Radha Nandi, a first-year law student from Sarsuna Law College has written this Article “General Defences the under Law of Torts”
General defences under the Law of Torts are a set of defences or ‘excuses’ that you can undertake to escape liability in tort. In the realm of civil law, the law of torts governs the resolution of disputes arising from wrongful acts or omissions that cause harm or injury to another individual or their property. When someone is accused of committing a tort, they may assert various defences to escape or reduce their liability for the alleged wrongdoing. These defences, known as general defences, providing legal justifications that can shield defendants from being held fully accountable for their actions.
General Defences under the law of torts serve as crucial safeguards, ensuring that liability is imposed only when it is fair and just. These defences are applicable in a wide range of tort cases and take into consideration different factors that could mitigate the defendant’s liability. It is essential to understand these defences as they can significantly impact the outcome of a tort claim.
Meaning of General Defences
The term “General Defences” in the context of the law of torts refers to legal arguments and justifications that defendants can use to avoid liability for committing a tort or to mitigate the damages they may be required to pay to the injured party. These defences are available in various tort cases and are designed to protect defendants from being held fully responsible for their actions under certain circumstances.
When a person or entity is accused of committing a tort, the plaintiff bears the burden of proving that the defendant’s actions or omissions caused harm to injury, and that the defendant is legally liable for the resulting damages. However, the defendant can raise specific defences to challenge the plaintiff’s claims or to limit their own liability.
Purpose of general defences in tort
The purpose of general defences is to ensure that the legal system considers factors that might excuse or mitigate the defendant’s liability, making the overall resolution of the dispute fair and just. These defences take into account various circumstances that could affect the defendant’s culpability, such as the plaintiff’s own actions, consent to the risk, emergency situations, or uncontrollable events.
Application of general defences in tort
The application of general defences under the law of torts is crucial in determining the liability of defendants accused of committing a tort. These defences can significantly impact the outcome of a tort case, as they provide legal justification for defendants to avoid liability or reduce the damages they may be required to pay to the injured party. The application of these defences involves considering specific circumstances and legal principles to assess whether the defendant’s actions can be excused or justified.
General Defences in Law of Tort
Volenti non fit injuria
“Volenti non fit injuria” is a Latin term meaning “to a willing person, injury is not done”. In the law of torts, volenti non fit injuria is a legal principle or defence that refers to the voluntary assumption of risk by a plaintiff, which can absolve the defendant from liability for any harm or injury caused to the plaintiff.
In simpler terms, if a person willingly and knowingly exposes themselves to a certain risk or danger, and they are subsequently injured or harmed as a result of that risk, they may not be able to claim damages or hold another party responsible for the injuries sustained. This defence is based on the idea that if someone voluntarily accepts the potential harm or danger associated with a particular activity or situation, they should not be allowed to seek compensation for any resulting harm.
The volenti non fit injuria defence is commonly associated with cases involving hazardous sports and recreational activities, such as skydiving, bungee jumping, or motor racing. If participants in these activities are injured despite being fully aware of the risks and voluntarily participating, they may not be able to recover damages from other participants or organizers.
In Hall v. Brooklands Auto Racing Club, the plaintiff was a spectator at a motor car race being held at Brooklands 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 impliedly took the risk of such injury, the danger being inherent in the sport which any spectator could foresee, the defendant was not liable.
In Padmavati v. Dugganaika, while the driver was taking the jeep for filling petrol in the tank, two strangers took lift in the jeep. Suddenly one of the bolts fixing the right front wheel to the axle gave way toppling the jeep. The two strangers were thrown out and sustained injuries, and one of them died as a consequence of the same. It was held that neither the driver nor his master could be made liable, firstly, because it was a case of sheer accident and, secondly, the strangers had voluntarily got into the jeep and as such, the principle of volenti non fit injuria was applicable to this case.
