General Defences in Law of Torts

Authored By: Shreyansh Rathi, Rajiv Gandhi National University of Law, Patiala

Introduction

Every Suit in the Court of Law involves two parties, one who has filed a suit against another and the other who is defending himself against such suit. In Law of Torts, such parties are called Plaintiff and Defendants. After the suit is filed by the plaintiff alleging that defendant has committed a tort, it is for the plaintiff to prove that his legal rights have been violated by the wrongful actions of the defendant and once all essentials are met and his guilt is proved, the only way the defendant can save himself and get absolved of liability is through the General Defences that are available in Law of Torts which have evolved over time.

What are General Defences?

General Defences are basically set of those defences which have evolved over time and accepted by the courts from time to time which can be taken as excuses in order to escape the liability in torts as long as the defendant’s action qualify the terms and conditions that are attached with respective defences[1]. There are some defences which are particularly associated with certain offences, like in case of defamation, defence of truth, privilege and fair comment are available, while there are other defences can be used in all or many of the torts like Consent and Third Party’s Fault.

Some of the major General Defences in Law of Torts are as follows:

1. Volenti Non Fit injuria i.e. Consent
2. Plaintiff is the Wrongdoer
3. Inevitable Accident
4. Act of God
5. Private Defence
6. Necessity
7. Statutory Authority

Volenti Non Fit Injuria (Consent)

The Latin maxim Volenti Non Fit Injuria means a person who is willing to suffer and give consent for suffering harm and injury caused by actions of defendant cannot complaint against such injury to his legal rights. In case where the plaintiff, with his own consent suffer the harm, he cannot make the defendant liable for such injury and the defendant can in turn use the defence of Volenti Non Fit Injuria to be absolved of any liability which may arise. The logical reasoning behind this defence of defendant is that a person cannot enforce such rights which he himself has wilfully and with his consent waived. Such kind of wilful consent may be in express or implied terms.

In the case of Hall v. Brooklands Auto Racing Club[2], there was a car racing going on and the plaintiff was a spectator of that race going on the track belonging to defendant. Two of the cars collided leading to one being skidded towards the spectators as a result of which the plaintiff was injured. In the action brought by him, the court held that there was plaintiffs wilful consent and he knowingly took the risk of watching the event in which such injury can be foreseen and the defendant was not liable.

However the consent must be free and not obtained by fraud or compulsion. In R. v. Williams[3], the music teacher raped a 16 year old girl under the misrepresentation by falsely pretending that it would improve her voice. The consent wasn’t free in such case and the teacher was held liable. In addition, mere knowledge does not imply consent. In Smith v. Baker, the plaintiff being an employee for working on drill for cutting stones was busy in work while some stones were being conveyed from one end to the other passing over his head and a stone fell on him causing injuries. Although he had knowledge of stones being carried, the court held that mere knowledge didn’t amount to consent and defendant were held liable.

Plaintiff being the Wrongdoer

The Latin Maxim ‘Ex Turpi Causa Non Oritur Actio’ means ‘from an immoral cause, no action arises’.  The defendant is excused from his liability in torts when the act of the plaintiff himself is wrong or illegal. In these cases, the plaintiff cannot claim legal remedy from the court as he himself was wrong in first place and his own actions led to the legal injury suffered by him.

 In the case of Pitts v. Hunt[4], a rider aged 18 years encouraged his 16 year old friend for driving fast under drunken state. The vehicle met an accident and the younger boy died and older suffered injuries and brought action against relatives of deceased for compensation for injuries. The court denied such plea of compensation as the plaintiff in this case was himself the wrongdoer and the defendant can use this defence to get away from the liability.

Inevitable Accident

An Accident refers to an injury which is unexpected and if such an accident is of such a nature that it could not have been avoided despite all precautionary measures and carefulness exercisable by the defendant, then it is known as Inevitable Accident which serves as a defence for the defendant in order to absolve himself from any liability. The defence of Inevitable Accident serves as a good and strong defence as the defendant is able to show that the legal injury could not have been avoided in spite of taking all reasonable precautions and care and not having any form of malicious intention to harm the other party.

In the case of Stanley v. Powell[5], both of them went for pheasant shooting during which the defendant fired a bullet for shooting down a pheasant. However the bullet got reflected the oak tree and hit the plaintiff resulting into serious injuries. On the action brought by the plaintiff against the defendant, it was held by the court that the incident was an inevitable accident and the defendant can be excused from any form of liability.

In the case of Sridhar Tiwari v. U.P. State Road Transport Corporation[6], as the bus belonging to U.P.S.R.T.C. reached near a village, suddenly a cyclist appeared in front of the bus and the day was such a rainy day that even after his application of brakes, the bus did not stop and in turn, the rear portion of the bus collided with another bus coming from the other side. It could be inferred that there was no fault on part of either bus drivers and they did their best for stopping any accident. On the suit brought by the plaintiff, it was held that it was a case of inevitable accident and the defendant U.P.S.R.T.C. could not be held liable.

