Notes on General Defences against to Tortious Liability

Notes on General Defences against to Tortious Liability

General Defences in Law of torts

General Defences: When the plaintiff brings an action against the defendant for a particular tort providing the existence of all the essentials of that tort the defendant would be liable for the same. The defendant may, however, even in such a case, avoid his liability by taking the plea of some defence. There are some General defences, which 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 which may be taken against action for a number of wrongs.

For example, the general defence of ‘Consent’ may be taken whether the action is for trespass, defamation, false imprisonment, or some other wrong.

  1. Volenti non fit injuria, or the defence of ‘Consent’
  2. Inevitable accident
  3. Act of God
  4. Private defence
  5. Necessity
  6. Statutory authority
  • Volenti non fit injuria
    • When a person consents to the infliction of some harm upon himself, he has no remedy for that in tort. In case the plaintiff voluntarily agrees to suffer some harm, he is not allowed to complain for that and his consent serves as a good defence against him.
    • No man can enforce a right which he has voluntarily waived or abandoned. Consent to suffer the harm may be express or implied.
    • For the defence of consent to be available the act causing the harm must not go beyond the limit of what has been consented. But if there is a deliberate injury caused by another, the defence of volenti cannot be pleaded.
    • Hall v. Brooklands Auto Racing Club, 1932 All; Fact of the Case: The plaintiff was a spectator at a motor car race being held at Brooklands on a track owned by the defendant company. During the race there was a collision between two cars, one of which was thrown among the spectators, thereby injuring the plaintiff. Held: It was held that the plaintiff impliedly took the risk of such injury, the danger being inherent in the sport which any spectator could foresee, the defendant was not liable.
    • Padmavati v. Dugganaika, 1975; Fact of the Case: In this case, while the driver was taking the jeep for filling petrol in the tank, two strangers took lift in the jeep. Suddenly one of the bolts fixing the right front wheel to the axle gave way toppling the jeep. The two strangers were thrown out and sustained injuries, and one of them died as a consequence of the same. Held: It was held that neither the driver nor his master could be made liable, firstly, because it was a case of sheer accident and, secondly, the strangers had voluntarily got into the jeep and as such the principle of volenti non fit injuria was applicable to this case.
    • Thomas v. Quartermaine, 1887; Fact of the Case: The plaintiff, an employee in the defendant’s brewery, was trying to remove a lid from a boiling vat. The lid was stuck and by the plaintiff’s extra pull to it, it came off suddenly and the plaintiff fell back into the cooling vat which contained scalding liquid. The plaintiff was severely injured. Held: The majority of the court of Appeal held that the defendant was not liable because the danger was visible and the plaintiff appreciated and voluntarily encountered the same.
    • Similarly, in Illot v. Wilkes, 1820; a trespasser, who knew about the presence of spring guns on a land, could not recover damages when he was shot by a spring gun.
    • The consent must be free [Free Consent]
      • For the defence to be available it is necessary to show that the plaintiff’s consent to the act done by the defendant was free and if the consent of the plaintiff has been obtained by fraud or under compulsion or under some mistaken impression, such consent does not serve as a good defence.
      • Moreover, the act done by the defendant must be the same for which the consent is given.
      • When a person is incapable of giving his consent because of his insanity or minority, consent of such person’s parent or guardian is sufficient.
    • Mere knowledge does not imply assent
      • For the maxim volenti non fit injuria to apply two points have to be proved;
        1. The plaintiff knew that the risk is there.
        2. He, knowing the same, agreed to suffer the harm.
      • If only first of these points is present, i.e., there is only the knowledge of the risk, it is no defence because the maxim is volenti non fit injuria (Thomas v. Quartermaine, 1887). Merely because the plaintiff knows of the harm does not imply that he assents to suffer it.
      • Bowater v. Rowley Regis Corporation, 1944; Fact of the Case: The plaintiff, a cart driver, was asked by the defendant’s foreman to drive a horse which to the knowledge of both was liable to bolt. The plaintiff protested but ultimately took out the horse in obedience to the order. The horse bolted and the plaintiff was injured thereby. Held: It was held that the maxim volenti non fit injuria did not apply and the plaintiff was entitled to recover.
      • Smith v. Baker, 1891; Fact of the Case: The plaintiff was a workman employed by the defendants on working a drill for the purpose of cutting a rock. By the help of a crane, stones were being conveyed from one side to the other, and while he was busy in his work, a stone fell from the crane and injured him. Held: It was held by the House of Lords that as there was mere knowledge of risk without the assumption of it, the maxim volenti non fit injuria did not apply, and the defendants were liable.
    • Negligence of the defendant
      • For the defence to be available it is further necessary that the act done must be the same to which the consent has been given.
      • When the plaintiff consents to take some risk the presumption is that the defendant will not be negligent.
