CLAT Study Material

General Defences under Law of Torts

Law of Torts for CLAT and other law entrance exams

General Defences

General defences are a set of defences or “excuses” from which one can undertake to escape from liability in tort.

It is only applicable if someone’s actions have qualified a specific set of conditions which are going to be attached with these defences, when the plaintiff brings an action against the defendant for a particular tort by providing all the existing essentials of that tort, the defendant will be liable for the same. 

However, the defendant may, even in such a case avoid his liability by taking the plea of some defence. There are some specific defences that are peculiar to some particular wrongs.

For Example:

In an action for defamation, the defences of privilege, fair comment, or justification are available. There are some general defences that can be taken against the action for a number of wrongs.

The general defence of “Consent” can be taken, whether the action is for trespass, defamation, false imprisonment, or some other wrong. Defendant took the plea of some defence in order to avoid his liability.

There are Eight General Defences:

1. Volenti non fit injuria or defence of “Consent” 

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

When a person (plaintiff) consents for the infliction of some harm upon himself then he can not get any defence for the tort committed upon him.

Consent to suffer harm may be:

1. Express 

2. Implied

Express Consent

Example:

1. If you have invited someone to your house then you cannot sue him for trespass.

2. If you have agreed for a surgical operation and given your consent by admitting yourself to the hospital, you can not sue the doctor because you have given an expressed consent for it.

Implied Consent

Example:

A player in a game of cricket is deemed to agree to any hurt which may be caused likely in the normal course of the game.

Case Law

Wooldridge V. Summer

In this case, a man (plaintiff) was taking pictures of a running horse, during the course of clicking the pictures man suffered some injuries. Here the owner of the horse was not held liable to pay compensation for the injuries because the plaintiff himself consented to such harm.

For taking the defence of volenti non fit injuria:

1. Consent must be freely given to suffer harm.

2. Consent must not be obtained by fraud.

3. Consent can not be given to an illegal act.

Exceptions to the maxim ‘volenti non fit injuria’

In some cases, even if the plaintiff consented to suffer harm, the plaintiff can claim compensation from the defendant in these two cases:

1. Rescue Cases

2. By Unfair Contract Terms Act, 1977

Rescue case

Haynes v. Harwood

In this case, there was a horse cart and it was left unattended by the owner. Some children were playing near the horse cart, meanwhile one of the children threw a stone at the horse, the horse got frightened and started running around. There a police constable who was on duty manages to stop the horse but a woman, children, and the police officer were injured by the horse. Here the police officer consented to rescue the situation instead of consented to suffer the injuries. 

So, the horse cart owner was liable to pay compensation because he left the horse cart unattended.

Plaintiff the Wrongdoer

Maxim

“Ex turpi causa non oritur actio” which means ‘from an immoral cause no action arises’. If the plaintiff is unlawful on his part, he will not succeed in his action.

Example:

A Plaintiff in his garden put spring guns to protect his fields from the trespassers. But he did it without fixing any notice around the garden, due to which some of the trespassers were injured by the spring gun’s automatic discharge. Plaintiff claims compensation from trespassers but here plaintiff himself was a wrongdoer, his act of spring guns without any public notice hurt some people wrongfully. Here, the defendants (trespassers) were not held liable to claim compensation from the plaintiff, because the plaintiff used greater force than required without publishing any notice around there.

Inevitable accidents

“Inevitable” means the act which could not have been foreseen. “Accident” means unexpected injuries.

Case Laws

Stanley v. Powell

Plaintiff and Defendant were members of the shooting club. They were going for a pheasant shooting. The defendant fired at the pheasant but the shot from the gun hit a tree, bounced back, and injured the plaintiff. Here the injury was accidental and the defendant was not held liable for it.

Act of God

The act of God or Vis Major or Force Majeure may be defined as circumstances which no human foresight can foresee, any of human prudence can not recognize the possibility of that event. 

