INTRODUCTION Of General Defences Against Tortious Liability
General Defences encompass a set of defences that have developed over time and have been recognized by the courts intermittently as grounds to mitigate tort liability, provided that the actions of the defendant align with the criteria and circumstances associated with these defences. When facing accusations of committing a tort, individuals have the option to invoke various defences to either evade or minimise their liability for the alleged misconduct.
These defences, referred to as general defences, offer legal justifications or grounds that can protect defendants from being entirely held responsible for their actions or give immunity from liability to an action in tort. General defences, which may be taken against action for a number of wrongs, are:
- Volenti Non Fit injuria i.e. Consent
- Plaintiff, the Wrongdoer
- Inevitable Accident
- Act of God
- Private Defence
- Necessity
- Statutory Authority
- Mistake
- Act causing Slight Harm
VOLENTI NON FIT INJURIA: DEFENCE OF CONSENT
"Volenti non fit iniuria" is a latin legal term
meaning "to one who is willing, no harm is
done.”
In tort law, it refers to the defence of consent, where a defendant argues that the plaintiff voluntarily exposed themselves to a known risk and therefore cannot claim compensation for any resulting harm.
When an individual willingly agrees to endure harm upon themselves, they forfeit the right to seek recourse in tort law. One cannot enforce a right that they have voluntarily relinguished or waived. For example, when extending an invitation to Someone to enter your property, you cannot subsequently sue them for trespassing.
In the case of Hall v. Brooklands Auto
Racing Club (1932), the plaintiff attended a car racing event as a spectator, where the racing track belonged to the defendant. During the race, a collision occurred between two cars, resulting in one of them being propelled into the crowd of spectators, causing injury to the plaintiff. The court ruled that the plaintiff willingly assumed the risk of watching the race, as the possibility of such injuries was foreseeable to any spectator. Therefore, the defendant was not held liable in this case.
Essentials: For the maxim volenti non fit injuria to apply, two points have to be proved.
o Free Consent
o Knowledge
Free Consent
The consent could be expressed or implied but it must be free. If the consent of the plaintiff has been obtained by fraud or under compulsion or under some mistaken impression, such consent does not serve as a good defence.
In the case of R v. Williams, the defendant, a singing coach, deceived one of his students by falsely claiming that a particular act purportedly intended to open her air passages to enhance her singing-was being performed. In reality, he engaged in sexual intercourse with her.
The court determined that the victim's consent was invalidated by the deceit employed by the defendant. This case serves as an example of how consent obtained through dishonest or unfair means can be deemed invalid.
Knowledge
"Scienti non fit injuria"- Knowledge of risk is not equal to consent of risk.
If only the knowledge of the risk is present without actual consent or assent from the plaintiff, it does not constitute a defence. The maxim "volenti non fit injuria" applies only when the plaintiff willingly consents to endure the harm. Merely being aware of the potential harm does not imply that the plaintiff agrees to accept it. Therefore, without explicit consent or voluntary assumption of risk, the defence of "volenti non fit injuria" does not apply.
Smith v. Charles Baker and Sons, [Stone
Quarry case], plaintiff was employed by the defendant in a stone Quarry. Large chunks of Rock were being conveyed from one site to another by the help of cranes. One of the stones fell and injured the plaintiff working there. It was held by the court that there is mere knowledge of risk and there was no consent. Therefore maxim volenti non fit injuria was not made applicable.
Exceptions to the Principle of "Volenti Non Fit Injuria" Include
Rescue Cases: When a plaintiff voluntarily Comes to the rescue of someone from a danger created by the defendant, the defence of "volenti non fit injuria" will not be available to the defendant.
Haynes v. Harwood: A constable intervened to protect women and children from horses left unattended in a public street, resulting in injuries to the constable. The defendants were held liable as it wasa rescue case.
Breach of Statutory Duty: If injury occurs due to a breach of duty imposed by statute, the defendant cannot rely on "volenti non fit injuria." Thus there is no answer to a claim made by a workman against his employer for injury caused through a breach by the employer of a duty imposed upon him bystatute (Wheeler v Mertor Board MillsLtd.).
Negligence: If a plaintiff consents to take some risk, there is a presumption that the defendant will not be negligent. Therefore, if injury results from the defendant's negligence despite the plaintiff's consent, the defence of"volenti non fit injuria'" cannot be used. Thus, where a player negligently or deliberately hit another with a stick or where an defendant cannot plead volenti non fit injuria because the plaintiff never consented to an injury in that manner:
Unfair Contract Terms Act 1977 (England): This legislation limits a persons ability to restrict or exclude liability resulting from their negligence e through contract terms or notices.