The consent must be free
For the defence to be available. It is necessary to show that the plaintiff’s consent to the act done by the defendant was free. If the consent of the plaintiff has been obtained by fraud or under compulsion or under some mistaken impression, such consent does not serve as a good defence. Moreover, the act done by the defendant must be the same for which the consent is given.
When a person is incapable of giving his consent because of his insanity or minority, consent of such person’s parent or guardian is sufficient. Thus, a surgeon performing a surgical operation of a child with the guardian’s consent is protected even though the child protests the operation.
In Lakshmi Rajan v. Malar Hospital Ltd, the complainant, a married woman, aged 40 years, noticed development of a painful lump in her breast. The lump had no effect on her uterus, but during surgery, her uterus was removed without any justification. It was held that the opposite party, I.e., the hospital, was liable for deficiency in service. It was also held that the patient’s consent for the operation did not imply her consent to the removal of the uterus.
Consent obtained by fraud
Consent obtained by fraud is one of the general defences under the law of torts that can be used by defendants to contest liability for their actions. This defence applies when the defendant can demonstrate that the plaintiff’s consent to a particular activity or situation was obtained through deceit, misrepresentation, or fraudulent means. If the plaintiff’s consent is shown to be invalid due to fraud, it can negate the defendant’s liability for any harm or injury caused.
Consent obtained by fraud is not real and that does not serve as a good defence. In the Irish case of Hegarty v. Shine, it has, however, been held that mere concealment of facts may not be such a fraud as to vitiate consent. There, the plaintiff’s paramour, had infected her with venereal disease and she, therefore, brought an action for assault. The action failed partly on the ground that mere non-disclosure of the disease by the plaintiff was not such as fraud as to vitiate consent, and partly on the ground ex turpi causa non oritur actio. (It means that from an immoral cause, no action arises).
Consent obtained under compulsion
In this context, “compulsion” refers to situations where a person is forced or coerced into giving consent against their will, and it can affect the validity of their consent in certain situations.
When consent is obtained under compulsion, it may not be considered genuine or voluntary, and as a result, it may not be a valid defence against a claim of tortious conduct. If a defendant can demonstrate that the plaintiff’s consent was coerced or obtained through force or threats, it may negate the defence of consent and potentially lead to liability for the defendant’s actions.
For example, if someone is threatened with physical harm or blackmail and forced to sign a contract or engage in an activity against their will, their consent is under compulsion. In such a case, the law may not uphold the validity of the consent, and the defendant may be held liable for any resulting harm or injury by their actions.
Mere knowledge does not imply assent
This principle essentially means that just because a person has knowledge of a particular fact or situation, it does not automatically indicate that they have given their consent or agreed to it. In the context of the law of torts, this principle is especially relevant when considering defences like consent and assumption of risk. While a person may be aware of certain risks associated with an activity or situation, it does not necessarily mean that they have consented to assume those risk willingly. In other words, knowledge alone does not equal consent.
In Smith v. Baker, the plaintiff was a workman employed by the defendants on working a drill for the purpose of cutting rock. By the help of a crane, stones were being conveyed from one side to the other, and each time when the stones were being conveyed, the crane passed from over the plaintiff’s head. While he was busy in his work, a stone fell from the crane and injured him. The employers were negligent in not warning him at that moment of a recurring danger, although the plaintiff had been generally aware of the risk. It was held by the House of Lords that as there was mere knowledge of risk without the assumption of it, the maxim volenti non fit injuria did not apply, and the defendants were liable.
Negligence of the defendant
Negligence of the defendant is a fundamental concept in the law of tort. It refers to the failure of an individual or entity to exercise reasonable care in their actions, resulting in harm or injury to another person or their property. Negligence is one of the most common causes of action in tort law and is central to many civil lawsuits seeking compensation for damages. It is important to note that negligence is an objective standard, meaning that the defendant’s conduct is measured against what a reasonable person would have done in similar circumstances. It is not based on the defendant’s subjective intentions or state of mind. Negligence is a pervasive concept in tort law, and it can arise in various scenarios, including car accidents, slip and fall incidents, medical malpractice, and product liability cases, among others.
