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Complete Analysis of the General defences employed under Law of Torts

Updated: Feb 12, 2022

When the plaintiff brings an action against the defendant for a particular tort, with the existence of all the essentials of that tort, the defendant would be liable for unliquidated damages. However, even in such a case, the plaintiff can avoid his liability by taking the plea of some defences that are available under Law of Torts.


So let's discuss all of them in brief :)

(Case laws included)


1. Volenti non fit injuria:


Consent form - I agree

It basically means the voluntary assumption of risk. When a person consents to the infliction of harm upon himself, he has no remedy for that in tort making this an excellent defence for the defendant against tortuous liability. Consent forms an essential part under this doctrine- whether it is implied or expressed. It must not be obtained fraudulently (as held in R. v. Williams).


This doctrine is based on the idea that “no man can enforce a right that he himself has waived or voluntarily abandoned”. However, the harm caused must not be beyond what is consented to.


To put it simply, the act that causes such damage must be in accordance with what was consented by the plaintiff in order to avoid tortuous liability (as held in Lakshmi Raj v. Malar Hospital Pvt. Ltd- Where the plaintiff had only consented to have her appendix removed but, the surgeons had also removed the uterus from her body and therefore, went beyond the extent to what was consented for and thus, were held liable for damages).


For this principle to apply two basic conditions should be met:

  1. The plaintiff knew that the risk is mere.

  2. He, knowing the same, agreed to suffer the harm.

In Hall v. Brooklyn Racing Club:

The plaintiff was at a race where the race cars had collided causing one of them to fling into the seating area and injuring the plaintiff. It was held that the plaintiff could not recover damages as he had impliedly consented to such a risk when he came to attend the race.


Scienti non fit injuria (Mere knowledge does not imply consent):


In Smith v. Baker, the plaintiff was employed to cut rock. One of the cranes moving the cut rocks to the other side was hovering over the plaintiff’s head. That’s when one of the rocks fell and injured the plaintiff.


In this case, even though there was consent to the risk on the part of the plaintiff when he took the job, it did not mean consent to get hit and injured by rocks (i.e. suffer the harm). Therefore, the defendants were held liable.


Exceptions to Volenti non fit injuria:


Exception
  • Rescue cases:

These cases form an exception to the doctrine of Volenti non fit injuria- When the plaintiff voluntarily agrees to the risk of damage while saving/rescuing somebody from an imminent danger created by the wrongful act of the defendant, he cannot claim the defence of Volenti non fit injuria

In Haynes v. Harwood, a police officer took the risk to rescue children from the oncoming horses and as a result, suffered some serious damage. In an action against the owner of the horses, the defendant was held liable for damages as the defence of volenti non fit injuria did not apply.

  • The Act authorized is itself unlawful:

If voluntary consent is given for an act that is not allowed under the law, the actor will be liable for damages even if the consent was there. In this case, the defence of Volenti non fit injuria will not be applicable.

  • Negligence:

The defense of Volenti non fit injuria is also not applicable in cases of negligence as the basic constituent of the doctrine is consent- whether implied or expressed. But, if due to some act of the defendant, the plaintiff is not left with ample time to choose to provide consent or not, there can be no agreement to suffer harm from the said act.


2. Plaintiff the wrongdoer:


In case the plaintiff himself is the wrongdoer, it still does not make him not entitled to recover the damages in case he suffers an injury “unless some unlawful act or conduct on his own part is connected with the harm suffered by him as a consequence of the transaction”.


Therefore, a person trespassing on the defendant’s land and getting injured by an array of spring guns set by the defendant (without notice or warning) would not hinder him from claiming damages (as held in Bird v. Holbrook)


3. Inevitable accident:



An accident caused by collision of two cars on a highway

The word “accident means an unexpected injury that could not have been foreseen or avoided despite reasonable care or precaution taken by the defendant.


The phrase “inevitable accident” does not mean “absolutely inevitable”. “But, it means not avoidable by any such precautions that as a reasonable man, doing such an act then and there could be expected to take”.


In Stanley v. Powell,


The plaintiff and the defendant had gone bird shooting when one of the bullets hit a bark and rebounded causing serious injury to the plaintiff. In an action for damages, the defendant was not held liable because it was classed by the court as an inevitable accident, as there was no way the defendant could’ve foreseen that the bullet would end up harming the plaintiff.


Similarly, in Assam State Coop., etc. Federation Ltd. v. Smt. Anubha Sinha


An accidental fire was caused due to short-circuit in the premises occupied by the defendant. In an action for damages, the defendant was not held liable as it was an inevitable accident (caused in a split second due to short-circuit).


4. Act of God or viz majeure


Rain and Lightning- Act of God

This is quite similar to the defence of inevitable accidents. Act of God can be instituted whenever there has been the working of natural forces in causing an event, which could not have been reasonably expected/anticipated or guarded against, resulting in an injury to the plaintiff.


Therefore, the two essentials viz Majeure are:

  1. There must be working of natural forces.

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

In Nichols v. Marsland:

The defendant had created some artificial lakes on his land. On a day of heavy rainfall (so much so that it had broken previous records of rainfall), the plaintiff’s 4 bridges were washed away by the water overflowing from those artificial lakes. In this case, the defendant was not held liable for damages as it fulfilled the two conditions required for the Act of God i.e. the rainfall was a natural force and it fell in extraordinary amount.


