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General defences in tort

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Tortious liability

Meaning of General Defences 

When a person brings a suit against the wrongdoer for a wrong (tort)  committed by him, the wrongdoer will be liable for the wrong (tort) if all essential ingredients exist  for that tort exist.

If the tort comes into the category of general defence then  the wrongdoer will not be liable for the wrong (tort).  There are some defences available in law of torts.

These are called ‘general defences’ and these are the situations in which the wrong act would n’t be considered as a tort and the defedant would not be liable for that act.These are also called general exceptions to liability in torts.

The general exceptions are situations in which an act done is not considered a tort at all. Such exceptions are called general exceptions. The following are the main exceptions to tort.

‘General Defences’ are following-

  • Volenti non fit injuria
  • Plaintiff the Wrongdoer
  • Inevitable Accident
  • Acts of God
  • Private Defence
  • Torts done by Mistake
  • Acts of Necessity                
  • Statutory Authority
  • Acts causing light harm
  • Exercise of Common rights
  • Parental and quasi- parental authority
  • Quasi – judicial acts
  • Executive acts
  • Judicial Acts
  • Acts of State

I Volenti non fit injuria

Acts done with the consent of the plaintiff are not injurious in the eyes of law (volenti non fit injuria) and hence not enforceable. Loss caused voluntarily is never considered legal damage and no action is taken against it. The same principle is expressed by the formula  “Volenti non fit injuria”.

Consent means that the loss caused voluntarily does not cause any legal injury and is not actionable. If a person willfully voluntarily invites a crisis, he cannot sue for it. Consent may be express or implied or may be inferred by conduct. For the defense of consent to be accessible, it is necessary that the consent of the plaintiff should be free. If the consent of the plaintiff is to the effect of fraud, compulsion or error, then such consent is not valid as a defense. When a person is unable to give his consent due to unsoundness of mind or minority, the consent of such person’s parent or guardian is sufficient.

The consent of the plaintiff can be in any form, express or implied.

 For example, the consent of a doctor for surgery, the implied consent of a player during cricket or other sports that no action can be taken if the player is injured in the normal course of play. This means that where the person voluntarily inflicts damage, there is no legal damage. The general exceptions are situations in which an act done is not considered a tort at all. Such exceptions are called general exceptions.

Smith vs Baker (1819)     

According to Lord Herschel – When the plaintiff himself invokes the event or calls the event or the event happens with his consent, the damage is not enforceable in the eyes of law, so the plaintiff cannot claim compensation.

The principle is that each individual is the best judge of his own interest. If he knowingly takes a risk, his injury is not considered significant in the eyes of law. Similarly, if a person renounces any of his rights, he will not be able to take advantage of it again. The basis of the defense available under this statement is consent or licence.

Limitations of the said principle-

1. Consent should be free and voluntary.

 2. Consent should not be illegal.

3. Knowledge of danger is not mere consent to risk taking.

4. This principle does not apply in cases of negligence (Pramad’s cases).

5. This principle does not apply in rescue cases .

  1. Consent should free and voluntarily.

Consent should be free i.e. consent is obtained neither by coercion nor by exercise of influence. Similarly, if the consent has been obtained by deception or misbehavior, then this consent will not be free and voluntarily.

In the latter part of R. Vs Williams, the appellant was a music teacher of a 16-year-old girl. He had sexual intercourse with her on the pretext that he was working to improve her voice. The girl had no knowledge that he was going to rape her otherwise she would not have consented for him, as she had not understood the nature of the act properly. The court convicted the music teacher of rape.

But when consent is given voluntarily with knowledge of the danger, the formula for voluntarily caused damages applies.

 As in the case of Bucket v. Otus, the plaintiff was a child who voluntarily agreed to move in the defendant’s car whereas  the defendant himself was a child. Due to the carelessness of the respondent, the car rammed into a wall, injuring the plaintiff. The Court held that the plaintiff, who was himself a child, could not exercise any right which he had voluntarily relinquished. Thus the statement that ‘action done with consent is not injurious’ succeeds in the defense

If the plaintiff is not free to express his consent voluntarily, the defendant will not get the benefit of the defense of the consent.

 As in Bowater v. Rowley Regis Corporation, the plaintiff was a servant to drive a horse-drawn cart of the defendant. Both the plaintiff and the defendant were aware of the tendency of the horse to scavenge. The plaintiff, following the orders of the defendant’s owner, accepted to drive the horse. When he began to take the horse out of the stables for plowing, the horse hit , injuring the plaintiff. The court here did not apply the principle of ‘voluntary non fit injury’ and held that the plaintiff is entitled to damages. He was compelled to obey the orders of the master and according to his free thought he would never dare to take hold of the horse. In this situation his knowledge of danger does not represent danger.