In the case of Slater v. Clay Cross Co. Ltd., the plaintiff was stuck and injured by a train driver by the defendant’s servant while she was walking along a narrow tunnel on a railway track that was owned and occupied by the defendants. The company knew that the tunnel was used by the members of the public and had instructed its drivers to whistle and slow down when entering the tunnel. The accident had occurred because of the driver’s negligence in not observing those instructions. Held, that the defendants were liable.
Limitations on the doctrine’s scope
The scope of application of the doctrine of volenti non fit injuria has been curtailed in the following cases:
- In rescue cases, and
- By the Unfair Contract Terms Act, 1977 (England).
In spite of the fact that the plaintiff has consented to suffer the harm, he may still be entitled to his action against the defendant in these exceptional situations.
- 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 the case of Haynes v. Harwood, the defendant’s servant left a two-horse van unattended in a street. A boy threw a stone on the horse, and they bolted, causing grave danger to woman and children on the road. A police constable, who was on duty inside a nearby police station, on seeing the same, managed to stop the horses, but in doing so, he himself suffered serious personal injuries. It being a ‘rescue case’, the defence of ‘volenti non fit injuria’ was not accepted and the defendants were held liable.
- Unfair Contract Terms Act, 1977 (England)
The Unfair Contract Terms Act, 1977, limits the right of a person to exclude his liability resulting from his negligence in a contract.
Volenti non fit injuria and contributory negligence
- Volenti non fit injuria is a complete defence. Since the passing of the Law Reform Act, 1945, the defendant’s liability in the case of contributory negligence, is based on the proportion of his fault in the matter. In such a case, therefore, the damages which the plaintiff can claim will be reduced to the extent the claimant himself was to blame for the loss.
- In the defence of contributory negligence, both the plaintiff and the defendant are negligent. In volenti non fit injuria, the plaintiff may be volens but at the same time exercising due care for his own safety. Moreover, defendant’s negligence may rule out the application of the defence of volenti non fit injuria.
- In case of volenti non fit injuria, the plaintiff is always aware of the nature and extent of the danger which he encounters. There may, however, be contributory negligence on the part of the plaintiff in respect of a danger which he did not, in fact, know although he ought to have known about it.
Plaintiff the wrongdoer
One of the potential scenarios where the plaintiff may be considered the wrongdoer is when the defence of “Contributory Negligence” is applicable. Contributory negligence is a defence that can be raised by the defendant when the plaintiff’s own negligence contributed to the harm or injury they suffered.
If the defendant can prove that the plaintiff’s actions or failure to exercise reasonable care played a role in causing the harm, the court may find the plaintiff partially at fault for the incident. In jurisdictions that follow the contributory negligence doctrine, if the plaintiff is found to have contributed to their injuries in any way, they may be barred fromrecovering any damages from the defendant, even if the defendant’s actions were also negligent.
if a pedestrian is hit by a car while crossing the road outside a designated crosswalk, and it is determined that the pedestrian’s failure to use the crosswalk contributed to the accident, the defendant (driver) may raise the defence of contributory negligence. If the court agrees that the plaintiff’s actions played a role in causing the accident, the plaintiff may be considered a wrongdoer to some extent, and their ability to recover damages from the defendant could be affected.
It’s important to note that the application of contributory negligence as a defence and its impact on the plaintiff’s claim can vary depending on the jurisdiction. Many jurisdictions have moved away from the strict application of contributory negligence and adopted comparative negligence principles, which allow the plaintiff to recover damages, but the amount awarded is reduced based on their percentage of fault.
In comparative negligence systems, the plaintiff’s degree of fault is compared to that of the defendant, and the damages are apportioned accordingly. If the plaintiff’s fault is deemed to be 50%, for instance, they would be entitled to only 50% of the total damages awarded.
