JUSTIFICATION OR DEFENCE IN TORT

“ Volenti non fitinjuria” (defense in torts)

Generally speaking, harm suffered by consent ground no cause of civil action. This is usually expressed by the maxim volenti non fitinjuria.

This maxim literally means act done after given the consent by the person , can not be complained of as an injury.

A person who make an agreement with another, either expressly or by implication, person can not claim damages for any injury.

Essential of volenti non fitinjury as follow :

• Knowledge
• Consent :  The consent may be express or implied.
• Express consent may be clearly expressed by written.
• Implied consent may be clearly by an action or implementation of an action  by person.

• Examples of consent :
• A invite guest in house later he can’t sue then as trespass.
• A patient gave consent for surgery, later he can’t sue the surgeon for doing the operation.
• If A cries for help and B voluntarily tries to help him and if person B get injured , later he can’t sue A .
• A videographer get injured while shooting racing car as the car goes off track accidentally : the car driver is not liable.
• A spectator in a cricket match got injured by the ball. He gave his implied consent and voluntarily sat in the stadium.

CASE LAW 1: Hall V. Brookland’s Auto-racing club

Fact :   The plaintiff, a spectator at a car race , being conducting by the defendant was injured . during the race , there was collision between two cars , one of which car was thrown among the spectators, thereby injured the plaintiff.

Judgement: In this case defendant was not held liable because plaintiff gave implied consent.

CASE LAW 2: Bolton V. stone

Fact :  A person who was hit by ball in cricket match got injured by the ball.

Judgement : he failed to get damages because he gave implied consent while he brought tickets.

CASE LAW 3: Padmavati V. Dugganaika

Fact : While a driver was taking petrol at petrol pump, two strangers took lift in a jeep, suddenly front wheel of jeep failed and jeep became uncontrolled . both the stranger thrown away . one of them instantly died and another was injured.

Judgement: Here plaintiff was not held liable, because strangers voluntarily took lift

 “Necessity” (defense in tort)       

If an act is done to prevent greater harm, even though the act was done intentionally, is not actionable and serves as a good defense.

This defense help those cases involving urgent situation of imminent peril/problem.

 The exception of necessity is found on the maxims  salus populi suprema lex (the welfare of the people is the supreme law).

Condition of reasonableness:

1. Interference must be necessary;
2. Process of interference must be reasonable;
3. The harm caused must have some ratio with the evil prevented or sought to be prevented.

 CASE LAW 1:  kirk V. Gregory:

• Fact       : A’s sister-in-law hid some jewelry after the death of A , from the room where he was lying dead, thinking that to be more safe place.
• The jewelry got stolen from there and a case was filled against A’s sister-in-law for trespass to the jewelry.

• Judgement:  In this case no proof that interference was reasonable necessary, she was held liable for trespass.

 CASE LAW 2: Carter V. Thomas:

• Fact : the defendant who entered the plaintiff’s land premises in good fait to extinguish the fire, at which the fire extinguish workmen were already working .
• Judgement: the defendant was held guilty of the offence of trespass.

    “INEVITABLE ACCIDENT” (general defense in tort)

• If the plaintiff has unexpected injury owing to an unforeseen and inevitable accident event in spite of reasonable care on the part of the defendant. It is called inevitable accident
• If defendant has to prove that he neither intended to injury the plaintiff,  nor had means to avoided injury by taking reasonable care.

Cases law : Brown V. Kendall

• Fact :     In a fight between two dogs , one belonging to the defendant and other belonging to the plaintiff. While trying to separate the dogs , defendant accidentally hit the plaintiff , who was standing close by in his eye.

• Judgement : the defendant  was not held be liable as the injury to the plaintiff was the result of an accident.

  “ACT OF GOD” (DEFENCE OF TORT)

Act of god refers to the some natural calamity such as heavy rainfall, storm, tempests, volcanic eruption, earthquake etc. 

Three conditions are essentials for pleading this defense are:

(a) There must be working of natural forces.

 (b) There occurrence must be extraordinary not the which could not have anticipated.

 (c) It must be beyond the control of human kind .

Case law 1: Nicole V. Marshland

Fact      : The defendant was owner of states containing lakes of ornament water fed by naturally streaming passing through the estates. 18^th  June 1872 on that day , A very heavy rainfall caused the lakes over flow theirs banks, floods the river and carry away four bridges. The plaintiff claimed compensation for the loss.

Judgement: the court decide that over the flow of lack was due to ACT OF GOD( vis major).

Case law 2: Ramalinga Nagar V. Narayana Reddiar

Fact : The plaintiff had booked goods with the defendant for transportation. The goods were looted by mob, the prevention of which was beyond the control of defendant . It was held that the destructive act of an unruly mob can not be considered ACT OF GOD. It was observed that accident may happen by reason of natural force or by the intervention of human agency or by both.

Judgement: it may be either of this cases, an accident may be inevitable but in this act traced to natural forces .

So which can nothing to do against human agency that could be an said to be ACT OF GOD.

STATUTORY AUTHORITY (DEFNSE IN TORT)

• Statutory authority means “an authority or power given by law to do certain acts and if a tort is committed  in the course of action of any such act, the injured person will have no claim unless the act has been done negligence”.

• The basis is philosophy behind the statutory immunity is that the lesser private right must yield to the greater public interest .

• The government can acquire land even against the will of the people for the development purpose as they have statutory authority,

But a builder can not force one to sell his property under the grab of development, as he has not statutory authority.

CASE LAW 1: Hammer smith rail co. V. Brand

Fact : The valuable of plaintiff’s property had considerably depreciated due to the noise, vibration, and smoke caused by the running of trains. The damage being vibration and smoke caused by the running of trains, The damage being necessarily incidental to the running of the train authorized by the statute. Judgement: it was held that no action lies for the same.

CASE LAW 2: Bhogi Lal v. The municipality of Ahmedabad

Fact : The municipality demolished the wall of the plaintiff under their statutory authority/power. The demolished of the walls also resulting in the failing roof of the defendant on the wall. On an action by the plaintiff for the damages of his property.

Judgement: it was held by the court that defendant would  not be liable. For no suit will lie on behalf of a man who sustain a private injury by the execution of power given by the statute. This powers being exercised by with judgement and caution.

Ref. LAW OF TORTS including Consumer Protection Act……..Mayank Madhav.

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