2. Consent should not be illegal.

The act for which the consent has been given should not be illegal. Like fighting duels with sharp-edged weapons or participating in boxing, etc. Consent cannot make an illegal act legal, if the act is in the form of an offence, then consent cannot make it legal. No person can allow another person to commit an offence.

3. Knowledge of danger is not mere consent to take a risk

Smith v. Wacker(1891) According to Lordshell

 In the present case, the plaintiff was a stone cutter and during that time a train laden with pieces of stone used to pass over his head. The artisan was damaged by the falling of a piece of stone. On suing, the defense of “scienti non fit injuria”.  Therefore, the principle “Volenti non fit injuria” will not apply.

4. This principle does not apply in case of negligence (Pramad’s case).

 Dan vs Hamilton (1939) According to Lord Asquith

 In the present case, the taxi driver was drunk. Knowing this, the plaintiff agreed to travel. The plaintiff was damaged due to neglectful operation. On bringing the suit, the defendant resorted to volenti non fit injuria. But Lord Asquith said that in Pramad’s case the principle of “volenti non fit injuria” cannot be applied.

At the same time, the negligence of the driver is also proved in this and since this statement does not apply to the tort of negligence, the plaintiff is entitled to get damages.

5. In the case of rescue, this principle does not apply.

 Hens v. Harwood (1935) Lord Justice Grier

The defendant acted with utmost care by leaving the horse cart on a public road. The horse-drawn carriage flared up when the children threw stones. Due to which the problem of saving lives arose. The plaintiff got hurt while controlling the horse cart. On bringing the suit, the defendant resorted to “volenti non fit injuria” . Lord Grier propounded the principle that in the said case the principle of volenti non fit injuria” , does not apply because in the two circumstances the principle does not apply.

1. When there is a problem of survival.

2. Circumstances are the result of the defendant’s negligent actions.

This post is relevant to General defences in tort

General defences in tort

II. Plaintiff the Wrongdoer

The law pardons the defendant when what the plaintiff himself did was illegal or wrong. This defense derives from the Latin maxim “ex turpi causa non oritur action” which means no action arises from an immoral cause. So an illegal act by the plaintiff cannot lead to a legal defense in Torts. This maxim applies not only to law of tort but also to contracts, restorations, property and trusts. Where Maxim is successfully applied it acts as a thorough bar of recovery. This is usually referred to as the defense of illegality, although it extends beyond immorality to unethical behavior.

In Bird v. Holbrook[1] Plaintiff, the intruder (tresspasser) on the defendant’s land was entitled to claim compensation for injuries caused by a spring gun used by the defendant in his garden withoutnotice.

“ trespasser is liable to an action for the injury which does: but he does not forfeit his right of an action for injury sustained.”

As per Sir Federick Polllock if the plaintiff himself is a wrongdoer then he would be not disabled from recovering in tort “ unles some unlawful act ot conduct on his own part is connected with the harm suffered by him as part of the same transaction.”

Thus, it is necessary to see the connection between the plaintiff’s wrongdoing and the damage suffered by him. If his own work is the determining cause of the damage suffered by him, then there is no reason for his action.

For example-

A bridge controlled by the defendant gives way when an overloaded truck owned by the plaintiff passes through it. If the truck is overloaded, contrary to the warning notice already given and if the truck is loaded properly, the bridge will not give way, the wrongdoing of the plaintiff is the determining cause of the accident.

 In that case, even if the bridge is not properly repaired, the action of the plaintiff will fail.

On the other hand, if the wrongdoing of the defendant, not the plaintiff, is the deciding factor in the accident, then the defendant will be liable. In the example above, if the bridge was so badly maintained that the truck could have been given way even if it had been properly loaded, the plaintiff’s action would have been successful. Thus, if the plaintiff’s being a wrongdoer is an act completely independent of his damages, the defendant cannot plead that the plaintiff himself is a wrongdoer.

As we have seen above, the plaintiff alone is not guilty of any wrongdoing. He can claim compensation if his wrongdoing is completely independent of his loss. He may lose his deeds if his wrongdoing is the real cause of his loss.

There may be another situation and that is contributing negligence. In such a case, the plaintiff is eligible to claim compensation but is reduced in proportion to his own guilt in the matter of compensation payable to him.

