AAYUSH BHARDWAJ
- INTRODUCTION : Tort law is law of civil wrongs and whenever any case has been filed versus the accused person or defendant, then after analyzing all the vital elements of the wrong, in case if they fulfill to be considered as wrong then the defendant would be consider or held responsible for the conduct. In case certain the individual who has been accused can get obviate the liability by taking the supplication of the general defenses provided under the law of tort. Even it has to looked upon that certain exemptions or defence are provided only for the certain type of cases for instance if the act of defamation then few defence such as fair comment, privileges and justification the said statement or the publish info about the person or the thing etc. Now we will look at the meaning of the general defenses in tort, basically in the commission of tort if all vital elements have been fulfilled made the conduct eligible as a tort then in that scenario there are defence that can free the individual from the liability comes because of the wrong done by him, such defence be considered as general defence.
- GENERAL DEFENCES : There are 8 general defenses1 in tort they are as follows :
- Volenti Non Fit Injuria or the defense of the consent
- Plaintiff the Wrongdoer
- Inevitable Accident
- Act of God
- Private Defence
- Mistake (Mistake of Law & Mistake of Fact)
- Necessity
- Statutory Authority ( Absolute and Conditional Authority)
1) Volenti Non Fit Injuria or the defense of the consent : The Volenti Non Fit Injuria doctrine based on the view point that no man can enforce a right that he himself has relinquish or willfully given up but one thing to keep in mind that the damage took place should be in the ambit for which the plaintiff consented, for the same nature of case there is case of Lakshmi Raj V. Malar Hospital Pvt.Ltd in this the plaintiff only given the consent for the removal of appendix but the surgeon along with appendix also removed the uterus without obtaining the
1 RK BANGIA (LAW OF TORTS)
consent which goes out of the ambit for which was consented. When the matter taken before the court, the hospital held liable to pay the compensation to the plaintiff. Now talking about the obtaining of the consent, then the consent has to free which is the bedrock of any consent any of the condition if the obtained consent is not free then it will out of the eligibility criteria to be used as general defense. So any consent obtained in the presence and involvement of fraud and compulsion. To clarify the doubt in the case of master and servant relationship, in this if the consent given by the servant was the command of master then it will not applicable, but in case if consent is not under any sort of compulsion then the application of Volenti Non Fit Injuria will be applicable. Mere knowledge does not imply assent, in this the key points are (1) The plaintiff knew that the risk is mere (2) he knowing the nature of the conduct, agreed to suffer the harm but it does not mean he connote to accede to undergo it.
- Plaintiff the Wrongdoer : In this the word suggest itself the meaning, basically when the plaintiff individual is the one who committed the wrong then how can plaintiff expect to get the remedy from the defendant, to go in to the technicality of it then it can be seen that it has taken from the maxim2 “EX TURPI CAUSA NON ORITUR ACTIO” which means from an immoral cause, no action arises”. It’s a very basic understanding of the law that if the action of the plaintiff relied on the unlawful undertake then he cannot get any sort of damage or compensation.but one key thing in this defense is that even if plaintiff is the wrongdoer it will not make defendant free from his liabilities as he is only free from liability of this point. Now look at two cases the first case is Bird v. Holbrook, in this the plaintiff placed spring guns in his garden without any sort of caution notice, when the boy named Holbrook went in to the garden he got injured by the spring gums placed, in this it was held that plaintiff was ordered to retrieve the damages suffered by him. Now look at the second case, Pitts v. Hunt , in this case there was an individual who was 18 years old and was a rider. He was with his friend who was 16 years old he pushed him to drive the bike under the intoxicated condition later on the bike met with an terrible accident, in that accident the 16 year old died and the rider boy got badly injured and he also filed a suit for asserting the compensation from the family of the 16 year old, but in this the court rejected his claim by stating that he himself was the wrongdoer in the case.
- Inevitable Accident : Inevitable Accident is a very simple term which itself suggested the meaning of it, inevitable literally means which cannot be avoided after taking all necessary measures and precautions and accident meant an injury which is unexpected or something which cannot be predicted, so the combination says any accident which cannot be prevented even taking all necessary precautions and measures, so it is one of the best defenses in which the defendant could prove that even after doing everything the accident took place and he didn’t have the intention to cause any sort of harm to plaintiff. In the famous case of Stanley v. Powell both the plaintiff and defendant went to wildfowl shooting, but as they reached the destination they started firing at the pheasant but the bullet after strike the tree it got reflected then comes to the plaintiff which led to severe injuries, it was considered as an inevitable accident and it was held that the
defendant was not liable. The case which is known as Nitroglycerine case, the defendant were taking the wooden box from one place to another place they were not known about what was in the box, later on the box started outflow then for examining the wooden box they took it to their office, where they get to know that the box was filled up with nitroglycerine, which suddenly exploded which led to the damage in the premises of the plaintiff, later on the court stated that it was an inevitable accident as could not be predicted and defendants were not liable. In Oriental Fire & General Ins. Co. Ltd. v. Raj Rani 3in this case the drive owner and driver were going somewhere in the middle abruptly the front right spring and other parts of the truck busted up and the driver lost all control which led the track to collided with tractor which was coming from the opposite side, later in the case the driver and the owner were failed in proving that they had taken all necessary precautions. The court held that it comes under negligence and has no relation with inevitable accident and defendants were held liable.
