General defences under law of torts

Whenever a case is brought against the defendant for the commission of a tort
and all the essential elements of that wrong are present, the defendant would
be held liable for the same. Even in such cases, the defendant can avoid his
liability by taking the plea of the defenses available under the law of torts.

Some defences are particularly relating to some offences. In the case of

defamation, the defences available are fair comment, privileges and
justification, etc.

Meaning of general defence

When a plaintiff brings an action against the defendant for a tort committed by
him, he will be held liable for it, if there exists all the essential ingredients which
are required for that wrong. But there are some defences available to him using
which he can absolve himself from the liability arising out of the wrong
committed. These are known as ‘General defences’ in the law of tort.

The defences available are given as follows:

 Volenti non fit injuria or the defense of ‘Consent’

 The wrongdoer is the plaintiff

 Inevitable accident
 Act of god
 Private defense
 Mistake
 Necessity
 Statutory authority

1. Volenti non fit injuria

In case, a plaintiff voluntarily suffers some harm, he has no remedy for that
under the law of tort and he is not allowed to complain about the same. The
reason behind this defence is that no one can enforce a right that he has
voluntarily abandoned or waived. Consent to suffer harm can be express or
implied.
Some examples of the defence are:

 When you yourself call somebody to your house you cannot sue your
guests for trespass;
 If you have agreed to a surgical operation then you cannot sue the
surgeon for it

The consent must be free

 For this defence to be available it is important to show that the consent
of the plaintiff was freely given.
 If the consent was obtained under any compulsion or by fraud, then it
is not a good defence.
 The consent must be given for an act done by the defendant.

Mere knowledge does not imply assent

For the applicability of this maxim, the following essentials need to be present:

 The plaintiff knew about the presence of risk.

 He had knowledge about the same and knowingly agreed to suffer
harm.

Negligence of the defendant

In order to avail this defence it is necessary that the defendant should not be
negligent. If the plaintiff consents to some risk then it is presumed that the
defendant will not be liable.

For example, when someone consents to a surgical operation and the same
becomes unsuccessful then the plaintiff has no right to file a suit but if the same
becomes unsuccessful due to the surgeon’s negligence then in such cases he
will be entitled to claim compensation.

In Slater v. Clay Cross Co. Ltd.[13], the plaintiff suffered injuries due to the
negligent behaviour of the defendant’s servant while she was walking along a
tunnel which was owned by the defendants. The company knew that the tunnel
is used by the public and had instructed its drivers to give horns and drive
slowly whenever they enter a tunnel. But the driver failed to do so. It was held
that the defendants are liable for the accident.

Limitations on the doctrine’s scope

The scope of the maxim volenti non fit injuria has been curtailed in the following
cases:

Rescue cases
 When the plaintiff voluntarily comes to rescue someone from a danger
created by the defendant then in such cases the defence of volenti non
fit injuria will not be available to the defendant.
In Haynes v. Harwood[14], the defendants’ servant left two unattended horses
in a public street. A boy threw a stone on the horses due to which they bolted
and created danger for a woman and other people on the road. So, a constable
came forward to protect them and suffered injuries while doing so. This being a
rescue case so the defence of volenti non fit injuria was not available and the
defendants were held liable.

CONSENT BY FRAUD

 Consent obtained by fraud is not real consent and does not serve as a
good defence.
In Hegarty v. Shine[7], it was held that mere concealment of facts is not
considered to be a fraud so as to vitiate consent. Here, the plaintiff’s paramour
had infected her with some venereal disease and she brought an action for
assault against him. The action failed on the grounds that mere disclosure of
facts does not amount to fraud based on the principle ex turpi causa non
oritur actio i.e. no action arises from an immoral cause.

 In some of the criminal cases, mere submission does not imply consent
if the same has been taken by fraud which induced mistake in the
victim’s mind so as to the real nature of the act.
 If the mistake induced by fraud does not make any false impression
regarding the real nature of the act then it cannot be considered as an
element vitiating consent.
In R. v. Wiliams[8], a music teacher was held guilty of raping a 16 years old girl
under the pretence that the same was done to improve her throat and
enhancing her voice. Here, the girl misunderstood the very nature of the act
done with her and she consented to the act considering it a surgical operation to
improve her voice.

BREACH OF STATUTORY DUTY

It is also a case in which this defence is not given . do read

CASES OF VOLENTI NON FIT INJURIA

In Hallv. Brooklands Auto Racing Club[1], the plaintiff was a spectator of a
car racing event and the track on which the race was going on belonged to the
defendant. During the race, two cars collided and out of which one was thrown
among the people who were watching the race. The plaintiff was injured. The
court held that the plaintiff knowingly undertook the risk of watching the race. It
is a type of injury which could be foreseen by anyone watching the event. The
defendant was not liable in this case.

In Padmavati v. Dugganaika[2], the driver of the jeep took the jeep to fill
petrol in it. Two strangers took a lift in the jeep. The jeep got toppled due to
some problem in the right wheel. The two strangers who took lift were thrown

out of the jeep and they suffered some injuries leading to the death of one
person.

The conclusions which came out of this case are:

 The master of the driver could not be made liable as it was a case of a
sheer accident and the strangers had voluntarily got into the vehicle.
 The principle of Volenti non fit injuria was not applicable here.

Travelling in motor cases

If a person knowingly that the driver is drunken has boarded his car ,
and suffers the injury no defence will be given as it is plaintiff own
negligence .

Case law – DANN vs. HAMILTON

(MENTION IPC PROVISIONS OF SECTION 89-91) , WHILE WRITING ANSWERS.