III Inevitable Accident

According to Sir Frederick Pollock, an inevitable accident is an event which a man of common sense cannot prevent, even after taking the necessary precautions or caution under the circumstances in which it occurs.
The Marpecia, (1872) L. R. 4 Privi counsil 212
These are such acts which a person with common sense and necessary vigilance cannot prevent under the circumstances in which they occurred.

Farden v. Harcourt Rivington, (1932) 146 L.T. 391
In this suit, the respondent had left his pet dog in the car after closing the outside doors of the car on the road. Meanwhile, the plaintiff was going on the road that the dog barked and ran towards the plaintiff, due to which the glass in the door was broken and its piece got into the eye of the plaintiff, due to which the plaintiff had to remove his eye . The plaintiff filed a claim for damages against the defendant.
It is held that the defendant was not liable to the plaintiff, as leaving the dog in the vehicle was neither a dangerous act nor could there be any apprehension of accident. Giving the judgment, Lord Dunedin said that “people should be wary of reasonable probabilities, but they are not obliged to provide protection against imaginary possibilities.”
If an act done in a careful manner causes any damage and occurs in a circumstance which could not have been prevented, then no ground for prosecution for damages is made.
Stanley vs. Powell (1891)1 Q.B. 86 In this suit the plaintiff and the defendant were members of a hunting party. The respondent fired at a bird. The bullet hit the tree trunk and hit the plaintiff due to which he was injured when he was carrying cartridges for the party. Damage was claimed by plaintif. The court rejected the claim.
Brown Vs Candle (1859) 6 Kasing 292
Once the dogs of the plaintiff and the defendant were fighting among themselves. The defendant was beating the dogs to free them and the plaintiff was standing there watching the incident. Meanwhile, the plaintiff suffered an eye injury by the defendant. The plaintiff sued the defendant for damages. The Court held that the act of the respondent was an inevitable event, in which there was no mention of carelessness or vigilance. Separating the fighting dogs was a just act and in the meantime the plaintiff has no right to get damages if the plaintiff is hurt in the eye.

IV. Act of God

Act of God or Vis Major

According to Sir Federick Polock “ Act of God is an operation of natural forces so unexpected that no human foresight or skill could reasonably be expected to anticipate it.”

The defence from act of god will be available only when the following elements are present.

 1. The event should be happen due to natural forces.

2. Events should be unusual, extraordinary  and unforeseen, or which cannot be reasonably protected.

 Therefore, those actions whose source is natural forces and which are not related to any human agency, can be called act of god.

 In the case of Saraswati Parabhai Vs Grid Corporation of Orissa and others, where an electric pole fell on the road and a person died due to touching the electric wire. The argument that if the storm does not come, then the pole does not fall was not considered. The officials were expected to install such poles in such a way that they do not fall with the electric current. The defense of the divine act was not accepted.

 Therefore, those actions, whose source is natural forces and which are not related to any human agency, can be called Act of god.

In the case of Nichols v Marsland ( 1875)

 There were three artificial lakes on the defendant’s land: The water in it came from a natural spring. Due to the unusual rainfall, these lakes were filled and the water broke through their banks and started flowing on the land of the plaintiff. In the flow of water, the goods of four bridges of the plaintiff were washed away. It was held that the respondent was not liable, as the said accident was a act of god which the defendant could not foresee.

In modern times the scope of this defense is becoming very limited.

  Greenak Corporation v. Caledonian Railway (1971) AC 556

 In this case, the   Greenak  Corporation built an artificial lake at the bottom of a stream, for which purpose they had to change the direction of the spring. Due to the extraordinary rains, the pond was filled up to the top by the flow and the water flowed over it and came on the public road. This resulted in substantial damage to the property of the plaintiff. If the direction of the spring had not changed, the water would have flowed into the stream. The House of Lords held that the defendant is liable as rain is not an act of god. With the help of scientific inventions and tools, now there is a prior knowledge about such an accident which could not be predicted in ancient times. For this protection, it is not necessary to prove that the damage was caused by any natural phenomenon, but it has to be proved that natural events of this level do not occur at that particular place.

V. Private Defence

The law allows the use of reasonable force to protect a person or property. If the defender uses the force necessary for self-defense, he will not be held responsible for the damage caused by it.

No action can be taken against any person who causes injury to any person in his defense or in defense of his property or in defense of persons to whom he is bound to defend.

 The condition is that the power usage should not be more than the proportion of the loss and should not be more than the requirement.

