GENERAL DEFENCES UNDER TORT LAW

Ordinarily, in tort law, the defendant/ tort-feasor will be held liable given all essentials are fulfilled, however, there are some general defences available to him/her to get rid of the liability arising out of the tort. These are known as ‘General defences’ in the law of tort. The defences available are as follows:

  1. Volenti non fit injuria – When a person consents to infliction of some harm upon himself, he/she has no remedy for that in tort. Essentials to be proved for taking this defence are- 1. The plaintiff knew that the risk exists and 2. knowing the same, he/she agreed to suffer the harm.

In Hall v. Brooklands Auto Racing Club, the plaintiff was a spectator at a motor car race on a track owned by the defendant company. During the race, there was a collision between two cars, one of which was thrown among the spectators, thereby injuring the plaintiff. It was held that the plaintiff implicitly took the risk of such an injury. The danger is inherent in the sport which any spectator could foresee hence, the defendant was not liable. In this defence, it is also necessary that the plaintiff’s consent is free.

  1. Plaintiff the wrongdoer – The law excuses the defendant when the act done by the plaintiff itself was illegal or wrong. This defence arises from the Latin maxim “ex turpi causa non oritur action” which means no action arises from an immoral cause. In Bird v Holbrook, the plaintiff, who trespassed over the defendant’s land was entitled to claim compensation for injury caused by a spring gun used by the defendant, without notice, in his garden.
  2. Inevitable Accident – Accident means an unexpected injury and if the same could not have been foreseen or avoided, in spite of reasonable care on the part of the defendant, then it can be termed as an inevitable accident. It is, therefore, a good defence if the defendant can show that he/she neither intended to injure the plaintiff nor could he/she avoid the injury by taking reasonable care. 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 a tree hit the plaintiff and he suffered serious injuries. The incident was considered an inevitable accident and the defendant was held not liable.
  3. Act of God – It is a kind of inevitable accident in which the natural forces play their role and cause the damage. For e.g., heavy rainfall, storms, etc. Essentials required for this defence are-

1. There must be working of natural forces. In Ramalinga Nadar v. Narayana Reddiar the plaintiff had booked goods with the defendant for transportation. The goods were looted by a mob, the prevention of which was beyond the control of the defendant. It was held that every event beyond the control of the defendant cannot be said to be the Act of God. Only those acts which can be traced to natural forces and which have nothing to do with the intervention of human agency that could be an aid to the act of God.2. Occurrence must be extraordinary. In Nichols v. Marshland, the defendant created an artificial lake on his land. Once there was an extraordinary rainfall, heaviest in human memory. The embankments of the lake got destroyed and washed away all the 4 bridges belonging to the plaintiff. The court held that the defendant was not liable as the same was an Act of God.

4. Private defence – The law has given permission to protect one’s life and property and for that, it has allowed the use of reasonable force to protect oneself and one’s property. But, the use of force is justified only for the purpose of self-defence and there should be an imminent threat to a person’s life or property. In Bird v. Halbrook, the defendant, had kept a spring gun in his garden, since flowers were often stolen from his garden. The plaintiff, a boy whose fowl had strayed away, jumped into the defendant’s garden to search for it. He had no knowledge about the gun there and got injured. The court held that the defendant was liable since he had exceeded the right of private defence to his property.

5.Mistake – Mistake, whether of fact or of law, is generally no defence to an action for tort. 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 the auctioneer liable and mentioned that the mistake of fact is not a defence that can be pleaded here. To this rule, there is some exception when the defender may be able to avoid his/her liability by showing that he/she acted under an honest but mistaken belief.

6) Necessity – If an act is done to prevent greater harm, even though the act was done intentionally, is not actionable and serves as a good defence. 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. If that interference is not reasonably necessary, the defender will be liable. In Carter v. Thomas, the defender, who entered the plaintiff’s premises in good faith to extinguish a fire at which the fireman had already been working, was held liable for trespass.

7) Statutory Authority – If an act is authorized by a statute or legislation, 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. In Bhogilal v. Municipality of Ahmedabad, case, the defendant demolished a wall of the plaintiffs under their statutory powers. The roof of the plaintiff also collapsed in the process. The court held that no suit will lie against the defendant, as they have carried out their duty under statutory powers although the plaintiff has suffered injury.

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