This concept is used to absolve a defendant from liability for an accident or injury that occurred despite the exercise of reasonable care. The defence of inevitable accident is based on the idea that, despite taking all reasonable precautions, some events are entirely beyond the control of the defendant and could not have been avoided.
It is important to note that the defence of inevitable accident is quite challenging to establish successfully. Courts generally impose a high standard of proof on defendants seeking to use this defence, as the burden lies on the defendant to show that the accident was genuinely beyond their control, and they were not at fault in any way.
The defence of inevitable accident is commonly invoked in cases involving natural disasters, sudden and unexpected mechanical failures, or events that were unforeseeable and unpreventable, even with reasonable care and diligence. For example, a defendant may use this defence in a car accident case if a sudden and severe storm causes them to lose control of the vehicle and collide with the plaintiff’s car.
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.
In Brown v. Kendall, the plaintiff’s and the defendant’s dogs were fighting. While defendant was trying to separate them, he accidentally hit the plaintiff in his eye, who was standing nearby. The injury to the plaintiff was held to be the result of pure accident, for which no action could lie.
Act of God
“Act of God” is also known as “force majeure” or “vis major” in some jurisdictions. This defence comes into play when the harm or injury suffered by the plaintiff is caused by an unforeseeable and unavoidable event or circumstance that is entirely beyond human control. Examples of situations where the defence of Act of God might apply include:
– Natural disasters such as earthquakes, floods, hurricanes, or tornadoes.
– Extreme weather events, such as lightning strikes or severe storms causing damage.
– Wild animal attacks or stampedes.
– Other natural phenomena that are entirely beyond human control, like volcanic eruptions or sinkholes.
It’s worth mentioning that the Act of God defence may not be available if the defendant’s negligence or actions contributed to the occurrence of the event or the resulting harm. Additionally, some contracts and insurance policies may specifically address the application of the Act of God defence, either limiting or excluding its use for certain situations.
Overall, the Act of God defence serves as an important protection for defendants in cases where extraordinary natural events or forces beyond their control lead to harm or injury, and it is an essential aspect of the law of torts.
Working of natural forces
In Ramalinga Nadar v. Narayana Reddiar, it was held that the criminal activities of the unruly mob, which robbed the goods transported in the defendant’s lorry cannot be an Act of God and the defendant is liable for the loss of those goods as a common carrier. It was observed: “Accidents may happen by reason of the play of natural forces or by intervention of human agency or by both. It may be that in either of these cases, accidents may be inevitable. But it is 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 said to be Acts of God”
Occurrence must be extraordinary
In Nichols v. Marsland, the rainfall was extraordinary heavy, and could not be anticipated. If the rainfall is a normal one which could be expected in a certain area, the defence of Act of God cannot be pleaded.
In Kallulal v. Hemchand, the wall of a building collapsed on a day when there was a rainfall of 2.66 inches. That resulted in the death of the respondent’s two children. The Madhya Pradesh High Court held that the defendant could not take the defence of Act of God in this case, as that much of rainfall during the rainy season was not something extraordinary but only such as ought to have been anticipated and guarded against. The appellant was, therefore, held liable.
Private defence, also known as self-defence or defence of others, is a general defence under the law of torts. This defence allows an individual to protect themselves, others, or their property from imminent harm or threat by using reasonable force. Private defence is based on the principle that individuals have a right to defend themselves and others against potential harm or danger.
Additionally, the use of force in self-defence must be reasonable and necessary to protect oneself or others from harm. The degree of force that is considered reasonable can depend on the circumstances, such as the nature of the threat and the available alternatives to the use of force.
In Bird v. Holbrook, the defendant had put up spring guns in his garden without fixing any notice about the same and a trespasser was seriously injured by its automatic discharge. It was held that the plaintiff was entitled to recover compensation as the force used here was greater than the occasion demanded.
“Mistake” is a general defence that can be used by defendants to contest liability for their actions. This defence is based on the idea that the defendant’s wrongful conduct was the result of an honest and reasonable mistake, which led them to believe that their actions were lawful or non-negligent.