 In Turner v Jagmohan Singh,

 a wicked horse attacked the horses being plowed in the defendant’s horse cart and entered the defendant’s compound. He continued his attack even in the compound. The defendant hit him with a spear causing serious injuries to the horse. The horse died a few days later as a result of these injuries. It was held that the defendant’s act was just and the owner of the horse could not obtain damages from the defendant.

 In the latest judgment of Devendra Bhai Vs Meghu Bhai et al. (AIR 1986), the respondent had struck the plaintiff to protect his father. The Court observed that the principle of personal defense is not only limited to the right to self-protection, but also extends to the safety of other persons such as the safety of his wife, parents and his children.

 The exception of personal defense shall apply only if-

1. When force is used in self-defense when an imminent danger to the person’s body or property has arisen and

2. In such a situation, force should be used only as much as is necessary.

 If someone slaps me, I cannot fire a pistol to protect myself.

The exception of personal defense only gives the right of defense, when we come to the rescue situation, this right of ours ends.

 In Creswell v. Searle, the Court held that balanced force should be used in personal defence, with no other means of defence, more force could be used on the person causing harm. In this case, the pet pigs of the respondent and the children of goats were attacked by the plaintiff’s dog to great harm. The respondent therefore shot the dog to death. The plaintiff claimed damages for the dog being killed. The Court held that the onus of justifying the killing of the dog by shooting was on the defendant and that the defendant had to prove two things in main. There was no other means of stopping the attack. Therefore, the defendant used a just method.

XII  Quasi – Judicial Acts

There are many such autonomous institutions and bodies which make their own bye-laws to run their administration and decide the cases in a fair manner. Universities, clubs and societies etc. are such autonomous institutions. These institutions get such authority from the legislature. This judicial authority is called Quasi – Judicial authority. In this way, there are also persons who perform judicial functions. Such persons, institutions and bodies are free from civil liability in so far as they act in accordance with natural justice. An important rule of natural justice is that an employee shall not be removed from his seat or membership unless he has been given notice or notice in accordance with the rules and an opportunity of saying something in his defence. The decision in his case will also be taken with utmost integrity. In this way, if all things are done duly, then there will be no need for the court to interfere in such a matter, even if the decision of the quasi – Judicial  is wrong. Decisions given in a malicious manner and contrary to the rule of natural justice will be quashed.

Describing the general principles regarding the obligations of such institutions and bodies in the case of Indian v Mardchell (1905), it has been said that if they act in compliance with the rules of justice and legal rules and customary rules, then they will be protected from unjust liability. An important rule of natural justice is that an employee or member can be removed from the office of any institution or body only if-

The action was taken in good faith.

Sufficient information has been given to the guilty about the offence.

 He has been given an opportunity to say something in his defence.

If all these conditions are duly complied with, the Court will not interfere in such matters even if the judgment appears to be wrong.

 In Innes v. Wally (1844) also a society removed one of its members who had used abusive language against another member, but no notice was given to him to vacate membership. The court ruled that it was illegal to remove that member without notice. Because giving information is a rule of natural justice, it was necessary that the said person would have been informed before dissolution from the membership. It is held that his expulsion was illegal and that he was still a member of the club.

XIII Executive Acts

When an officer commits tort in the performance of the order of a public officer, he cannot be prosecuted under the tort law. Because if the public officer does not get such a right, then the work of the government will become impossible. This principle is so pervasive that whenever private persons also prove helpful in the observance of the law, then they also get protection. But if the Government servant goes outside his jurisdiction, he will be held liable for the illegal act and will not be able to escape the consequences of the illegal act done by him. If a government servant commits a mistake of fact, then he does not get the exemption or entitlement that is available to him by mistake of law. In short, when government officials have been given special legal authority to do any work, they should strictly follow the rules of law in the exercise of these rights. Clarke vs Brijendra Kishore Nath Choudhary

Officers are reserved to perform those works related to governance for which there is a clear provision in the legislation. An officer shall not be liable for doing any act recognized by law unless someone proves that the Government servant has done that act out of malice or with bad intention. When a public official has been given legal power to do any act, he should exercise those rights within the limits prescribed by law. Violation of these limits would not have provided protection against acts of tort.

 Two cases of this topic are noteworthy –

Narasimha Vs Imam and

Assam Aliyar Marekayar Vs Nodar.

Many such Acts have been passed in India which exempt government servants from any action against the acts done in the performance of their duties, if they have not done such acts with any malicious intent or wrong intention.