      • Slater v. Clay Cross Co. Ltd. 1956; Fact of the Case: The plaintiff was struck and injured by a train driver by the defendant’s servant while she was walking along a narrow tunnel on a railway track which was owned and occupied by the defendants. The company knew that the tunnel was used by the members of the public and had instructed its drivers to whistle and slow down when entering the tunnel. The accident had occurred because of the driver’s negligence in not observing those instructions. Held: It was held that the defendants were liable.
    • Limitations on the scope of the doctrine of volenti non fit injuria
      • The scope of application of the doctrine of volenti non fit injuria has been curtailed where in spite of the fact that the plaintiff has consented to suffer the harm, he may still be entitled to his action against the defendant in these exceptional situations;
        1. Rescue cases: when the plaintiff voluntarily encounters a risk to rescue somebody from an imminent danger created by the wrongful act of the defendant, he cannot be met with the defence of volenti non fit injuria.
          1. Haynes v. Harwood, 1935; Fact of the Case: The defendant’s servant left a two-horse van unattended in a street. A boy threw a stone on the horses and they bolted, causing grave danger to women and children on the road. A police constable, on seeing the same, managed to stop the horses, but in doing so he himself suffered serious personal injuries. Held: It being a ‘rescue case’ the defence of ‘volenti non fit injuria’ was not accepted and the defendants were held liable.
        2. Unfair Contract Terms Act, 1977 limits the right of a person to restrict or exclude his liability resulting from his negligence by a contract term, or by notice. Section 2 of the Act contains the required provisions in this regard.
  • Inevitable Accident: Accident means an unexpected injury and if the same could not have been foreseen and avoided in spite of reasonable care on the part of the defendant, it is inevitable accident. It is, therefore, a good defence if the defendant can show that he neither intended to injure the plaintiff nor could he avoid the injury by taking reasonable care.
    • Stanley v. Powell, 1891; Fact of the Case: The plaintiff and the defendant, who were members of a shooting party, went for pheasant shooting. The defendant fired at a pheasant, but the shot from his gun glanced off an oak tree and injured the plaintiff. Held: It was held that the injury was accidental and defendant was not liable.
    • Similarly in Holmes v. Mather, 1857; the defendant’s horses were being driven by his servant on a public highway. The horses were so startled by the barking of a dog that they became unmanageable, and, in spite of best care by the defendant’s servant to control them, they knocked down the plaintiff. It was held that the defendant was not liable.
    • Brown v. Kendall, 1850; Fact of the Case: The plaintiff’s and the defendant’s dogs were fighting. While the defendant was trying to separate them, he accidentally hit the plaintiff in his eye, who was standing nearby. Held: The injury to the plaintiff was held to be the result of pure accident, for which no action could lie.
    • Padmavati v. Dugganaika, 1975; Fact of the Case: Two strangers took lift in a jeep Shortly afterwards one of the bolts fixing the right front wheel of the jeep to the axle gave way and the wheel flew away from the axle. The jeep was toppled; the two strangers got serious injuries resulting in the death of one of them. Held: It was found that it was a case of sheer accident, as there was no evidence to show that the defect was a patent one and could have been detected by periodical check-up. The defendants, i.e., the driver of the jeep and his master, were, therefore, held not liable.
    • National Coal Board v. Evans, 1951; Fact of the Case: The plaintiff’s predecessors in title had laid an electric cable under the land of a county council without their knowledge The county council employed certain contractors to make the excavations. The contractors, not being aware of the underground cable, the same were damaged in course of excavation. Held: It was held that it was the fault of the plaintiff’s predecessors that they wrongfully placed their cable on another’s land The defendants had no opportunity of discovering the same, and, therefore, they were not liable.
  • Act of God (vis major): Act of God is a kind of inevitable accident with the difference that in the case of Act of God the resulting loss arises out of the working of natural forces like exceptionally heavy rainfall, storms, tempests, tides and volcanic eruptions. The rule of Strict Liability, i.e., the rule in Rylands v. Fletcher, 1868; also recognizes this to be a valid defence for the purpose of liability under that rule. Two important essentials are needed for this defence; There must be working of natural forces. The occurrence must be extraordinary and not one which could be anticipated and reasonably guarded against.
    • Working of natural forces
      • Ramalinga Nadar v. Narayan Reddiar, AIR 1971 Kerala 197; Held: It has been held that the criminal activities of the unruly mob which robbed the goods transported in the defendant’s lorry cannot be considered to be an act of God and the defendant is liable for the loss of those goods as a common carrier, “it is only those acts which can be traced to natural forces and which have nothing to do with the intervention of human agency that could be said to be acts of God.”
      • Nichols v. Marsland, 1876; Fact of the Case: The defendant created some artificial lakes on his land by damming some natural streams. Once there was an extraordinary heavy rainfall, stated to be the heaviest in human memory, as a result of which the embankments of the lakes gave way. The rush of water washed away four bridges belonging to the plaintiff. Held: It was held that the defendants were not liable as the loss had occurred due to act of God.
