General Defences in Law of Torts

Introduction:

Before going through the topic of general defences in tort claims, let’s have a view on the meaning of the law of torts.

So basically, the law of torts are civil wrongs. The word “tort” is derived from the Latin word ‘tortum’ which simply means ”to twist”. Thus the law of torts deals with the activities that are wrong, twisted, crooked, unlawful, etc.

There are three primary characteristics to constitute the law of torts against any person and those are as follows:-

• Firstly, there must be a legitimate right which is damaged by a wrongful act or omission
• Secondly, the wrongful act of the individual ought to render the violation of legitimate right
• Thirdly, there is a legitimate remedy for the damages caused by the lawful right.

The law of torts is based on the principle ”ubi jus ibi remedium”, it means for every wrongful injury, there must be some compensation.

General Defences

General defences are a set of defences or ‘excuses’ that you can undertake to escape liability in tort. When a plaintiff brings an activity against the litigant for a tort committed by him/her, he/she will be held obligated for it, if there exists all the fundamental ingredients which are required for that wrong. But there are a few defences accessible to him / her utilizing which he/she can pardon himself/herself from the risk arising out of the wrong committed.

However, some few special cases are there in which the defendant can argue a few defences which can offer assistance him in pardoning from liabilities. Some of those general defences in torts are listed below:

1. Plaintiff himself is wrongdoer

It is based on the saying ”ex turpi causa non oritur actio”, which means ”from an immoral cause, no action arises.” It means that if the offended party himself is engaged within the wrongful act or conduct, at that point he cannot recover damages.

If a person illegally tries to enter in someone’s house and got bitten by the animal pet, then, in this case, he cannot claim for the compensation because he himself is a wrongdoer.

Some relevant cases based on this general defence are:

1. Pitts vs Hunts:  This case tells that there was a motorcycle rider who was 18 years old. He empowered one of his friend who was 16 years old to drive bike fast under intoxicated conditions.  But their bike met with an accident, the driver died on the spot. The pillion rider suffered serious wounds and filed a suit for claiming compensation from the relatives of his died friend. This plea was rejected as he himself was the wrongdoer in this case.[1]
2. Bird vs Holbrook: This case tells that the offended party was entitled to recuperate damages suffered by him due to the spring-guns set by him in his garden without any take note for the same.[2]

2. Right to Private Defence

The law has given authorization to ensure one’s life and property and for that, it has permitted the use of sensible force to secure himself and his property.

In order to claim this defence, the following requirements must be fulfilled:

• the defendant must be under inescapable danger or attack.
•  the reaction must be essential for self-defence and not for revenge.
•  the reaction must be corresponding to the assault or threat.

The essentials of private defence are:

• Imminent Danger: There should be a quick threat over the life or property of the defendant or another person’s property and life in which there’s no time to report to the closest authority. If the defendant isn’t able to contact that particular authority, at that point he can start the act of the private defence.
• Proportional Force: The defendant should apply a reasonable force. The applied force should not be in excess of what is required.

If someone punches you and you shoot back, for revenge then that act would be count in excessive use of force and not in private defence but if you also use the same frequency then you can claim private defence.

Some relevant cases based on this general defence are:

1. Collins vs Renisons: This case tells that the offended party went up a ladder for nailing a board on a wall within the defendant’s garden. The defendant threw him off the step and when sued he said that he delicately pushed him off the ladder and nothing else. It was held that the force used was not reasonable as the defence.[3]
2. Ramanuja Mudali vs M Gangan: This case tells that a landowner i.e. the respondent had laid an arrange of live wires on his land. The plaintiff in order to reach his claim land attempted to cross his land at 10 p.m. He has gotten a shock and sustained a few serious wounds due to the live wire and there was no notice with respect to it. The litigant was held obligated in this case and the use of live wires isn’t justified within the case.[4]

3. Necessity

“Necessity knows on law”

It is based on Latin maxim, ”necessitas inducit privilegium quod jura private”, which means ”with respect to private rights necessity includes privilege. It tells that in necessity one has to show that the act was done was necessary in the circumstances.