Act of God/ Vis Major

Act of God also serves as a good defence in Tort law. The defence of Act of God remains valid even against the rule of Strict Liability which emerged from the case of Rylands v. Fletcher[7]. The Defence of Act of god finds its usage in those cases in which an event occurs over which the defendant has no control and the resultant damage is due to the natural forces. In simple words it is defined as circumstances for which no human foresight could provide against and a reasonably prudent person could not recognise the possibility of its happening. The damages resultant are vitiated by natural forces and does not make the defendant liable for such injuries.

There are two essential of Act of God:

1. The forces of nature should be at work:

In Ramalinga Nadar v.  Narayan Reddiar[8], an unruly mob forcefully robbed all that was on plaintiff’s lorry. On an action brought by plaintiff, the court observed that the defence of Act of God could not be taken and the plaintiff was liable to get compensated.

However, In Nichols v. Marsland[9], the defendant had created artificial lake by collecting water from natural stream but due to extraordinarily heavy rainfall, the embankments got destroyed and the water washed away all bridges of plaintiff. It was recognised by the court that it being an extraordinary natural event, the defendant could not be held liable.  

2. The occurrence must be extraordinary and unanticipated and could not be reasonably guided against:

In Kallu Lal v. Hemchand[10], due to a normal rainfall, the building’s wall collapsed resulting in the death of children of the plaintiff. The court observed that a rainfall of 2.66 inches is normal and not extraordinary and thus the essential of the defence of Act of God are not met and the defendant would be held liable

Private Defence

The law gives every individual the right of protecting his life and property and it extends to all other person’s life and property as well. The Law of Torts recognises this right and any act on the part individual in exercise of this right is held to be not giving rise to any form of tortuous liability. The following are the two essential for this defence:

1. There needs to be a reasonable and imminent threat to life or property.

2. The force is used only with the purpose of protection and not for revenge.

3. Force used should be in proportion to the threat.

In the case of Bird v. Holbrook[11], the defendant had fixed spring guns around his garden without any form of notice and thus the plaintiff, being unaware suffered injuries and brought action. The court held that such fixation of spring guns without notice didn’t qualified as private defence lacking essential and the plaintiff is entitled to  compensation.

In Ramanuja Mudali v. M. Gangan[12], the defendant landowner had laid wires on land. When the plaintiff crossed his land to go to his land, he received a shock leading to serious injuries as there was no notice of such arrangements. Such act on the part of defendant does not qualify as Private Defence making him liable.

Necessity

The General Defence of Necessity provide the defendant with the privilege to give rise to legal injury to the plaintiff in in order to avoid greater harm. As per this defence, if an act is intentionally done resulting in legal injury to another person in order to prevent greater harm, the defendant would not be held liable.

In case of Leigh v. Gladstone[13], the court observed that forcibly feeding a person who is on hunger strike in prison amounts to necessity and the defendant cannot be made liable for battery.

In the case of Cope v. Sharpe[14], in order to stop the fire from spreading in adjoining land, the defendant entered the premises of plaintiff. On a suit brought by plaintiff alleging trespass, the court observed that the defendant to be having no liability for the same and defence of Necessity served as a valid defence.

Statutory Authority:

An act which is authorised by the act or statutes passed by concerned authorities does not become actionable even though otherwise it would amount to tort. It serves as a total defence from liability of tort and the aggrieved plaintiff is not left with any remedy other than any compensation that may be provided under concerned statute.

In the case of Vaughan v. Taff Valde Rail Co.[15], the sparks from the railway engine of defendant’s company authorised, set fire the woods of plaintiff in the adjoining land. Since the authority was provided under statute, the defendant was held not to be having any liability tort as the defence of statutory authority was invoked.

In Smith v. London and South Western Railway Co[16]., railway company’s servants left trimming of hedges of railway track in negligence and the sparks thus generated were carried by wing to neighbouring cottage resulting in fire. Here, it was held that the defence of statutory authority does not arise when there was negligence which was not covered under statute and thus defendants were liable for the damages.

Conclusion

Similar to the remedies available to aggrieved parties, the importance of Defences for alleged parties for an important part of any law. Many a times, the defendant are innocent and victim of circumstances such that liability arises for their action after all essentials are met in Torts law. The General Defences in Law of Torts for an important part in this law which help the defendant to get absolved of any form of liability that may arise. For their proper application in individual cases, a proper understanding of such defences is important.

---

[1] Law of Torts by Dr. RK Bangia.

[2] (1933) 1 KB 205

[3] (1923) 1 KB 340

[4] (1990) 3 All ER 344

[5] 7 L.T.R. 25

[6] 2 (1986) ACC 393

[7] (1868) UKHL 1

[8] AIR 1971 Ker 197

[9] (1876) 2 ExD 1

[10] AIR 1958 MP 48

[11] (1825)130 ER 911

[12] AIR 1984 Mad 103

[13] (1909) 26 TLR 139

[14] (1891) 1 KB 496

[15] (1858) 157 ER 667

[16]  (1869-70) LR 5 CP 98