The act of God is a defence used in cases of torts where an event occurs over which the defendant has no control and the damage is caused by the forces of nature. In such cases, the defendant will not be held liable in tort law for such inadvertent damage.

Case Law

Kasturi Lal v. Hemchand

In this case, a building collapsed during the rainfall of 2.66 inches, causing the death of the plaintiff's two children. Here the defendant cannot take defence of the Act of God because that rainfall of 2.66 inches in the rainy season was not something extraordinary, it was somewhere the defendant's fault or negligence. 

So, the defendant was held liable for it.

Defences mentioned under the act of God:

1. Loss arising out due to working of natural forces. For example, heavy rainfall, Storms, etc.

2. The occurrence of loss must be extraordinary and not one which could be anticipated.

Mistake

Mistakes of law and fact have no defence. 

If a person willfully interferes with the rights of another person, then the defendant can’t take any defence of a mistake.

For Example:

A person after doing some wrongful act, can not say that, he didn’t know about the law related to this or he didn’t have knowledge that what he is doing is lawfully wrong. It will not count as a mistake, in fact, that person will be held liable for his wrong.

Defence of Mistake can be taken if:

1. The defendant acted under mistaken belief but his conduct was justified.

2. Society protects the justification.

Necessity

Necessity is defined under Section-81 of IPC (Indian Penal Code)

Some act done to prevent bigger harm is not wrong.

For Instance: 

If someone did an act that is wrong but he did that wrong to prevent bigger harm, he can not be held liable for that wrong he committed to prevent the bigger mishap.

1. Act done with the knowledge that was likely to cause harm.

2. Act done without any pre-planned intention to cause harm.

3. Act must be done in good faith.

4. Act must be done to prevent or avoid greater harm.

Private Defence

Private Defence is mentioned under Section-96 to 106 of the IPC (Indian Penal Code). If the defendant does any act against the plaintiff for the private defence then the defendant will not be held liable for it.

Private defence can be exercised to defend the person himself or any property. Thus, the law permits the use of reasonable force to protect a person or property. If the defendant uses some force to protect himself then the defendant will not be held liable.

Nothing is an offence that is done in exercise of the right of private defence.

Case Law

Bird v. Holbrook

In this case, the defendant in his garden put spring guns to defend his property from outsiders without fixing any notice around there, some of the trespassers were injured by the spring gun’s automatic discharge. Here, the plaintiff is liable to claim compensation from the defendant because the defendant used greater force than required without publishing any notice around there, he can only use a reasonable force to protect him or his property.

Statutory Authority

When a wrongful act is done under the authority of an act or order, it is a complete defense and the injured party has no remedy to claim for it, except for claiming such compensation as may have been provided by the statute. The damage resulting from an act, which is ordered by legislature authorizes or directs to be done by statute is not actionable, even though it would be a tort. 

For Example:

If a railway line is constructed, there may be interference with private land. While running off the train, there may also be some incidental harm due to noise, vibration, smoke, emission of sparks, etc. No action will lie either for interference with the land or for incidental harm, except for the payment of such compensation which the act itself may have provided, because the construction and the use of the railway are authorized under a statute. 

However, this does not give authorities the license to do anything they want unnecessarily; they must act reasonably. For this reason, certain guidelines need to be followed during the construction of public transport facilities.

Case Law

Smith v. London and South Western Railway Company

In this case, a servant of the Railway Company was trimming the grass and hedges near the railway line. Sparks from the railway engine passing from there set fire to the dry grass and through fast wind, the fire reached the plaintiff’s cottage which was situated a little far from the railway line. Thus, the cottage burnt and caused damage to the plaintiff. 

Here, negligence is on the part of the Railway Company, so they were held liable to pay compensation.

The writer is pursuing a degree of BA.LL.B (Bachelors of legislative law)

From, Department Of Law, Maharshi Dayanand University (Rohtak) Haryana, INDIA.

Reach her at Instagram @sakshiydv1108