Illegal consent: No consent can legalise an unlawful act e.g. fighting with naked fists or duel with sharp swords. No person can licence another to commit a crime.
PLAINTIFF HIMSELF THE WRONGDOER
A plaintiff will be unable to pursue legal remedy if it arises in connection with his own illegal act. In this regard, the Latin maxim "ex turpi causa non oritur action" suggests that from an immoral cause, no action arises. This principle denotes that a plaintiff, who is deemed to be the wrongdoer or engaged in illegal conduct, may be barred from seeking legal remedy for any harm resulting from their own unlawful actions.
According to legal scholar Pollock, when the plaintiff is found to be at fault or engaged in wrongdoing, they are not necessarily prevented from recovering damages in a tort case unless their own unlawful conduct is directly connected to the harm they suffered as part of the same event or transaction.
Inthe case of Bird v. Halbrook, the defendant installed spring guns in his garden without providing any notice to warn trespassers. A trespasser (the plaintiff) was injured by these guns. Despite the plaintiff 's trespassing, the court ruled that he was entitled to recover damages from the defendant because the force used by the defendant (spring guns) exceeded what was necessary for protection, and the defendant failed to inform the public about the presence of these hazards. This decision was based on the principle that the defendant's negligence in not adequately warning about the danger outweighed the plaintiff's trespassing, thus allowing the plaintiff to seek compensation for the harm suffered.
VIS MAJOR OR ACT OF GOD
Vis Major, commonly known as an Act of God, refers to extraordinary occurrences of natural forces that could not have been foreseen or prevented by human intervention.
According to Halsbury's Law of England, an Act of God is defined as an extraordinary circumstance resulting from natural causes, directly and exclusively, without human intervention.
It must be an accident due to a natural cause that could not have been avoided, regardless of the amount of foresight exercised. The event does not need to be unique, but it must be extraordinary and unforeseeable.
For the defence of Vis Major to apply, two
essential conditions must be met:
- The event causing damage must be a result of natural forces without any human intervention.
- The event must be such that its possibility could not have been recognized through reasonable care and foresight.
In the case of Nichols v. Marshland, the defendant created an artificial lake by collecting water from natural streams on his land. Due to an extraordinary rainfall, the water overflowed and washed away a nearby bridge belonging to the plaintif. The court ruled in favour of the defendant, stating that they were not liable as the damage was caused by an Act of God.
Similarly, in Blyth V. Birmingham Waterworks (1856), despite the defendant waterworks company following all directions in laying down a main pipe, a severe frost caused the pipe to burst, resulting in damage to the plaintiff's property. The consequence was deemed an Act of God, relieving the defendant of liability.
NECESSITY (JUS NECESSITATIS)
The defence of necessity hinges on the principle that if an action causing harm is undertaken to prevent a greater harm, it is not considered actionable. The Black's Law Dictionary defines the word 'necessity' as 'Controlling force; irresistible compulsion; a power or impulse so great that it admits no choice of conduct’
This defence is applicable only in urgent situations of imminent danger. For instance, if someone demolishes a house to halt the spread of fire to neighbouring properties, the act is justified under the doctrine of necessity.
It's important to note that in cases of necessity, harm is inflicted intentionally, unlike in inevitable accidents where harm occurs despite efforts to prevent it.
In the case of Cope v. Sharpe, the defendant entered the plaintiff's premises to halt the spread of fire in adjacent land where the defendant's employer held shooting rights. Because the defendant's actions aimed to prevent greater harm, they were not held liable for trespass.
However, in Carter v. Thomas, the defendant entered the plaintiff's property with the intention of extinguishing a fire. Despite their good intentions and the presence of firefighting personnel already at work, the defendant was found guilty of trespass.
INEVITABLE ACCIDENT
An unforeseen injury is commonly referred to as an accident. When the nature of the injury is such that it couldn't have been prevented despite the defendant exercising all reasonable precautions and care, it is termed as an Inevitable Accident. This defence allows the defendant to be absolved of liability.
The defence is effective because it demonstrates that the legal injury was unavoidable, even with the utmost care, and without any intention to harm the other party.
In the case of Stanley v. Powell, both parties were engaged in pheasant shooting when the defendant fired a bullet at a pheasant. However, the bullet ricocheted off an oak tree, striking the plaintiff and causing severe injuries. The court ruled that this incident was an unavoidable accident, and the defendant was not held liable.
