Monday, May 27, 2024





What are the various general defences available under the tort law?

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.There are various defences for various torts.

For example, defamation is defended by the defence of ‘justification of truth’. However, there are some general defences that apply to every tort. When the plaintiff takes legal action against a defendant, the defendant can take any of the following defences and avoid being held liable.

  1. Volenti non fit injuria
  2. Plaintiff the wrongdoer
  3. Inevitable accident
  4. Act of God
  5. Private defence
  6. Mistake
  7. Necessity
  8. Statutory authority

Volenti non fit injuria.
If, on the other hand, the plaintiff voluntarily inflicts some injury, there is no legal remedy available to him under the tort law and he cannot complain about the injury. The defence of consent to suffer harm is based on the principle that no one may enforce a right which the plaintiff voluntarily forfeited or waived. The consent to suffer harm may be expressed or implied.

For example, when you yourself call somebody to your house you cannot sue your guests for trespass.
The essential ingredients of this defence are:
a) The plaintiff must have voluntarily and knowingly assumed the risk of harm or injury.
b) The plaintiff must have been aware of the nature and extent of the risk
c) The plaintiff must have consented to the risk.

Hall v. Brooklands Auto Racing Club
The plaintiff attended a car racing event held on the defendant’s track. During the race, two cars collided and one was thrown into the spectator area, injuring the plaintiff. The court found that the plaintiff knowingly assumed the risk of attending the race, as the possibility of such an injury was foreseeable. As a result, the defendant was not held liable for the plaintiff’s injuries.

Padmavati v. Dugganaika,
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.

Wooldrige v. Sumner
Plaintiff was taking some pictures standing at the boundary of the arena. The defendant’s horse galloped at the plaintiff due to which he got frightened and fell into the horse’s course and was seriously injured. The defendants were not liable in this case since they had taken due care and precautions.

Thomas v. Quartermaine
The plaintiff was an employee in the defendant’s brewery. He was trying to remove a lid from a boiling tank of water. The lid was struck so the plaintiff had to apply an extra pull for removing that lid. The force generated through the extra pull threw him in another container which contained scalding liquid and he suffered some serious injuries due to the incident. The defendant was not liable as the danger was visible to him and the plaintiff voluntarily did something which caused him injuries.

Illot v. Wilkes
A trespasser got injured due to spring guns present on the defendant’s land. He knowingly undertook the risk and then suffered injuries for the same. This was not actionable and the defendant was not liable in the case.

• Plaintiff the wrongdoer
There’s a saying that says “if there is no immoral cause, there is no action.” This has derived from a legal maxim “Ex turpi causa non oritur actio”.

If the defendant denies any part in the offence, he or she may claim that he or she caused the injury or damage. He or she may also claim that the plaintiff’s conduct contributed to his or her injury or damage, so he or she should not be held solely liable for the damages.

The essential ingredients of type of general defences in tort are:
a) The plaintiff must have contributed to the harm or injury suffered.
b) The plaintiff’s contribution to the harm must be significant.
For example, Driving erratically, Tom collides with Mike’s car. Tom and Mike both sustain injuries. Tom claims that Mike was at fault because he was speeding, so he shouldn’t be held responsible for the damage.

Bird v. Holbrook
The plaintiff was awarded damages for injuries he sustained due to spring-guns set up in the defendant’s garden without any warning.

Pitts v. Hunt
A rider who was 18 years old encouraged his 16-year-old friend to drive recklessly under the influence of alcohol. The motorcycle they were on crashed, and the driver died instantly. The pillion rider suffered serious injuries and filed a suit seeking compensation from the deceased’s relatives. However, the plea was rejected as the plaintiff himself was found to be the wrongdoer in this case.

This illustrates the defence of plaintiff as the wrongdoer, which may be used to argue against a claim of compensation by a plaintiff who contributed to their own injuries through their own wrongful conduct.

• Inevitable Accident
Defence of Inevitable Accident: The defence of inevitable accident states that the injury or harm suffered was unavoidable. The defendant may claim that the injury or damage was the result of unforeseen circumstances.

The essential ingredients of this type of general defences in tort are:
a) The harm or injury suffered was not foreseeable.
b) The harm or injury suffered was due to unforeseeable circumstances.
For example, A tree branch falls on a car, causing significant damage. The car owner cannot claim damages from the owner of the tree as the falling of the branch was due to unforeseeable circumstances and was not preventable.

Stanley v. Powell
Both the defendant and the plaintiff were participating in a pheasant shooting event. While the defendant was aiming at a pheasant, the bullet ricocheted off an oak tree and hit the plaintiff causing serious injuries. The incident was deemed an inevitable accident, and the defendant was held not liable.

Assam State Coop., etc. Federation Ltd. v. Smt. Anubha Sinha
The plaintiff had leased out their premises to the defendant. The defendant had requested the landlord to repair the defective electric wirings of the premises, but the landlord failed to do so. Due to a short circuit, a fire broke out in the house, causing damages. The tenant was not negligent in any way. When the landlord claimed compensation for the damage, it was held that it was an inevitable accident, and the tenant was not liable.

