Tarleen Kaur, BA.LL.B : General Defences In Law Of Torts
When the plaintiff brings an action against the defendant for a particular tort, providing the existence of all the essentials of that tort, the defendant would be liable for the same.
The defendant may, however, even in such a case, avoid his liability by taking the plea of some defence. There are two types of defences-
1) SPECIFIC DEFENCES
These defences apply in specific torts. They are peculiar to some particular wrongs.
Contributory negligence is a defence to an action for negligence.
Lawful arrest is a defence to an action for false imprisonment.
Privilege, fair comment or justifications are the defences available in an action for defamation.
2) GENERAL DEFENCES IN LAW OF TORTS
These defences apply to all types of torts. These may be taken against an action for a number of wrongs.
The general defence of ‘Consent’ may be taken, whether the action is for trespass, defamation, false imprisonment, or some other wrong. The various general defences are as follows-
- Volenti non fit injuria or the defence of ‘Consent’.
- Inevitable accident.
- Act of God.
- Private Defence.
- Statutory Authority etc.
VOLENTI NON FIT INJURIA
The literal meaning of this maxim is ‘harm suffered from one’s own free will is not an actionable injury’.
In other words, volenti non fit injuria means that no act is actionable as a tort at the suit of any person who has expressly or impliedly assented to it. In case, the plaintiff voluntarily agrees to suffer some harm, he is not allowed to complain for that and is consent serves as a good defence against him.
TYPES OF CONSENT
- Expressed Consent- Consent is expressed when it is definitely stated in words. For example: A) When a patient authorizes the doctor to perform an operation. B) Person expressly authorizes the other person to enter on the property. Then he cannot sue for trespass.
- Implied Consent- When injury is incidental or associated to the thing consented.
- Perception of the risk– Knowledge of the existence of danger.
- Comprehension of the risk– Understanding of the nature and extent of danger.
- Acceptance of the risk– This means taking risk with full knowledge of existence and understanding of its nature and extent.
CONSENT MUST BE FREE
The consent of the plaintiff must be free i.e. it must not be obtained by fraud or under compulsion or some mistaken impression. Moreover, the act done by the defendant must be the same for which the consent is given.
MERE KNOWLEDE DOES NOT IMPLY CONSENT
For volenti non fit injuria to apply, two points have to be proved;
- The plaintiff knew that the risk is there.
- He, knowing the same, agreed to suffer the harm.
If only first of these points is present, i.e., there is only the knowledge of the risk, it is no defence because the maxim is volenti non fit injuria. Merely because the plaintiff knows of the harm does not imply that he assents to suffer it.
LIMITATIONS ON THE SCOPE OF VOLENTI NON FIT INJURIA
The scope of application of the doctrine of volenti non fit injuria has been curtailed-
- In rescue cases– ‘Rescue cases’ form an exception to the application of the doctrine of volenti non fit injuria. When the plaintiff voluntarily encounters a risk to rescue somebody from an imminent danger created by the wrongful act of the defendant, he cannot be met with the defence of volenti non fit injuria.
- By unlawful act
An accident means an unexpected injury and if the same could not be foreseen and avoided, in spite of reasonable care on the part of the defendant, it is an inevitable accident.
It is a good defense if the defendant can show that he neither intended to injure the plaintiff nor could he avoid the injury by taking reasonable care.
Inevitable accidents may be divided into two classes;
- Which are the occasions by the forces of nature unconnected with the agency of man.
- Those which have their origin either in whole or in part in agency of man, whether in acts of commission or omission.
The term Act of God is applicable to the former class. In this sense, inevitable accidents will seem to include Act of God but it would be better to separate them as tort implies an act or omission on the part of the defendant which is an essential condition for liability.
An inevitable accident, the liability is denied on the ground that though the accident is due to act or omission on the part of the defendant, yet the accident is such which could not have been avoided with due care.
ACT OF GOD
Act of God is another valid defence. It is a general defence.
It is also known as vis major or damnum fatal. The rule of Strict Liability also recognizes this to be a valid defence for the purpose of liability under that rule. Act of God is a kind of inevitable accident with the difference that in case of Act of God, the resulting loss arises out of the working of natural forces like exceptionally heavy rainfall, storms, tempests, tides and volcanic eruptions.
ESSENTIALS OF ACT OF GOD
- The act must be result on account of working of natural forces.
- The occurrence must be extraordinary and not one which could be anticipated and reasonably guarded against.
In private defence, law recognizes the difficulty of seeking aid from administration under certain circumstances. Therefore, the law permits every person to take necessary steps for defence of his own person, property and of other person. This is because it is not feasible for the law authority to be present everywhere.
When private defence is to be exercised- Whenever there is “REASONABLE APPREHENSION” of immediate action.
What is reasonable force- It will depend on the circumstances of each case.
This exception/defence is based on the maxim ‘salus populi suprema lex’ which means welfare of the society/welfare of the people is the supreme law.
An act of causing damage under necessity to prevent the great evil is not actionable even though the harm is done intentionally. Throwing goods overboard a ship to lighten it for saving the ship or persons on board the ship, or pulling down a house to stop further spread of fire are its common examples.
GROUNDS OF DEFENCE
- Charity as explained in case of medical assistance to unconscious person etc.
- Necessity of interference that means there must be compelling reasons to interfere.
- Even when circumstances justify interferences with other person’s property or person himself, it is necessary that the process of interference should not be unreasonable.
If however, the interference is not reasonably necessary, the defendant will be liable.
Nothing can be complained of a wrong which is authorized by an act of Legislature. When a person suffers injury because of an act authorized by the Legislature, he cannot have any remedy except as provided by the statute itself.
The damage resulting from an act, which the Legislature authorizes or directs to be done, is not actionable even though it would otherwise be a tort.
When an act is done, under the authority of an act, it is a complete defence and the injured party has no remedy except claiming such compensation as may have been provided by the statute.
Immunity under statutory authority is not only for that harm which is obvious but also for that harm which is incidental to the exercise of such authority. No action can lie either for interference with the land or for incidental harm, except for payment of such compensation which the act itself may have provided.
The defence will apply only if the following conditions are satisfied-
- It should not be exercised maliciously.
- There should be no negligence in exercise on the part of the authority.
- All the formalities prescribed by the statute have been duly observed.
ABSOLUTE AND CONDITIONAL AUTHORITY
The statute may give absolute or conditional authority for the doing of an act. In the former case, even though nuisance or some other harm necessarily results, there is no liability for the same. When the authority given by the Statute is conditional, it means the act authorized can be done provided the same is possible without causing nuisance or some other harm.
CONCLUSION : General Defences In Law Of Torts
General defences, therefore play an important role in avoiding one’s liability in torts.
Many general defences have been explained above which include volenti non-fit injuria, plaintiff the wrongdoer, inevitable accident, the act of God, private defence, mistake, necessity, statutory authority, the act of a stranger, trifles etc.
In order to plead a defense, it is important to understand it first and then apply the suitable defenses accordingly.
General Defences In Law Of Torts