The defence of necessity should be distinguished with inevitable accidents and private defence.

The essentials of necessity are:

•   In necessity, the punishment of hurt is upon a guiltless though in case of private defence the offended party is himself a wrongdoer.
•  In necessity, the harm is done intentionally while in case of an inevAitable accident the harm is caused in spite of making all the endeavours to dodge it.

If a doctor performs a serious operation on own risk then it will be counted under necessity.

Some relevant cases based on this general defence are:

1. R vs Dudley and Stephens: This case tells that the four English men in the ship, Mignonette confront a storm and are trapped in a boat thousand miles from the land within the ocean without adequate food or water. After quenching their food they are left with nothing but with the endless ocean without any location of land. Later, a few of them were found guilty of murder. They were sentenced to death but afterwards, their sentence was reduced to life imprisonment. It was held that necessity is no defence for a crime.[5]
2. Kirk vs Gregory: This case tells that A’s sister-in-law covered up a few jewellery after the passing of A from the room where he was lying dead, considering that to be a more secure place. The jewellery got stolen from there and a case was filed against A’s sister-in-law for trespass to the jewellery. She was held liable for trespass as the step she took was unreasonable.[6]

4. Inevitable Accident

Inevitable Accident could be an incident. Its event cannot be avoided in spite of taking any degree of care, caution and consideration by a standard and clever person. It serves as a good defence as the respondent might appear that the damage seems not be stopped indeed after taking all the safety measures and there was no expectation to harm the plaintiff.

On-road if you lose control on your car and you knock down someone, you cannot claim this general defence of inevitable accident.

Some relevant cases based on this general defence are:

1. Holmes vs Mather: This case tells that the defendant’s horse was being driven by his worker. Due to the barking of dogs, the horse got to be unmanageable and begun to bolt. In spite of each effort of the driver, the horse knocked down the offended party. This makes it a case of an inevitable accident and the respondents were held not liable for the incident.[7]
2. Stanley vs Powell: This case tells that the defendant and the plaintiff went to a pheasant shooting. The respondent fired at a pheasant but the bullet after getting reflected by an oak tree hit the plaintiff and he endured serious wounds. The incident was considered an unavoidable accident and the respondent was not liable in this case.[8]

5. Act of God

This is based on a Latin maxim ”vis major” which means ”superior force”. It means that accident occurs because of an unforeseen natural event such as flood, earthquake, cyclone, droughts, volcano eruptions, etc.

The essentials of act of god are:

• Extraordinary in nature
• The act should result from a natural force
• No human involvement

Below stated two requirements are necessary to satisfy to claim this defence:

• the harm must be caused by the impact of natural forces,
• the natural forces must be unexpected, or the impacts must be unavoidable.

You faced a round of light disturbing storm once and you don’t take any precautions, now you again face the storm, but this time it is harder than the previous one and damaged your property, then, in that case, you cannot use the precaution because you have ample of time to take precautions and avoid damage.

Some relevant cases based on this general defence are:

1. Ramalinga Nadar vs Narayan Reddiar: This case tells that the rowdy mob robbed all the merchandise transported within the defendant’s lorry. It cannot be considered to be an Act of God and the respondent, as a common carrier, will be compensated for all the loss endured by him.[9]
2. Kallu Lal vs Hemchand: This case tells that the wall of a building collapsed due to normal rainfall. The occurrence brought about within the death of the respondent’s children. The court held that the resistance of Act of God cannot be argued by the appellants in this case as that much rainfall was typical and something exceptional is required to argue this defence. The appealing party was held liable.[10]

6. Mistake

When a respondent acts under a mistaken belief in a few circumstances at that point he/she may utilize the protection of mistake to dodge his / her risk under the law of torts. It is usually not a defence under torts.

There are two types of mistake:

• Mistake of law- no defence in civil and criminal case
• Mistake of fact- not valid under torts

“Ignorance of the law is not an excuse, but ignorance of fact is an excuse.”