However, if a building collapses due to natural amounts of rain, the defence of Act of God cannot be taken (as held in Kallulal v. Hemchand).


Act of God also cannot be claimed in case an unruly mob causes an injury (as held in Ramalinga Nadar v. Narayama Reddiar) as it does not qualify as a natural force.


5. Private Defence:


The law permits a person to use reasonable force to protect himself or his property, provided:

  • There is an imminent threat to personal safety or property.

  • The use of such force is absolutely necessary to repel the invasion/attack.

  • The force used is not used out of proportion to the apparent urgency of the occasion.

The danger, therefore, has to be apparent and not assumed or mere anticipation. But, the private defence does not mean that one can install spring guns (as in Bird v. Holbrooke), live electric wires, predatory fencing, etc. to protect their property as it will result in “out of proportion” use of force to an anticipated danger not imminent.


In Collins v. Renison:

The plaintiff had gone up a ladder to nail a board on a wall outreaching the defendant's garden and window. The defendant, fearing burglary, shakes the ladder and it falls resulting in the plaintiff’s injury. In an action for assault, it was held that the force used by the defendant was not justified and was liable for the damage.


6. Mistake:


Mistake of whether the law or of fact is not considered a great defence in action for tort (as held in Cherubin Gregory v. the State of Bihar). When a person willfully interferes with the rights of another person then it is no defence to say that he had honestly believed that there was justification for the same when, in fact, no such justification existed.


In Consolidate Co. v. Curtis:

The defendant auctioneer had auctioned goods, believing they belonged to the real owner, and then sent him the proceeds. In an action by the actual owner, the auctioneer was held liable for the tort of conversion and his defence of ‘mistake of fact’ had been rejected.


#Note- However, in this rule, there are some exceptions when the defendant may be able to avoid his liability by showing that he acted under an honest but mistaken belief. This happens in cases of malicious prosecution when the defendant can prove the plaintiff to have mala fide intentions behind bringing an action over a trivial matter and without reasonable cause.


In Derry v. Peek, an honest belief in the truth of a statement was enough to prove the mistake of fact as a good defence against tortuous liability.


But still, in most cases, saying...

It began as a mistake- glowing signboard

won't help your case :)

7. Necessity:


If an act causing damage, is done under a necessity to prevent a greater evil/wrong is not actionable in tort.


This statement stands true even though in these scenarios, the harm is caused intentionally. It is distinct from private defence because it is done for the greater good and the harm is intentional whereas, in private defence, the harm is caused to the plaintiff who himself is the wrongdoer.


It is also distinct from an inevitable accident because, in the latter, the harm is caused despite the best efforts to avoid it whereas, in the necessity, the harm is caused intentionally to avoid a greater harm/evil.


For example, it would not actionable if a surgeon operates on an unconscious person in order to save his life or a person deliberately hitting an uncontrollable car in order to stop it from going onto the footpath and harming pedestrians.



Portrait of Oliver Cromwell



The defence of necessity is based on the principle- “Necessity knows no law”- by Oliver Cromwell.







In Leight v. Gladstone:

Forcibly feeding a hunger-striking protestor in order to save her life was held not actionable as it was a necessary thing to do. It served as an appropriate defence for the tort of battery.


Similarly, in Carter v. Thomas:

The defendant had entered the plaintiff’s premises in good faith (bona fide intention) to extinguish a fire. It was proven that he was working under a necessity to prevent its further spread and therefore, was not held liable for the tort of trespass.


8. Statutory Authority:


When the legislature or the law-making body of a land authorizes or directs something to be done then the damage resulting from such act, will not be actionable. This is even if such an act constitutes the commission of a tort. When an act is done under a statutory authority/duty, it is a complete defence in itself. However, the injured party can claim damages to the extent of which is provided under such statute.


Statute- The Law and Judge's gavel


In Brand v. Hammer Smith Rail Co.

The value of the plaintiff’s land had depreciated heavily due to the fumes, noise, and vibration caused by the nearby construction of railway lines under statutory authority. In an action by the plaintiff, it was held that the defendant had acquired the right to construct railway lines under Statutory Authority and was, therefore, not actionable.


The shield of immunity offered under statutory authority is not only for the harm that is obvious but also for the harm that is incidental to the exercise of that authority. Statutory authority is offered in two ways:

  • Absolute

Under this type of authority, anything done in course of engagement under statutory authority is not actionable. The most common example of this would be the construction of railways under most Railway Acts.

  • Conditional

Under this type of authority, the act authorized should be done without causing nuisance or some other harm during the course of engagement under such authority.

In Metropolitan Asylum District v. Hill,

The appellants were authorized under a statutory duty to construct a hospital in a residential area. They did so but, increased the chances of infection to the residents of that area as proper measures to avoid such were not taken by the constructors. It was held to be a tort of nuisance and the appellants were given an injunction to remove operations in the hospital.

In this case, the statutory authority was construed to have been conditional in nature. That means, they were authorized to construct the hospital but with reasonable care and precaution so that it did not cause any nuisance to the residents of that area.


Check out the rest of our coverage of the Law of Torts, HERE.


Hope this was helpful, thanks for sticking around :)

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