General Defences

Introduction

when the plaintiff brings an action against the defendant for a particular tort, Providing the existence of all the essential of that tort ,the defendant would be liable for the same . The defendant may avoid his liability by taking the plea of some defence ,For example in an Action for Defamation , the defences of privilege, Fair comment or justification are available .

General Defences

• Volenti non fit injuria
• Plaintiff, The wrongdoer
• Inevitable accident
• Act of God
• Private Defence
• Mistake
• Necessity
• Statutory Authority

Volenti non fit injuria

When a person consents to the infliction of some harm upon himself, he has no remedy for that in tort. In case, the plaintiff voluntarily agrees to suffer some harm, he is not allowed to complain for that and his consent serves as a good defence against him.

When you invite somebody to your house, you cannot sue him for trespass, nor can you sue the surgeon after submitting to a surgical operation  because you have expressly consented to these acts. Similarly no action for  defamation can be brought by a person who agrees to the publication of a matter defamatory of himself.

the maxim volenti non fit injuria to apply, two points have to be proved:

(i) The plaintiff knew that the risk is there.

(ii) He, knowing the same, agreed to suffer the harm.

Limitations on the scope of the doctrine

The scope of application of the doctrine of volenti non fit injuria has been curtailed-

(i) in Rescue cases, and

(ii) by the Unfair Contract Terms Act, 1977 (England).

Plaintiff the wrongdoer

Under the law of contract, one of the principles is that no court will aid a person who found his cause of action upon an immoral or an illegal act. The maxim is “Ex turpi causa non oritur actio” which means, from an immoral cause no action arises. It means that if the basis of the action of the plaintiff is an unlawful contract, he will not, in general, succeed to his action.

Inevitable Accident

Accident means an unexpected injury and if the same could not have been foreseen and avoided, in spite of reasonable care on the part of the defendant, it is inevitable accident. According to Pollock, “It does not mean absolutely inevitable, but it means not avoidable by any such precautions as a reasonable man, doing such an act then and there, could be expected to take.” It is, therefore, a good defence if the defendant can show that he neither intended to injure the plaintiff nor could he avoid the injury by taking reasonable care.

In Stanley v. Powell, the plaintiff and the defendant, who were members of a shooting party, went for 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 and the defendant was not liable.

Act of God (vis major)

Act of God is a defence. The rule of strict liability , the rule in Rylands v. Fletcher, also recognizes this to be a valid defence for the purpose of liability. under that rule. Act of God is a kind of inevitable accident with the difference that in the case of Act of God, the resulting loss arises out of the working of natural forces like exceptionally heavy rainfall storms, tempests, tides and volcanic eruptions.

Two important essentials are needed for this defence

1. There must be working of natural forces;

2. The occurrence must be extraordinary and not one which could be anticipated and reasonably guarded against.

Private Defence

The law permits use of reasonable force to protect one’s person or property. If the defendant uses the force which is necessary for self-defence, he will not be liable for the harm caused thereby. The use of force is justified only for the purpose of defence. There should be imminent threat to the personal safety or property, e.g., A would not be justified in using force against B, merely because he thinks that B would attack him some day, nor can the force be justified by way of retaliation after the attack is already over.

Mistake

Mistake, whether of fact or of law, is generally no defence to an action for tort. When a person wilfully interferes with the rights of another person, it is no defence to say that he had honestly believed that there was some justification for the same, when, in fact, no such justification existed. Entering the land of another thinking that to be one’s own is trespass, taking away another’s umbrella thinking that to be one’s own, or driving of plaintiff’s sheep amongst one’s own herd, is trespass to goods, and injuring the reputation of another without any intention to defame is defamation.

 In Consolidated Co. v. Curtis, an auctioneer was asked to auction certain goods by his customer. Honestly believing that the goods belonged to the customer, he auctioned them and he paid the sale proceeds to the customer. In fact, the goods belonged to some other person. In an action by the true owner, the auctioneer was held liable for tort of conversion.

Necessity

An act causing damage, if done under necessity to prevent a greater evil is not actionable even though harm was caused intentionally. Necessity should an infliction of harm be distinguished from private defence. In necessity, there is an on an innocent person whereas in private defence, harm is caused to a plaintiff who himself is the wrongdoer. Necessity is also different from inevitable accident because in necessity, the harm is an intended one, whereas in inevitable accident, the harm is caused in spite of the best effort to avoid it.

Throwing goods overboard a ship to lighten it for saving the ship or persons on board the ship, or pulling down a house to stop a further spread of fire are its common examples.

Statutory Authority

The damage resulting from an act, which the legislature authorizes or directs to be done, is not actionable even though it would otherwise be a tort. When an act is done, under the authority of an Act, it is complete defence and the injured party has no remedy except for claiming such compensation as may have been provided by the statute. Immunity under statutory authority is not only for that harm which is obvious, but also for that harm which is incidental to the exercise of such authority. Therefore, if a railway line is constructed, there may be interference with private land. When the trains are run, there may also be some incidental harm due to noise, vibration, smoke, emission of sparks, etc. No action can lie either for interference with the land or for incidental harm, except for payment of such compensation which the Act itself may have provided.

Reference

Law of torts – Dr r.k. Bangia

https://blog.ipleaders.in/general-defences-in-torts-an-overview/