable.
ACT OF GOD OR VIS MAJOR
A very unusual act or an event which is the result of the natural forces such as earthquakes, volcanic eruptions, floods, droughts, etc. is coined as Act of God or ‘Vis major’. It is beyond human imagination and could not be prevented by human intervention.
The defence of Act of God and Inevitable accident might look the same but they are different. Act of God is a kind of inevitable accident in which the natural forces play their role and causes damage. For example, heavy rainfall, storms, tides, etc.
ESSENTIALS OF ACT OF GOD OR VIS MAJOR
- The act should result from a natural force.
- No human intervention.
- Extraordinary in nature.
In RAMALINGA NADAR V. NARAYAN REDDIAR, the unruly mob robbed all the goods transported in the defendant’s lorry. It cannot be considered to be an Act of God and the defendant, as a common carrier, will be compensated for all the loss suffered by him.
In NICHOLS V. 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.
In KALLU LAL V. HEMCHAND, the wall of a building collapsed due to normal rainfall of about 2.66 inches. The incident resulted in the death of the respondent’s children. The court held that the defence of Act of God cannot be pleaded by the appellants in this case as that much rainfall was normal and something extraordinary is required to plead this defence. The appellant was held liable.
MISTAKE
When a defendant acts under a mistaken belief in some or the other situation, he may plead the defence of mistake.
A mistake is of TWO TYPES:
- The mistake of law: No defence in each civil and criminal case.
- The mistake of fact: Not valid in torts
In both conditions, no defence is available to the defendant
When a defendant acts under a mistaken belief in some situations then he may use the defence of mistake to avoid his liability under the law of torts.
In MORRISON V. RITCHIE & CO, the defendant by mistake published a statement that the plaintiff had given birth to twins in good faith. The reality of the matter was that the plaintiff got married just two months before. The defendant was held liable for the offence of defamation and the element of good faith is immaterial in such cases.
In CONSOLIDATED COMPANY V. 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.
STATUTORY AUTHORITY
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 statutory authority is not given only for the harm which is obvious but also for the harm which is incidental.
In VAUGHAN V. TAFF VALDE RAIL CO., sparks from an engine of the respondent’s railway company were authorized to run the railway, set fire to the appellant’s woods on the adjoining land. It was held that since they did not do anything which was prohibited by the statute and took due care and precaution, they were not liable.
In HAMMER SMITH RAIL CO. V. BRAND, the value of the property of the plaintiff depreciated due to the loud noise and vibrations produced from the running trains on the railway line which was constructed under a statutory provision. The court held that nothing can be claimed for the damage suffered as it was done as per the statutory provisions and if something is authorized by any statute or legislature then it serves as a complete defence. The defendant was held not liable in the case.
In SMITH V. LONDON AND SOUTH WESTERN RAILWAY CO., the servants of a railway company negligently left the trimmings of hedges near the railway line. The sparks from the engine set fire to those hedges and due to high winds, it got spread to the plaintiff’s cottage which was not very far from the line. The court held that the railway authority was negligent in leaving the grass hedges near the railway line and the plaintiff was entitled to claim compensation for the loss suffered.
ABSOLUTE AND CONDITIONAL AUTHORITY
The authority given by a statute can be of two types:
- Absolute
- Conditional
In the case of Absolute authority, there is no liability if the nuisance or some other harm necessarily results but when the authority is conditional it means that the same is possible without nuisance or any other harm.
In the case of METROPOLITAN ASYLUM DISTRICT V. 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.
WHEN A PLAINTIFF HIMSELF IS THE WRONGDOER
There is a maxim “Ex turpi causa non oritur actio” which says that “from an immoral cause, no action arises”.
If the basis of the action by the plaintiff is an unlawful contract then he will not succeed in his actions and he cannot recover damages.
If a defendant asserts that the claimant himself is the wrongdoer and is not entitled to the damages, then it does not mean that the court will declare him free from the liability but he will not be liable under this head.
In the case of BIRD V. HOLBROOK, the plaintiff was entitled to recover damages suffered by him due to the spring-guns set by him in his garden without any notice for the same.
In PITTS V. HUNT, there was a rider who was 18 years of age. He encouraged his friend who was 16 years old to drive fast under drunken conditions. But their motorcycle met with an accident, the driver died on the spot. The pillion rider suffered serious injuries and filed a suit for claiming compensation from the relatives of the deceased person. This plea was rejected as he himself was the wrongdoer in this case.
VOLENTI NON FIT INJURIA
In volenti non fit injuria, if a plaintiff has consented 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.
SOME EXAMPLES OF THE DEFENCE ARE:
- When you yourself call somebody to your house you cannot sue your guests for trespass;
- If you have agreed to a surgical operation then you cannot sue the surgeon for it; and
- If you agree to the publication of something you were aware of, then you cannot sue him for defamation.
- A player in the games is deemed to be ready to suffer any harm in the course of the game.
- A spectator in the game of cricket will not be allowed to claim compensation for any damages suffered.
For the defence to be available the act should not go beyond the limit of what has been consented.
In HALLV. 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.
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