    • Occurrence must be extraordinary
      • Kallulal v. Hemchand, AIR 1958 Madh. Pra. 48; Fact of the Case: The wall of a building collapsed on a day when there was a rainfall of 2.66 inches. That resulted in the death of respondent’s two children. Held: The Madhya Pradesh High Court held that the defendant (appellant) could not take the defence of Act of God in this case as that much of rainfall during the rainy season was not something extraordinary but only such as ought to have been anticipated and guarded against. The appellant was, therefore, held liable.
  • Private Defence:
    • The law permits use of reasonable force to protect one’s person or property. If the defendant uses the force which is necessary for self-defence, he will not be liable for the harm caused thereby. The use of force is justified only for the purpose of defence. The use of force is justified only for the purpose of defence.
    • There should be imminent threat to the personal safety or property.
    • It is also necessary that such force as is absolutely necessary to repel the invasion should be used, i.e., the force used should not be excessive and what force is necessary depends upon the circumstances of each case.
    • In Bird v. Holbrook, 1823; the defendant had put up spring guns in his garden without fixing any notice about the same and a trespasser was seriously injured by its automatic discharge. It was held that the plaintiff was entitled to recover compensation as the force used here was greater than the occasion demanded.
    • Similarly, in Ramanuja Mudali v. M. Gangan, AIR 1984 Mad. 103; the defendant, a land owner had laid some live electric wire on his land as a sort of fence. While the plaintiff passed through the defendant’s land to reach his own land, he received a shock from the wire and sustained injuries. The defendant had given no visible warning about such wire. He was, therefore, held liable for the injuries caused to the plaintiff. [Cherubin Gregory v. State of Bihar, AIR 1964 SC 205]
  • Necessity
    • An act causing damage, if done under necessity to prevent a greater evil is not actionable even though harm was caused intentionally.
    • Necessity should be distinguished from private defence. In necessity, there is an infliction of harm on an innocent person whereas in private defence harm is caused to a plaintiff who himself is the wrongdoer.
    • Necessity is also different from inevitable accident because in necessity the harm is an intended one whereas in inevitable accident the harm is caused in spite of the best effort to avoid it.
    •  It is based on the maxim necessitas non habet legem which means necessity has no law.
    • In Leigh v. Gladstone, 1909; forcible feeding of a hunger striking prisoner to save her life was held to be a good defence to an action for battery.
    • Cope v. Sharpe, 1891; Fact of the Case: The defendant entered the plaintiff’s land to prevent the spread of fire to the adjoining land over which the defendant’s master had the shooting rights. The defendant’s act was considered to be reasonably necessary to save the game from real and imminent danger. Held: It was held that the defendant was not liable for trespass.
    • If, however, the interference is not reasonably necessary, the defendant will be liable. In Carter v. Thomas, 1891; the defendant, who entered the plaintiff’s premises in good faith to extinguish fire at which the firemen had already been working, was held liable for trespass.
  • Statutory Authority
    • The damage resulting from an act, which the legislature authorizes or directs to be done, is not actionable even though it would otherwise be a tort. When an act is done under the authority of an Act, it is complete defence and the injured party has no remedy except for claiming such compensation as may have been provided by the statute. Immunity under statutory authority is not only for that harm which is obvious, but also for that harm which is incidental to the exercise of such authority.
    • Vaughan v. Taff Valde Rail Co., 1860; Fact of the Case: Sparks from an engine of the respondent’s railway company, which had been authorized to run the railway, set fire to the appellant’s woods on the adjoining land. Held: It was held that since the respondents had taken proper care to prevent the emission of sparks and they were doing nothing more than what the Statute had authorized them to do, they were not liable.
    • Similarly, in Hammer Smith Rail Co. v. Brand, 1869; the value of the plaintiff’s property had considerably depreciated due to the noise, vibration and smoke caused by the running of trains on a railway constructed under statutory powers. The damage being necessarily incidental to the running of the trains authorized by the statute, it was held that no action lies for the same.
    • It is necessary that the act authorized by the legislature must be done carefully, and therefore, “an action does lie for doing that which the legislature had authorized, if it be done negligently.”
    • Smith v. London & South Western Railway Co., 1870; Fact of the Case: The servants of a Railway Co. negligently left trimmings of grass and hedges near a railway line. Sparks from an engine set the material on fire. By a heavy wind the fire was carried to the plaintiff’s cottage, 200 yards away from the railway line. The cottage was burnt. Held: Since it was a case of negligence on the part of the Railway Company, they were held liable.

Book Recommendation Law of Torts

  1. Law of Torts With Consumer Protection Act by RK Bangia
  2. The Law of Torts by Ratanlal &  Dhirajlal

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