 2. Plaintiff is the wrongdoer

There is a maxim “Ex turpi causa non oritur actio” which says that “from an
immoral cause, no action arises”.

If the basis of the action by the plaintiff is an unlawful contract then he will not
succeed in his actions and he cannot recover damages.

If a defendant asserts that the claimant himself is the wrongdoer and is not
entitled to the damages, then it does not mean that the court will declare him
free from the liability but he will not be liable under this head.

In the case of Bird v. Holbrook[18], the plaintiff was entitled to recover

damages suffered by him due to the spring-guns set by him in his garden
without any notice for the same.

In Pitts v. Hunt[19], thekre was a rider who was 18 years of age. He

encouraged his friend who was 16 years old to drive fast under drunken
conditions. But their motorcycle met with an accident, the driver died on the
spot. The pillion rider suffered serious injuries and filed a suit for claiming
compensation from the relatives of the deceased person. This plea was rejected
as he himself was the wrongdoer in this case

3. Inevitable accident

Accident means an unexpected injury and if the same accident could not have
been stopped or avoided in spite of taking all due care and precautions on the
part of the defendant, then we call it an inevitable accident. It serves as a good
defence as the defendant could show that the injury could not be stopped even
after taking all the precautions and there was no intent to harm the plaintiff.

In Stanley v. Powell[20], the defendant and the plaintiff went to a pheasant

shooting. The defendant fired at a pheasant but the bullet after getting reflected
by an oak tree hit the plaintiff and he suffered serious injuries. The incident was
considered an inevitable accident and the defendant was not liable in this case.
In Nitro-Glycerine case[26], A firm of carriers i.e. the defendants, in this case,
was given a wooden case which was to carry from one place to another. The
contents of the box were unknown. There was some leakage in the box and the
defendants took the box to their office so that they can examine it. After taking
out the box, they saw that it was filled with Nitro-Glycerine and then it suddenly
exploded and the office building which belonged to the plaintiffs got damaged.
The defendants were held not liable for the same as the same could not be
foreseen.

4. Act of god

Act of God serves as a good defence under the law of torts. It is also recognized
as a valid defence in the rule of ‘Strict Liability’ in the case of Rylands v.
Fletcher[28].

The defence of Act of God and Inevitable accident might look the same but they
are different. Act of God is a kind of inevitable accident in which the natural
forces play their role and causes damage. For example, heavy rainfall, storms,
tides, etc.

Essentials required for this defence are:

 Natural forces’ working should be there.

 There must be an extraordinary occurrence and not the one which
could be anticipated and guarded against reasonably.

Working of natural forces

In Nichols v. Marsland[30], the defendant created an artificial lake on his land
by collecting water from natural streams. Once there was an extraordinary
rainfall, heaviest in human memory. The embankments of the lake got
destroyed and washed away all the four bridges belonging to the plaintiff. The
court held that the defendants were not liable as the same was due to the Act of
God.

Occurrence must be extraordinary

Some extraordinary occurrence of natural forces is required to plead the
defence under the law of torts.

In Kallu Lal v. Hemchand[31], the wall of a building collapsed due to normal

rainfall of about 2.66 inches. The incident resulted in the death of the
respondent’s children. The court held that the defence of Act of God cannot be
pleaded by the appellants in this case as that much rainfall was normal and
something extraordinary is required to plead this defence. The appellant was
held liable.

An Occurrence Not Reasonably Forseeable

The basic and prime element of an act of god is the happening of an unforeseeable event. For this, if
the harm or loss was caused by a foreseeable accident that could have been prevented, the party
who suffered the injury has the right to compensation. However, the damage caused by an
unforeseen and uncontrollable natural event is not compensable as it could not have been prevented
or avoided by foresight or prudence of man.

Moreover, courts are of the opinion that the act of God defence exists only if the event is so
exceptional and could not have been anticipated or expected by the long history of climate variations
in the locality. It is constructed by only the memory of man i.e. recorded history. The courts may
demand expert testimonies to prove that an event was unforeseeable.

Conclusion:
Although the act of God defence- that a defendant is insulated from liability for personal injury or
property damages caused by a natural cause � is rarely used, it may become more common and
general in the future if predictions of disastrous weather events caused by global warming prove
true. One prediction related to global warming is that catastrophic weather events such as
hurricanes, tornados, and torrential rains will occur more often. All of these have the potential for
causing extensive personal injury and property damage and consequently mental trauma.

5. Private defence
Read from book

6. Mistake

The mistake is of two types:

 Mistake of law
 Mistake of fact
In both conditions, no defence is available to the defendant.

When a defendant acts under a mistaken belief in some situations then he may
use the defence of mistake to avoid his liability under the law of torts.

In Consolidated Company v. Curtis[36], 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
auctioneer liable and mentioned that the mistake of fact is not a defence that
can be pleaded here.

7.Necessity
Read from the book .

8.STATUTORY AUTHORITY

If an act is authorized by any act or statute, 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.

Immunity under statutory authority is not given only for the harm which is
obvious but also for the harm which is incidental.

In Hammer Smith Rail Co. v. Brand[42], the value of the property of the
plaintiff depreciated due to the loud noise and vibrations produced from the
running trains on the railway line which was constructed under a statutory
provision. The court held that nothing can be claimed for the damage suffered
as it was done as per the statutory provisions and if something is authorized by
any statute or legislature then it serves as a complete defence. The defendant
was held not liable in the case.

DO REFER BOOK ALSO .