To successfully invoke the defence of mistake, several key elements must typically be established:
- Honest and Genuine Mistake: The defendant must show that they genuinely and honestly believed that their actions were lawful or that they were not acting negligently. The mistake must be bona fide and not a mere pretext to escape liability.
- Reasonable Person Standard: The mistake must be one that a reasonable person in the defendant’s position would have made under similar circumstances. The court will assess whether the mistake was reasonable given the information available to the defendant at the time.
- No Contributory Negligence: The defence of mistake may not apply if the defendant’s negligence or carelessness contributed to the occurrence of the harmful event.
It’s important to note that the defence of mistake is not applicable if the defendant’s mistake was due to their own lack of due diligence or care. For example, if a defendant misreads a road sign and causes an accident, but a reasonable person would have noticed the correct meaning of the sign, the defence of mistake may not be available.
The defence of mistake can be relevant in various types of tort cases, such as:
- Mistake of Fact: The defendant may have been under a mistaken belief regarding certain facts that led to their alleged wrongful conduct. For instance, if a person mistakenly believes they have permission to enter someone’s property and causes damage while there, they may raise the defence of mistake.
- Mistake of Law: In some jurisdictions, the defence of mistake of law may be allowed under certain limited circumstances. This defence arises when the defendant reasonably and honestly believes that their actions are lawful, even if the belief is based on an incorrect interpretation of the law.
- Mistake in Medical Treatment: In medical malpractice cases, a healthcare professional may argue that their actions were based on a reasonable and honest medical judgment, even if the treatment outcome was not as intended.
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” allows a defendant to justify their actions, which would otherwise be considered tortious, as necessary to prevent greater harm or injury. This defence is based on the idea that in certain emergency situations, the law may recognize that individuals or entities need to act in a way that would otherwise be considered wrongful to prevent a more significant harm from occurring.
To successfully invoke the defence of necessity, several key elements must generally be met:
- Imminent Peril: The defendant must have reasonably believed that there was an immediate and serious threat of harm or danger, and their actions were necessary to avoid the threat.
- No Reasonable Alternative: The defendant must demonstrate that there was no reasonable and legal alternative available to them at the time to prevent the harm other than the course of action they took.
- Proportional Response: The defendant’s actions must be proportionate to the harm they are trying to prevent. The force used or the harm caused by the defendant’s actions should not be excessive in comparison to the harm being avoided.
- No Duty to Cause Harm: The defendant’s actions must not be intended to cause harm or damage, but rather to avert a greater harm.
The defence of necessity can apply in various situations, including:
- Emergency Medical Treatment: A healthcare professional may perform a medical procedure on a patient without their consent in a life-threatening situation where immediate treatment is necessary to save the patient’s life.
- Trespass to Property: If a person enters someone’s property without permission to avoid a life-threatening situation, they may raise the defence of necessity to justify their actions.
- Damage to Property: In situations where damage to property is necessary to prevent a more significant harm, such as breaking a door to rescue someone trapped inside a burning building, the defence of necessity may be applicable.
In Cope v. Sharpe, the defendant entered the plaintiff’s land to prevent the spread of fire to the adjoining land over which the defendant’s master had the shooting right. Since the defendant’s act was considered to be reasonably necessary to save the game from real and imminent danger, it was held that the defendant was not liable for trespass.
“Statutory authority” allows a defendant to avoid liability for their actions if they were acting in accordance with a valid and lawful statute or law. When the defendant’s actions are authorized or mandated by a specific statute, they may be shielded from liability even if those actions would otherwise be considered tortious.
To successfully invoke the defence of statutory authority, several key elements must generally be met:
- Compliance with Statute: The defendant must demonstrate that their actions were in strict compliance with a specific statute or law. This means that the statute must expressly authorize or require the defendant’s conduct.
- Authorized Scope: The defendant’s actions must fall within the authorized scope of the statute. If the statute only permits certain actions under specific circumstances, the defendant must show that they acted within those boundaries.