Some relevant cases based on this general defence are:

1. Consolidated Company vs Curtis: This case tells that an auctioneer auctioned a few products of his client, accepting that the products belonged to him. But at that point, the genuine owner recorded a suit against the auctioneer for the tort of conversion. The court held auctioneer obligated and said that the mistake of truth isn’t a protection that can be pleaded here.[11]
2. Morrison vs Ritchie & Co.: This case tells that the respondent by mistake distributed a statement that the plaintiff had given birth to twins in great faith. The reality of the matter was that the offended party got married fair two months sometime recently. The litigant was held liable for the offence of defamation and the element of great faith is irrelevant in such cases.[12]

7.  Statutory Authority

In case an act is endorsed by a statutory sanctioning or a law passed by the assembly, at that point the defendant cannot be held liable for the harms resulting within the course of such an act. Immunity under statutory authority isn’t given as it were for the harm which is apparent but too for the harm which is coincidental.

There are two types of authority given:

• Absolute-there’s no liability if the annoyance of some other harm essentially results.
• Conditional- it implies that the same is possible without annoyance or any other harm.

Some relevant cases based on this general defence are:

1. Metropolitan Asylum District vs Hill: There was an allegation that the managers had been committing an actionable disturbance, then again that they had been negligent in and almost the construction and maintenance of a hospital for small-pox patients in Hampstead.[13]
2. Vaughan vs Taff Valde Rail Co.: This case tells that sparkles from an engine of the respondent’s railway company were authorized to run the railway, set fire to the appellant’s woods on the connecting arrive. It was held that since they did not do anything which was prohibited by the statute and took due care and safety measure, they were not liable.[14]

8. Volenti non-fit Injuria (VNFI)

This Latin maxim means ”voluntary taking no risk”. It is a good defence. In volenti non fit injuria, if an offended party has agreed to a wrongful act with free substance, either express or implied, under no pressure of extortion or constraint, with deliberate acceptance of risk, at that point he has no right to sue the defendant. Including, there should be a duty on the sake of others.

The principle is found on great sense and justice in which the one who has consented the act which, otherwise, would be significant will not be held at risk if endures any damage.

• A player in-game ready to suffer any harm via anything.
• You cannot sue someone under trespass if you call them personally (like guest).

Some relevant cases based on this general defence are:

1. Illot vs Wilkes- This case tells that a trespasser, who knew about the presence of spring weapons on a land, and might not recuperate damages when he was shot by a spring gun. Essentially, damage caused to a trespasser by broken glass or spikes on a wall, or a furious dog, this was not actionable and the defendant was not liable.[15]
2. Lakshmi Ranjan vs Malar Hospital- This case tells that- a 40-year-old married lady taken note on a lump in her breast but this pain does not affect her uterus. After the operation, she saw that her uterus has been removed without any justification. The hospital specialists were liable for this act. The patient’s consent was taken for the operation and not for removing the uterus.[16]

Conclusion

This article shows the role played by General Defences in maintaining a strategic distance from one’s liability in torts. Whereas learning around tort it is essential to memorize around general defences within the law of Tort. General defences are a set of ‘excuses’ that you just can embrace to elude liability. In arrange to elude liability within the case where the offended party brings an activity against the respondent for a specific tort giving the presence of all the basics of that tort, the respondent would be obligated for the same. It notices all the defences which can be pleaded in cases depending upon the circumstances and realities. In order to argue a protection it is important to get it first and after that apply the suitable defence appropriately.

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References:

[1] (1990) 3 All ER 344

[2] 130 Eng Rep 911 (1825)

[3] (1973) QB 100

[4] AIR 1984 Mad 103

[5] (1884) 14 QBD 273 DC

[6] (1876) 1 Ex. D. 55

[7] (1875) 10 Ex 261

[8] 7 L.T.R. 25

[9] AIR 1971 Ker 197

[10] AIR 1958 MP 48

[11] (1892) 1 QB 495

[12] 1902

[13] (1881) 6 App Las 193 HL

[14] (1858) 157 ER 667

[15] (1820) 3 B & Ald 304

[16] 1997