- Act of God : The Act of God and Inevitable Accident may seem similar but they are different, its basically a sort of inevitable accident in which the major role player is nature and led to the damage such as storms, tsunamis, heavy rainfall, tides etc. The vital elements to come under the Act of God are (1) Natural players or working of the nature should be there. (2) There has to be an extraordinary happening which could not predicted or foreseen and cautious fairly. In the case of Ramalinga Nadar v. Narayan Reddiar in this case the boisterous crime syndicate robbed out all the goods and items transported in the defendant’s truck, it is not an Act of God and the defendant is common carrier has to compensate for the damages. In the case of Nichols v. Marsland, Marsland made an artificial lake in his premises by getting the water from the natural ways but thee was a day when one of the most heaviest rainfall took place which led to annihilation of embankment of the lake that resulted in to the washed away all the 4 four bridges of the plaintiff, in this the court held that it was an Act of God and defendants were not liable. In the case of Kallu Lal v. Hemchand, there was a building whose wall wall was fallen down because of the rainfall of 2.66 inches but the falling of wall led to the death of the child of the plaintiff, in this the court said that it will not come under Act of God as the rainfall was normal it was not extraordinary and defendant were held liable.
- Private Defence : Private Defence mechanism provides the right to individual to use adequate amount of force in order to protect his property and himself but while applying private defence there are certain things to keep in mind which are : The force used can only considered for the purpose of self defence; There must be serious menace to an individual’s life and property. In case of property, the law only permits to necessary measures to protect property. In the case of Ramanuja Mudali v. M. Gangan, in this case the owner of the land settled up the network of electric wire which were having current, when the plaintiff about to reach his place he tried to cross it from the defendant’s land as he reached he received electric shock which led to severe injuries, another thing was the defendant didn’t put any caution notice about the wires, the court held the defendant liable in the case. In the case of Collins v. Renison in the case the
appellant took the ladder to the respondent’s garden in order to put up a board in the wall by nailing but the defendant threw out the ladder, in the court he said he just gently push the ladder he didn’t want to threw it out but the court held that the force used was inadequate and was not justifiable in eyes of law.
- Mistake ( Mistake of Law and Mistake of Fact) : Mistake is basically an omission in general but in law mistakes are of two types, (1) Mistake of Law and (2) Mistake of Fact. In both scenarios defendant cannot avail the defence but if his act comes under the believe which is mistaken then he might avail it and free himself from the liability. In the case of Morrison v. Rithchie & Co in this case the respondent published a mistaken statement but in good faith which says that Morrison has given birth to twins but the thing was that Morrison got married two moths before. In this the court held the defendant liable for defaming the plaintiff and element of good faith has no value in such cases. In the case of Consolidated Company v. Curtis, in this case the individual was auctioneer by profession so he auctioned some goods that belongs to his customer he thought that goods were owned by him, but the owner of the goods filed a case against the auctioneer later the court held the auctioneer liable and also stated that mistake of fact is not defence is such cases.
- Necessity : when a conduct is to be done in order to forbid bigger harm, even in these acts there’s intention yet it is not unjust and it can be used as good defence. It has to differentiated from private defence and inevitable accident by point, (1) In necessity the enforcement of harm is on the guiltless individual but in case of private defence the appellant is the one who committed the tort. (2) In this the harm or the conduct has took place by the intention whereas in the inevitable accidents the harm took place even after taking all necessary precautions and measures to prevent such accident. In the case of Leigh v. Gladstone, 4 in this the prisoner went on to hunger strike but the defendant uses his force to feed the prisoner, so later the defendant get the defence for tort of battery as he was doing it to prevent bigger harm. In the case of Cope v. Sharpe in this case the individual named Sharpe entered in to premises of plaintiff with an intention to stop the spread of fire in the conterminous land in which his master owned the shooting rights, later the court held that he was not liable for trespass as his conduct was to prevent the bigger harm.
- Statutory Authority : Any act done by statute or any act authorized by the statute is not unjust even if it comes under ambit to establish a tort, it is a defence which is complete in itself and the party who suffered can only claim damages if given by the authority. In the case of Vaughan v. Taff Valde Rail co. In this defendant railway’s company’s engine was given authority to run the railways, they fired up the plaintiff on the abutting portion, so it was held that they did not do any conduct which was forbidden so there were not liable. In the case of Smith v. London and South Western Railway Co. In this case the workers in the railway company left the appurtenance fencing near the railway line. The flicker from the engine set on to fire to the fences ans because of the high winds, it got dispersed to appellant’s cottage which was near the railway line. In this court held that railway authority was held liable as it was happened because of their negligence
only and the appellant was entitled to claim the compensation for damages he suffered. As we know that the authority provided by the state are of two types : Absolute and Conditional. In absolute authority no liability exists even in case of nuisance but in case of Conditional authority then it is possible without happening of nuisance or any other harm. In the case of Metropolitan Asylum District v. Hil 5 in this case the plaintiff were given permission to establish a smallpox hospital, but location of the hospital was residential which was threatening for the living as the disease may spread among the people, taking it as a nuisance there was an injunction issued against the hospital, here the the authority was conditional.
CONCLUSION : The conclusion is this the understanding of tort is necessary to have application of tort will helpful in the implication of the general defence otherwise it is not possible to apply the general defence in order to get free from the liability coming out of the tort committed. Even in a situation where the plaintiff has proven all the vital elements that constitute tort then with correct and adequate application of general defence one can escape from the liability.