When the plaintiff (the person who files a suit) brings an action against the defendant (the person against whom the suit is filed) for a particular tort, then the defendant can avoid his liability by taking the plea of some general defences.
General Defences Vs Specific Defences
• General defences in Tort law are those defences which may be taken against number of torts for instance the defence of Consent can be taken for Trespass, Defamation, or any other tort. • Specific defences refer to those defences which are peculiar to some particular wrongs like the defence of fair comment, privilege, or justification that can be taken only for Defamation.
General Defences
1. Volenti Non Fit Injuria (Consent)
• According to this maxim, “to a willing person, no injury is done.” It means that a person who willingly and knowinglyputs himself in a dangerous situation cannot sue for any resulting injuries. • When a person himself consents to the infliction of some harm upon himself then the person can take the defence of Volenti Non Fit Injuria. • The consent given may be express or implied.
Essential condition for Volenti non fit injuria:
➢ Consent must be free: For this defence it is necessary to how that plaintiff consent was free. If the consent is obtained by fraud or under compulsion or under some mistaken impression then the defendant cannot take a defence of the Doctrine of Volenti non fit injuria.
For Example:
• A married woman (Plaintiff),noticed development of a painful lump in her hand. The lump had no effect on her uterus, but during surgery her uterus was removed without any justification. It was held that hospital (Defendant) was liable for deficiency in service and it was also held that the Plaintiff’s consent for the operation of her hand did not imply her consent to the removal of uterus. ➢ Consent cannot be given for an unlawful act: Any consent for an unlawful act and which is prohibited by law cannot make the act legal. For example consent for fighting with sharp swords is unlawful even though the parties may have consented. ➢ Mere Knowledge does not imply assent: For the maxim volenti non fit injuriato apply the two points need to be proved: (a) the plaintiff knew that the risk is there. (b) He, knowing the same, has agreed to suffer the harm. If both the points are proved then only this maxim will apply.
For Example:
• The plaintiff (Workmen) was employed by defendant for the purpose of cutting the rock. There was a crane at the working drill which is used to convey the stones. The crane is passed over the plaintiff head again and again. While the Plaintiff was busy in his work a stone fell from the crane and injured him. Here the Court held that there was mere a knowledge of risk without the assumption of it. So the maxim Volenti non fit injuria did not apply and the defendants were liable . 2. Plaintiff, the wrongdoer • If the Plaintiff himself did something wrong which caused him the injury then in that case the plaintiff cannot claim any damages from the Defendant.
• It is based on the maxim “Ex turpicausa non oritur action” which means, from an immoral cause no action arises.
For Example: • If someone walks into someone’s house without his permission and it is written on the gate that “beware of dogs” and after entering the dog bites him then in that case the plaintiff is himself the wrongdoer and he know the risk before entering the house so the plaintiff cannot claim compensation from the Defendant .
3. Inevitable Accident
• When an injury is caused to a person for an event which could not have been foreseen and avoided, in spite of reasonable care by the defendant then it comes under the defence of inevitable accident. • In this defence it is necessary to show that: (a) the defendant does not intend to injure the Plaintiff (b) the defendant cannot avoid it in spite of the reasonable care.
For Example:
• Plaintiff and Defendant went for a pheasant shooting .The defendant fired at a pheasant, but the shot from his gun glanced off an oak tree and injured the plaintiff. It was held that injury was accidental i.e. an Inevitable Accident and hence the defendant was held not liable.
For Example:
• Two strangers took a lift in a jeep. Afterwards, one of the bolts fixing the right front wheel of the jeep to the axle gave way and the wheel flew away from the axle. The jeep was toppled; the two strangers got serious injuries resulting in death of one of them. It was found that it was mere an accident which could not be detected by periodical checkup. Therefore the defendant was held not liable as he took the defence of inevitable accident.
4. Act of God
• It is a kind of inevitable accident with the difference that Act of God includes those consequences which arises out of the working of natural forces like exceptional heavy rainfall, volcanic eruptions, tides, etc. • There are two essential condition needed for this defence : ➢ The event causing damage must be a working of a natural force without any intervention from human agency.
For example:
• If the goods transported in the defendant’s lorry was robbed by the unruly mob then it cannot be considered to be an Act of God and the defendant is liable for the loss of those goods. ➢ The occurrence must be extraordinary and not the one which could be anticipated and reasonably guarded against.
For Example: The wall of building was collapsed on the day when there was rainfall of 2.66 inches which resulted in the death of 2 children. The court held that the defendant could not take the defence of Act of God as that much of rainfall in the rainy season is very common and not any extraordinary condition. Hence the defendant was held liable. 6. Private Defence If someone uses reasonable force to protect one person’s or property, then one can be excused if the forced used was reasonable.
For instance, if someone is going to slap you and in self defence you shoot that person then that would be an excessive use of force which is not required and hence unreasonable.
• The essential requirements for this defence are:
➢ The defendant must be under imminent threat to the personal safety or property. ➢ The defence must be for self defence and not for any kind of revenge. ➢ The response must be proportional to attack or threat
For Example:
• A, the defendant has laid some live electric wire on his land. 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 visible warning about such wire. He was, therefore held liable for the injuries caused to the plaintiff.
7. Mistake
• There are 2 types of Mistakes:
a) Mistake of Fact b) Mistake of Law
• Generally, both the mistakes are no defence in Law of Torts
• But there is an exception to this rule: When a defendant acts under honest but mistaken belief then he may take the defence of Mistake to avoid his/her liability under Law of Torts.
For Example: • Defendant published a statement that plaintiff had given birth to the twins in good faith but in reality the plaintiff got married just two months ago. The defendant was held liable for defamation and the element of good faith is immaterial in such cases.
8. Necessity
• An act done to prevent a greater harm is not actionable even though the harm was caused intentionally. • In necessity it is important to show that the act done was necessary. • For instance, if someone throws the goods from the ship to save the ship from sinking comes under this defence. • Necessity and Private Defence are different. In Necessity, there is an infliction of harm on an innocent person whereas in private defence, harm is caused to a plaintiff who himself is the wrongdoer.
For Example: • A person has to trespass into the neighbor’s land in order to save the person in the adjoining house who is on fire. Then in this case the defendant can take the defence of Necessity.
9. Statutory Authority
• The damage caused from an act which a legislation/statute authorizes or directs to be done, is not an actionable tort. • It is a complete defence and the injured party has no remedy except for the damages which the legislature has provided in the statute. • This immunity is also for all the acts which are incidental to the exercise for such authority.
For Example:
• When the noise, vibration, smoke , etc. from the trains running may cause harm to a person but no action can lie except for the payment of such compensation which the Act himself may have provided.
For Example: • The Respondent has been authorized to run the railways. On one fine day sparks from the train set fire to the Plaintiff’s woods on the adjoining lands. It was held that defendant has taken proper care to prevent the sparks from the train and they were doing nothing more than what the Statute had authorized them to do. So, they are immune and hence held not liable. ==================================== ====