Similarly, in Shridhar Tiwari v. U.P. State Road Transport Corporation, , a cyclist suddenly appeared in front of a U.PS.RTC bus during rainy conditions as it approached a village. Despite the bus driver's attempts to stop, the wet road prevented it, resulting in a collision with another bus. It was determined that neither bus driver was at fault and that all possible precautions were taken to avoid the collision. As a result. Plaintiff's complaint was dismissed as it Was deemed an unavoidable accident for which the U.PS.R.T.C. could not be held responsible.
PRIVATE DEFENCE
Every individual holds a legal right to safeguard their own life and property, as well as those of others, as recognized under tort law. Any action taken by an individual to exercise this right is exempt from tort liability.
The defence of self-defence encompasses
three crucial aspects:
- Existence of a credible and imminent threat to life or property.
- Use offorce solely for self-protection, not for retaliation.
- Application of force should be commensurate with the level of danger:
In the case of Bird v. Holbrook, the defendant installed spring guns in his garden without providing any warning Consequently, the plaintiff suffered injuries due to unawareness. The plaintiff is entitled to compensation because the installation of spring guns without warning does not meet the criteria for self-defence, lacking fundanental elements.
In Ramanuja Mudaliv. M. Gangan, the defendant landowner placed wires on his property without giving notice. When the plaintiff traversed the defendant's land to access his own, he received an electric shock, resulting in significant injuries. Such conduct by the defendant does not qualify as self-defence, and there fore, the defendant is liable for the damages incurred by the plaintiff.
Morris vs. Nugent (1836), Here the defendant was passing by plaintiff's house and the plaintiff's dog ran out and bit the defendant's sister and on the defendants turning around raising his gun, the dog ran away but he shot as it was running away. It was held that the defendant was not justified in doing so. To justify the shooting of a dog he must be actually attacking the party at the time.
STATUTORY AUTHORITY
Statutory authority refers to conduct that is sanctioned or permitted by a law or statute enacted by relevant authorities. This authorization serves as a complete defence against tort liability, shielding the defendant from legal action even if their actions would otherwise constitute a tort. In such cases, the injured plaintiff has no recourse other than seeking compensation as stipulated by the relevant legislation.
In the case of Vaughan v. Taff Vale Railway Co., sparks emitted from the defendant company's authorised railway engine ignited a fire in the plaintiff's adjacent forests. The defendant was absolved of liability due to the statutory authority granted by legislation. Consequently, the defence of statutory authority was invoked successfully, relieving the defendant from any legal responsibility.
Contrastingly, in Smith v. London and South Western Railway Co., negligence by the railway company's employees in failing to trim hedges alongside the railway track led to sparks igniting a neighbouring cottage, causing a fire. In this instance, the defence of statutory authority was deemed ineffective as the negligence exceeded the scope of the statutory authorization. As a result, the defendants were held accountable for the damages incurred.
MISTAKE
Mistake of law or mistake of fact is generally not considered a valid defence in tort law. However, there are limited exceptions where the defence of mistake can be invoked.
In the case of Morrison v. Ritchie & Co, the defendant mistakenly published a statement asserting that the plaintiff had given birth to twins in good faith. However, the reality was that the plaintiff had only been married for two months. Despite the defendant's good faith, they were held liable for defamation. The element of good faith was deemed immaterial in this case.
Similarly, in Consolidated Company v. Curtis, an auctioneer mistakenly auctioned goods belonging to a customer, believing them to be his own. When the true owner filed a suit against the auctioneer for conversion, the court held the auctioneer liable, stating that mistake of fact is not a valid defence.
While mistake of fact or law is generally not a defence in tort, there are certain limited cases where it may be applicable. For instance, in torts requiring malice such as malicious prosecution or deceit, the defendant may argue that they acted under an honest and mistaken belief. However, this defence is subject to specific circumstances and may not always be successful.
In cases where a mental element is required or is an essential ingredient in constituting the wrong, a mistake may be considered as a defence. However, the applicability of this defence would depend on the specific facts and circumstances of each case.
ACT CAUSING SLIGHT HARM
The law does not take into account trifles "de minimis non curat lex". Nothing is wrong of which a person of ordinary sense and temper would not complain. The principle is also recognised in Sec 95 of the Indian Penal code.
Example: A is driving along a dusty road at a good speed, and the wheels of his motor car throw a little dust on the clothes of B, a pedestrian, which does not harm. A is not liable.
In summary, the general defences in tort law are crucial tools for balancing the rights and interests of both plaintiffs and defendants. They play a vital role in ensuring that justice is served and fairness is maintained in resolving tort claims. By providing defendants with legitimate avenues to contest liability, these defences help prevent unwarranted legal consequences and promote equitable outcomes.
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Act of God
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the Wrongdoer
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Volenti Non Fit injuria