XIV Judicial Acts

Judicial Acts

No judge can be prosecuted for carrying out his judicial duties or for the words used for him or for the exercise of his authority. Even if such acts are full of animosity and are not done honestly. Judicial privilege is based on the principle of public interest that judges should be completely free to perform their duties and make decisions without having to face any adverse consequences. The purpose of this protection is to enable judicial officers to carry out the work of administration of justice smoothly without any fear.

 Peacock v. Bell – This right is enjoyed not only by judges but also by magistrates who perform judicial functions. But there is a difference between the upper and lower courts under English law. In lower class courts, the judge has to show that at the time of the alleged act, he was doing the work to which he was entitled. But in the case of high courts, the plaintiff has to prove that the court did not have jurisdiction.

Ten vs. Ramlal

In Indian law, the Judicial Officer Protection Act, 1850 provides such protection to judges. There is no difference between upper class and lower class courts. No judge or other person shall be held liable in a civil court for his or her judicial duties, for the work he or she has done in the performance of his or her duties. The condition

 is that it should be  done within the limits of authority.

Colder v. Halket – If a judge voluntarily abuses his / her jurisdiction, it will be deemed to have been done voluntarily or out of jurisdiction and the affected person also has the right to take action against the judge in such case.

In the suit of Girja Shankar v. Gopal ji, it was stated that in order to get protection under the Judicial Officers Protection Act, 1850, the defendant has to prove that – the disputed act was done while performing judicial act, or was ordered . It  was within the limits of his jurisdiction. And if it was not within the limits then he would in good faith believe that the disputed work was under his jurisdiction.

 This defense is also received by the arbitrators when making decisions, provided they act honestly.

The Indian Parliament passed The Judges protection Act,1985 with a view to provide more protection to judges in carrying out their judicial functions.

XV –Acts of States

The function of the state is the act that the ruler or emperor brings into practice in relation to the exercise of his privilege. In fact, it is an exercise of sovereignty.

 In Polak’s words, these are acts performed or adopted by kings or rulers of foreign independent states, which they perform under their political and sovereign power and acquired political power.

 According to Stephen –

The work of the state which has been done against a foreigner, has been done by the employee of the ruler, the work done on the basis of the policy of the state has been either approved by the king or the ruler before or after. If it is a traumatic act and falls under the policy of the state, then it will be called an act  of  the state.

This type of work is done under the authority obtained by an official of a state and that work is considered work of state and no action is taken against him. Actions performed by the rulers of independent states or under their political authority or acquired power are also functions of the state and all are free from such obligations.

 But the action of the state towards the citizens of the country and the protected foreign nationals is no defense. The work of the state does not apply between the sovereign and his citizens, i.e. the court can examine the legitimacy of the actions taken by the state against its people and the foreign nationals protected by the state.

Such principles also apply in the law of India as is valid in English law. If a foreigner is harmed by the actions of the state, it can be resolved only through political means, not by instituting litigation in court.

In the case of the state of Tanjore – the king of Tanjore had died childless. The East India Company incorporated the state into the Vidarbha government by a notification. The king’s widow filed suit against him in the Madras Supreme Court, arguing that she was the heir to the property. The Privy Council noted that the acquisition of Tanjore State by the Company was a function of state carried out against a foreign state. The court has no jurisdiction over the functioning of the state, as the court has neither the means nor the power to enforce decisions in such cases.

Liability in relation to alcohol  accidents– Accidents in the form of loss of life caused by counterfeit alcohol have become a common occurrence. In the context of such incidents, it was determined that the government is not responsible for the actions of those who cause such accidents by violating the rules and regulations. However, the courts have shown a tendency to hold the government accountable

 This could be done if there was any negligence on the part of its officers in approving and supervising the administration and licenses of the Madh Vidhan.

Exceptions- There are three exceptions in which the government is considered free from liability-

 Where immovable property has been unauthorized,

 Where the duty-burden has been imposed by an act, and where it is proved that the government has benefited from the misdeed committed by the state employee.

In Nagendra Rao & Company v. State of UP, the Supreme Court has drawn a line between sovereignty and state functions. It was determined that the use of political power, i.e. sovereign power, by the state or its representative does not constitute a justification for bringing suit against the state for damages or retaliation for neglect of state officials.

 But this immunity is not available when the state or its official has acted negligently in discharging his legal duties. Such activities are not the work of the state and in view of this idea, the state was held responsible for the negligent work of its servant by which he allowed the merit of suitable fertilizers to be lost which harmed the candidate.

[1] (1828) 4 Bing. 628.