Section 76- Section 106
General Defences available in Torts
Volenti Non fit Injuria (Consent)
Plaintiff is the wrong doer
Vis Major i.e. Act of God
Volenti non fit injuria
‘Volenti non fit injuria’ literally translates to “to one who volunteers, no harm is done” which means the plaintiff has waived his rights and now he cant complain.
• Consent could be Express or Implied
• Consent should not have been given on basis of a fraud or under any compulsion.
• No liability only for the consented act
• Scienti non fit injuria” – Knowledge of risk is not equal to consent of risk.
• Exception to Volenti Non fit Injuria: Rescue cases.
Plaintiff is the wrong doer
“Ex turpi causa non oritur actio” (from an immoral cause, no action arises) A plaintiff will be unable to pursue legal remedy if it arises in connection with his own illegal act
Plaintiff is not disabled from recovering in tort “unless some unlawful act or conduct on his own part is connected with the harm suffered by him as part of the same transaction”
A trespasser is liable to an action for the injury which he does; but he does not forfeit his right of act ion for an injury sustained.
An inevitable accident is one that was not intended, and which, under all the circumstances, could not have been foreseen or prevented by the exercise of reasonable precautions. It is a good defence to a claim for negligence.
Example:- If A was driving a car and he was all in his senses and took all due care, but suddenly due to mechanical part failure his car loses his balance and hits a passer-by. In this case, the driver would not be liable as he took all precautions from his side. The accident was unavoidable.
Act of god
‘Vis Major’ is a Latin term which means superior force. It literary means an act of nature without any human intervention. Which cannot be forced scene by any amount of human ability and skill. If scene cannot be prevented by any means, care and skill.
An act of God is a defence used in cases of torts when an event over which the defendant has no control over occurs and the damage is caused by the forces of nature. In such cases the defendant will not be liable in a court of law.
An act of God is an inevitable accident which results in the loss of the mankind. Examples of an of God are :- heavy rainfall, storms, tsunamis, earthquakes, volcanic eruptions. Etc.
In today’s Era, the technology has become so vast that it can be already known whether the tsunamis or earthquakes are going to happen. So the applicability to prove this defence in today’s era has been reduced.
Important essential that are needed for this defence:-
• There must be working of extraordinary natural forces.
• The occurrence must be extra ordinary and not one which could be anticipated and reasonably guarded against.
• Natural force should not be predictable and
• It should be beyond the power of human mankind.
The law gives power to defend yourself, other people and property. The condition to exercise self defence is that there should be an imminent threat to a person’s life or property.
The force used must be reasonable and proportionate to the danger, like we already saw in the case of Bird v. Holbrook where loading spring guns in garden without notice was considered disproportionate force.
Mistake of Law; Mistake of Fact both are not a defence in tort.
There are some exceptions when the defendant may be able to avoid his liability by showing that he acted under an honest but mistaken belief.
For the wrong of malicious prosecution, it is necessary to prove that the defendant had acted maliciously and without reasonable cause and if the prosecution of an innocent man is mistaken, it is not actionable.
Similarly, mistake of a servant may put his act outside the course of employment of his master and the vicarious liability of the master may not arise.
Preventing greater harm is a valid defence.
Necessity v. Private Defence : In Necessity infliction of harm will be on innocent plaintiff, in Private defence it will be on a wrongdoer plaintiff.
Necessity v. Inevitable Accident : In Necessity harm is done intentionally compared to inevitable accident where harm is caused in spite of all attempts to avoid it.
Act authorized by any act or statute is not actionable even if it would constitute a tort otherwise. It is a complete defence
Injured party has remedy of claiming compensation as provided in the act.
The authority given by a statute can be of two types:
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