General Defences under Tort

When an action is brought against the defendant by the plaintiff which covers all the essentials of that tort, the defendant would be liable. But he can avoid his liability by taking plea of some defences.

Defences are of two types – specific offence and general defence. Specific defence are peculiar to some particular wrongs, general defences can be taken for number of wrongs.

There are various types of general defences like –

  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

It means voluntary assumption of risk. When the plaintiff suffers some harm for which he himself has consented,it is a complete defence for the defendant.

Illustration- if I invite somebody to my house, I cannot sue him for the trespass. If in the game of cricket if any player gets hurt while the game is being played lawfully consent in such case is to risks of pure accidents and the defendant cannot be made liable for it. If the injury inflicted was a deliberate one then the defendant can be made liable.

In Hall v. Brookland Auto racing Club[1], the plaintiff who was a spectator at a car race, being conducted by the defendants, was accidentally thrown into the spectator’s enclosure. It was held that the plaintiff impliedly took the risk of such injury, the danger being inherent in the sport and the defendants were not made liable.

This doctrine does not apply to the case of negligence. If an operation is unsuccessful because of the negligence of the surgeon, he can be sued because the plaintiff never consented to suffer the harm caused by surgeon’s negligence.

Limitations of this doctrine

Thescope of this doctrine has been curtailed in the cases of

  1. In rescue cases
  2. By the unfair contract term

Rescue cases

The doctrine does not apply to rescue cases. When the plaintiff volunteers to rescue somebody from an imminent danger caused by the wrongful act of the defendant, he cannot be met with the defence of volenti non fit injuria.

In Haynes v. Harwood[2] it was held that even though the policeman had taken the risk voluntarily he was entitled to compensation because he had gone to rescue women and children. Even with respect to property if a person voluntarily takes risk for rescuing the property.

Unfair contracts terms

Sec 2 of the cat limits the right of a person to restrict or exclude his liability resulting from the negligence by a contract term or a notice. There is a complete ban on a person’s right to exclude his liability for death or personal injury resulting from negligence, by a contract term or a notice. In other cases, exclusion of liability by contract term or notice is possible, only if such term or notice is reasonable.

  • Plaintiff the wrongdoer

The mere fact that the plaintiff himself is the wrongdoer does not disentitle him from recovering the loss which he suffers. In Bird v. Holbrook[3] it was held that the trespasser is entitled to claim compensation for the injury caused by spring guns set by the defendant without notice in his garden.

  • Inevitable accident

Inevitable accident means an unexpected injury which could not have been avoided in spite of reasonable care on the part of the defendant. In Stanley v. Powell[4], the defendant fired at a bird from the pellet of the gun, it striked the tree and rebounded and injured the plaintiff in different direction, the defendant took the defence of inevitable accident.

  • Act of god

This defence is a kind of inevitable accident. The rule of Rylands v. Fletcher[5] also recognises this defence. If there is working of natural forces and the event is one which could not have reasonably anticipated and guarded against, the defence of act of god is available.

In Nicholas v. Marsland[6], four bridges belonging to plaintiff had been washed by an unprecedented heavy rainfall which made the water to escape from the defendant’s artificial lakes.The defendant was not liable as the escape of water and consequential loss was due to an act of god.

Working of natural forces like rainfall, storm, tides, tempests or volcanic eruption should be there.

  • Private defence

The law permits the use of reasonable force to protect one’s person or property. The force must be to repel an imminent invasion. Use of force, therefore cannot be justified either in anticipation of some threat or by way of retaliation. The force used by the defence should be as necessary to repel the invasion. Fixing of broken glass or spikes in a wall, or keeping fierce dog can be justified but fixing up of spring guns without any warning to trespasser or live electric wire to keep the trespasser away cannot be justified.

  • Mistake

In an action for tort mistake whether of fact or law is no defence. Entering the land of another thinking to be one’s own is trespass, driving the plaintiff’s sheep amongst one’s own herd is trespass to goods, injuring the reputation of another without an intention to defame is defamation.

In Consolidated Co. v. Curtis[7], A gave certain goods to an auctioneer for being auctioned. The auctioneer honestly believing that A was the owner of the goods auctioned them. Goods belonged to another person ‘B’. The auctioneer was held liable for tort of conversion.

  • Necessity

 An act causing damage, if done under necessity to prevent a greater evil is not actionable even though the harm was caused intentionally. Throwing goods overboard a ship to lighten the weight of the ship and persons on board of a ship or pulling down a house to stop further spread of fire are some of the examples of it.

  • Statutory Authority –

When an act is done under the authority of an Act is a complete defence and the injured party has no remedy except for claiming such compensation as may be provided in the statue. Immunity is not only for the harm which is obvious, but also for that which is incidental to exercise of such authority. When a railway line is constructed under the authority of the statute, there is no liability in respect of interference with land, there is no incidental harm due to noise, vibration, smoke, emission or sparks which could be thereby running of the trains.

The authority given by the statue may be conditional or absolute. When the authority is absolute there is no liability for nuisance or any other harm which may ensue. But when the authority is conditional, the permitted act can be done provided no harm is caused thereby.

In Metropolitan Asylum District v. Hill[8] permission to erect a smallpox hospital has been considered to be a conditional authority. The erection of a smallpox hospital in a residential area which create a danger of infection to the residents has been held to be a nuisance for the removal of which an injunction can be issued.

References

Dr. R. K. Bangia, “Law of Torts” (Allahabad Law Agency, 23rd edn.) 28


[1] [1932] All E.R. Rep. 208

[2] [1935] 1 K.B. 146

[3] [1828] 4 Bing.628

[4] [1891] 11 Q.B. 86

[5] (1868) L.R. 3 H.L. 330

[6] [1876] 2 Ex. D. 1

[7][1894] 1 Q.B. 495

[8] [1881] 6 A.C 1934

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