Raj Rani v. Oriental Fire & General Ins. Co. Ltd
It involved a truck whose front right spring and other parts broke unexpectedly while being driven, causing the driver to collide with a tractor coming from the opposite direction. Both the driver and the owner of the truck were unable to prove that they had taken necessary precautions while driving. The court found that this case was one of negligence and not an inevitable accident, and therefore held the defendant liable.

• Act of God
The defence of an act of God means that the harm or injury suffered was due to natural events beyond human control. The defendant can argue that the harm or injury was caused by an act of God, and therefore, they should not be held liable for it.

The essential ingredients of these general defences in tort are:
a) The harm or injury suffered was due to natural events beyond human control.
b) The defendant could not have prevented the harm or injury.
For example, A sudden flood damages a property, and the property owner cannot claim damages from the government as the flood was caused by a natural event beyond human control.

Kallu Lal v. Hemchand
The wall of a building collapsed due to rainfall of about 2.66 inches, which was considered normal. The collapse resulted in the death of the respondent’s children. The court held that the defence of Act of God cannot be applied by the appellants in this case, as the amount of rainfall was not sufficient to invoke such a defence. Thus, the appellants were held liable for the incident.

• Private defence
Under the defence of private defence, the defendant can claim that they acted in self-defense or to protect another person or property from harm or injury.

The essential ingredients of this defence are:
a) The defendant must have acted in self-defence or defence of another person or property.
b) The defendant’s actions must have been necessary to prevent harm or injury.
For example, Jack sees a person assaulting his friend, and he intervenes to protect his friend. Jack cannot be held liable for any harm or injury caused to the assailant as he acted in defence of his friend.

Bird v. Holbrook
the plaintiff, a trespasser, who was injured by spring guns installed by the defendant in his garden without any warning. The court ruled that the defendant was not justified in his actions and that the plaintiff was entitled to compensation for their injuries.

Ramanuja Mudali v. M. Gangan
The defendant had laid a network of live wires on their land, which caused serious injuries to the plaintiff who crossed the land at night without notice. The court held the defendant liable for their actions, as the use of live wires was not justified.

Collins v. Renison
The plaintiff was thrown off a ladder by the defendant when he attempted to nail a board on the defendant’s garden wall. The defendant argued that he had only gently pushed the plaintiff, but the court ruled that the force used was not justifiable as a defence.

• Mistake
The defence of mistake means that the defendant made an honest mistake and did not intend to cause harm or injury. The defendant can argue that they did not have the required knowledge or information to act differently.

The essential ingredients of this defence are:
a) The defendant made an honest mistake.
b) The mistake was made in good faith.
c) The mistake was not intentional.
For example, John, a doctor, prescribes the wrong medicine to a patient due to a mix-up in the patient’s medical history. The patient suffers an adverse reaction to the medicine. However, John cannot be held liable for the harm caused as he made an honest mistake.

Morrison v. Ritchie & Co
The defendant mistakenly published a statement that the plaintiff had given birth to twins in good faith when in reality the plaintiff had only been married for two months. The defendant was held liable for the tort of defamation, and the fact that they acted in good faith was considered irrelevant in this case.

Consolidated Company v. Curtis
An auctioneer mistakenly believed that the goods he auctioned off belonged to his customer. However, the true owner filed a suit against the auctioneer for the tort of conversion. The court held the auctioneer liable and stated that the defence of mistake of fact is not applicable in this case.

The defence of necessity means that the defendant’s actions were necessary to prevent a greater harm or injury. The defendant can argue that their actions were necessary under the circumstances to prevent harm or injury to themselves or others.

The essential ingredients of this defence are:
a) The defendant’s actions were necessary to prevent greater harm or injury.
b) The defendant’s actions were not disproportionate to the harm or injury prevented.

For example, A firefighter breaks into a house to put out a fire, causing damage to the property. However, the firefighter cannot be held liable for the damage caused as their actions were necessary to prevent harm to human life.

Carter v. Thomas
The defendant in the case of entered the plaintiff’s land in order to extinguish a fire in good faith, while the fire extinguishing workers were already on the premises. However, despite his good intentions, the defendant was found guilty of the offence of trespass.

Kirk v. Gregory,
A’s sister-in-law hid some jewellery in the room where A was lying dead, believing it to be a safer place. The jewellery was subsequently stolen, and a case was filed against A’s sister-in-law for trespass to the jewellery. The court found her liable for trespass as her actions were deemed unreasonable.

• Statutory authority
The defence of statutory authority means that the defendant was acting under the authority of a statute. The defendant can argue that their actions were permitted by law, and therefore, they should not be held liable for any harm or injury caused.
The essential ingredients of this defence are:
a) The defendant was acting under the authority of a statute.
b) The defendant’s actions were permitted by law.

For example, A police officer uses force to subdue a suspect while making an arrest. The police officer cannot be held liable for the harm or injury caused as their actions were authorized by law.

Hammer Smith Rail Co. v. Brand
The plaintiff’s property value decreased due to the loud noise and vibrations produced by the trains on the railway line constructed under a statutory provision. The court ruled that the defendant could not be held liable for damages as the construction was authorized by the statute, serving as a complete defence.

Smith v. London and South Western Railway Co,
The defendant’s servants left the trimmings of hedges near the railway line, which caught fire due to sparks from the engine and caused damage to the plaintiff’s cottage. The court held the railway authority liable for negligence and ordered them to pay compensation to the plaintiff for the loss suffered.

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