Scribd
Upload
413 views16 pages

On General Defences

The document outlines 8 general defences to liability in tort law: 1. Volenti non fit injuria (consent): If the plaintiff voluntarily assumed the risk of harm, there is no liability. 2. Plaintiff the wrongdoer: If the plaintiff's own unlawful actions caused the harm, there is no liability. 3. Inevitable accident: If the harm was caused by factors beyond human control, there is no liability. 4. Act of God: If the harm was caused solely by natural forces that could not be prevented, there is no liability. 5. Private defence: Harm caused while reasonably defending oneself or property is not actionable. 6. Necessity: H

Uploaded by

Ishika Gandhi
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as PDF, TXT or read online on Scribd
413 views16 pages

On General Defences

The document outlines 8 general defences to liability in tort law: 1. Volenti non fit injuria (consent): If the plaintiff voluntarily assumed the risk of harm, there is no liability. 2. Plaintiff the wrongdoer: If the plaintiff's own unlawful actions caused the harm, there is no liability. 3. Inevitable accident: If the harm was caused by factors beyond human control, there is no liability. 4. Act of God: If the harm was caused solely by natural forces that could not be prevented, there is no liability. 5. Private defence: Harm caused while reasonably defending oneself or property is not actionable. 6. Necessity: H

Uploaded by

Ishika Gandhi
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as PDF, TXT or read online on Scribd
You are on page 1/ 16

GENERAL DEFENCES

Swapna
Introduction
• Means justification or grounds of immunity
from liability to an action in tort.
• General exceptions to the liability
Volenti non fit injuria (Consent)
• Voluntary assumption of risk
• Once a person consents to the infliction some harm upon him.
➢ No man can enforce a right which he has voluntarily waived or
abandoned.
• Plaintiff knew that the risk is there
• knowing the same agreed to suffer the harm.
➢ The consent may be expressed or implied. I.e. express consent –
Surgical Operation; Implied Consent – Boxing, Cricket
➢ But not go beyond the limit of what has been consented
e.g. unlawful attack in game and Doctors Negligence.

• Cases:
➢ Hall v. Brooklands Auto Racing Club
➢ Padmavati v. Dugganaika
• Need 3 elements by plaintiff to accept risk
❑ Consent must be free
case- Lakshmi Rajan v. Malar Hospital Ltd.
❑ Consent must not be obtained by fraud
case- R. V. Williams
❑ Consent must not be obtained under
compulsion
• Limitation of the doctrine of Volenti non fit injuria:
– Rescue Cases
– Cases of Negligence:

Case- Haynes v. Harwood


2. Plaintiff the Wrong Doer
• When the Plaintiff himself is a wrongdoer, he
is not disabled from recovering in tort, unless
some unlawful act or conduct on his own part
is connected with harm suffered by him as
part of the same transaction.
• Maxim: Ex turpi causa non oritur actio – From
an immoral cause no action arises
• Case: Bird v. Holbrook
3. Inevitable Accident

• Accident in its general sense, is an unexpected


injury resulting from any unlooked occurrence
• And could not have been foreseen and avoided in
spite of reasonable care on the part of the
defendant
• Inevitable accident may be caused either by
– Factors beyond the control of man (natural forces)
– Factors which are within human control.
• Cases:
– Stanley v. Powell
– Nitro-Glycerine Case
4. Act of God (Vis major )
• means an act or escaped cause directly by natural cause without human
intervention and is ‘so unexpected that no human foresight or skill could
reasonably be executed to anticipate it”.
• An extraordinary occurrence of circumstance, which could not have been
foreseen and could not have been guarded against without human
intervention which could not have been avoided by any amount of
foresight.
• Vis major means superior force
• Examples: Storms, Tides, Volcanic eruptions, earthquake, etc.
• Essentials:
– There must be working of natural forces
– The occurrence must be extraordinary and not one which could be anticipated
and reasonably guarded against.
• Cases:
Nichols v. Marshland
Kallulal v. Hemchand
5. Private Defence
• Every person has a right to defend his own person,
property, or possession, against an unlawful harm. Any
harm inflicted while exercising his right he can claim
private defence.
• also called as self defence or defence of person and
property.
• Essentials:
– There shall be a real and imminent danger
– Force used shall be reasonable and proportionate
• Cases:
Bird v. Holbrook
Ramanuja Mudali v. M. Gangan.
6. Necessity
• It means irresistible force; inevitable consequence; that which is
essentially requisite; great or urgent public convenience.
• Essential: It is available only if the interference with the person or
property of another is reasonable.
– There shall be an act causing damage,
– The act done under necessity to prevent a greater harm or evil is not
actionable even though harm was caused intentionally.
– There is infliction harm on an innocent person and intended one.
• Examples:
– To pull down a house on fire in order to prevent spreading of fire to
other property
– To throw cargo over board to save a ship in danger during storm
– Medical assistance or operation without the consent of the patient
during emergency
• Case : Kirk v. Gregory
7. Mistake
• An unconscious ignorance or forgetfulness of
fact.
• Mistake means when one commits an error in
understanding or perceives wrongly.
• In general, Mistake, whether of fact or of law,
is no defence to the action of tort.
• Mistake may be of 2 kinds:
Mistake of Law and Mistake of Facts
Mistake of Law
• Mistake as to the legal consequences of
significance of an act or mistake on point of
law.
• Ignorantia Juris non excusat,i.e. ignorance of
the law is no excuse.
Mistake of Facts
• In general, a mistake of fact generally refers to a
mistaken understanding by someone as to facts of a
situation the mistake results in the person committing
an illegal act.
• mistake has to be reasonable and honest.
• The State of Maharashtra v. Mayer Hans George, 1965
AIR 722, 1965 SCR (1) 123
In this case, A is an officer of the court. Court ordered
him to arrest Y. A arrest Z, as he believes Z to be Y.
Here, A can take the ground of good faith or a bona
fide intention as a defence in the mistake of fact.
Mistake of Fact and not A Mistake of
Law
• This phrase means a 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.
• However, if a person did a wrongful act by mistake of fact with a good intention
and honest belief that he was bound to do, he may be excused.
• Illustration
Situation 1
• 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+.
Situation 2
• A has possession of a rifle without a licence. B, a policeman caught him. He asked
for the defence of mistake of law i.e. he was unaware of the law. Here, A does not
get any defence because it is assumed that every person knows the law of the land
he resides in.
8. Statutory Authority
• Any damage resulting from an act, which if authorized
by the legislature to be done, is not actionable even
though in normal circumstances it would be otherwise
a tort.
• Types-
1. Absolute Authority
2. Conditional Authority
• Cases-
1. Hammer Smith Railway Co. v. Brand
2. Smith v. London and South Western Railway Co.
3. Metropolitan Asylum District v. Hill

You might also like