- No Abuse of Authority: The defence of statutory authority may not be applicable if the defendant’s actions exceeded the scope of the statute or if they abused their authority under the statute.
- No Negligence: The defence of statutory authority does not excuse the defendant from liability if they acted negligently, even if their actions were authorized by a statute. The defendant must still exercise reasonable care while carrying out their authorized duties.
Examples of situations where the defence of statutory authority may apply include:
- Police and Law Enforcement: Police officers or other law enforcement personnel may be immune from liability for actions taken in the course of their duties if those actions are explicitly authorized by law.
- Government Officials: Government officials acting in accordance with their statutory responsibilities may be shielded from liability if their actions are lawful and within the scope of their authority.
- Emergency Responders: Firefighters, paramedics, or other emergency responders may be protected from liability when performing their duties in emergencies, as long as their actions align with relevant statutes or protocols.
It is essential to remember that the defence of statutory authority is only applicable when the defendant can demonstrate that their actions were authorized by a specific statute or law. If the actions were not in strict compliance with the law or if the defendant acted negligently, the defence may not be available.
In Vaughan v. Taff Valde Rail Co., sparks from an engine of the respondent’s railway company, which had been authorized to run the railway, set fair to the appellant’s woods on the adjoining land. It was held that since the respondents had taken proper care to prevent the emission of sparks and they were doing nothing more than what the statute had authorized them to do, they were not liable.
Absolute and conditional authority
In case of Absolute authority, there is no liability if the nuisance or some other harm necessarily results but when the authority is conditional it means that the same is possible without nuisance or any other harm.
In Metropolitan Asylum District v. Hill, the appellants, a hospital authority, were empowered to set up a smallpox hospital. They erected such a hospital in a residential area and the same created danger of infection to the residents of the area. It was held to be a nuisance and the appellants were issued an injunction to remove the hospital. The statutory authority in this case, was construed to be conditional in so far as they were considered to be authorized to set up a hospital if that could be done without creating a nuisance.
Conclusion: General Defences under the Law of Torts
General defences play a crucial role in the law of torts, providing defendants with avenues to contest liability for their alleged wrongful actions. These defences are based on various legal principles and policies that aim to strike a balance between protecting the rights of individuals who have suffered harm and ensuring that defendants are not held responsible for circumstances beyond their control or where their conduct was reasonable and justifiable.
The key general defences discussed include consent, where the plaintiff’s voluntary and informed agreement to assume risk or engage in an activity can shield the defendant from liability. However, consent must be genuine and not obtained through fraud or compulsion. Assumption of risk is related to consent and may arise when the plaintiff knowingly exposes themselves to a dangerous situation, potentially limiting the defendant’s liability.
The defence of negligence is fundamental in tort law, requiring the plaintiff to prove that the defendant breached a duty of care owed to them, causing foreseeable harm. Contributory or comparative negligence may reduce the defendant’s liability if the plaintiff’s actions contributed to the harm.
In certain emergency situations, the defences of necessity and statutory authority provide justifications for actions that would otherwise be considered tortious. Necessity allows defendants to protect themselves or others from imminent harm by taking actions that are necessary and proportional to avoid a greater danger. Statutory authority shields defendants from liability when their actions are expressly authorized or mandated by law.
In conclusion, the general defences under the law of torts serve to balance the interests of both plaintiffs and defendants, ensuring that justice is achieved, and fairness is upheld in the resolution of tortious claims.
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- Law of Torts by Dr. RK Bangia-General Defences under the Law of Torts
- (1932) All E.R. Rep. 208: (1932) 1 K. B. 205
- (1975) 1 Kam. L.J. 93. 1975, A.C.J. 222
- III (1998) CPJ 586 (Tamil Nadu SCDRC): General Defences under the Law of Torts
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- Slater v. Clay Cross Co., (1956) 2 Q.B. 264: (1956) 2 All E.R. 625
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