General Defences in Tort to Avoid Tortious Liability & Case Laws

General defences in Tort are usually available to tortfeasors (defendant) by virtue of facts & circumstances. Upon bringing a lawsuit by plaintiff, the defendant is usually held liable for a tort committed by him, provided there exists all the essential ingredients required for the wrong. 

However, the jurisprudence offers certain defenses to the defendant that can help him steer clear of the liability. These defenses in broader sense are known as ‘General defenses’ in the law of tort.

Volenti non fit Injuria, Plaintiff the Wrongdoer, Inevitable Accident, Act of God, Private Defense, Mistake of Fact, Act of state, Judicial Acts, Quasi-judicial acts, Executive acts, Acts under statutory authority (Acts authorized by statute), Acts under parental or quasi-parental authority, Exercise of Common rights, Necessity, Authorities of necessity and Acts causing slight harm, are the general defenses available in tort.

Below are some of the major defenses discussed with examples and case laws.

1. Volenti non fit Injuria- The Consent Based General defences in Tort 

Volenti non fit Injuria is also termed as ‘Leave and Licence’. Literal meaning of ‘Volenti non fit Injuria’ is that “if the suffering is willing, no injury is done”. There could be many instances where we have to waive or abandon our rights for no-claims at later stage.

In the spirit of the maxim, no man can enforce a right which he has voluntarily waived/abandoned. Most common example could be the injuries sustained in lawful games or sports or surgical operations. For this defense to be available, some essentials are to be present: a) consent must be free b) act must be lawful and c) The plaintiff knew that risk is there and d) he, knowing the same, agreed to suffer the harm.

For further clarity, a valid consent (for waiver of rights) could either be express or implied- In the former instance, the plaintiff must have expressly stated his/her consent. For example: a person going for scuba diving, signs a consent form.

In the latter instances, the plaintiff must have consented by way of his action or conduct. For example:  Two boxing players before entering the game deemed to have given their implied consent for probable injuries. Defense of Volenti Non fit Injuria makes one of the potent general defences in Tort.

RELEVANT CASE LAWS:

(i) Wooldrige v. Sumner:  In this case the plaintiff was taking some pictures standing at the boundary of the arena. The defendant’s horse galloped at the plaintiff due to which he got frightened and fell into the horse’s course and was seriously injured. The defendants were not held liable in this case as the plaintiff was risking himself voluntarily.

(ii) Illot v. Wilkes– In this case the plaintiff a trespasser, got injured due to spring guns present on the defendant’s land. He knowingly undertook the risk and then suffered injuries for the same. This was not actionable and the defendant was not liable in the case.

Exceptions to this Defense (Where it won’t apply)

(a) It won’t apply to the game or sports or the operations banned by law.

(b)It will not apply to the consent obtained by fraud, misrepresentation, mistake, compulsion, coercion, mere knowledge and undue influence.

(c)Negligence of defendant

(d)Rescue Cases

(e) Negligence Liability under Unfair Contract Terms Act, 1977 (England)

RELEVANT CASE LAWS & EXAMPLES (FOR EXCEPTIONS)

(i)Boxing with open fists without using gloves, duel with poisonous swords and the activities of the kind are legally prohibited. In such cases this maxim will not apply. The injury may be sustained by the persons who are participating in the games or by the spectators or by third parties.

(ii) In  ‘R. v. Wiliams’ case a music teacher obtained the consent from his pupil by inducement to improve her voice and seduced her. It was held that Music teacher was liable for harm caused. It is an example of Consent obtained by fraud.

(iii) A master-servant relationship is of the nature where the servant is compelled to do everything that his master asks him to do. In such scenario, there is no applicability of Volenti non fit injuria, as the servant is compelled to do some work without his own will. In fact, in all the instances, where the person giving consent does not have full freedom to decide, the maxim will not apply. It is an example of consent by compulsion.

(iv) In ‘Smith v. Baker’ case, the plaintiff was employed by a railway company to drill holes in a rock. Only nearby a crane was being operated by men employed by the railway company as well. The crane lifted stones and at times swung them over the plaintiff’s head without warning. The plaintiff was aware of the danger that he was exposed to by working near the crane. One time, a stone fell off the crane and injured the plaintiff. He sued his employers for negligence and the court held that mere knowledge of risk does not mean that he has consented to risk, so, the defendants were liable for this. This is an ideal example of consent by mere knowledge is no consent.

(v) A patient ‘P’ consents to a surgical operation and the same becomes unsuccessful then the patient has no right to file a suit against surgeon ‘S’. However, if the same becomes unsuccessful due to the surgeon’s negligence as a material fact, then in such case the patient ‘P’ will be entitled to claim compensation from Surgeon ‘S’. Such instances where ‘Negligence of the defendant’ is a material fact ‘Volenti non fit injuria’ will not apply.

(vi) In ‘Haynes v. Harwood’ case, the defendants’ servant left two unattended horses in a public street. A boy threw a stone on the horses due to which they bolted and created danger for other people on the road. So, a constable came forward to protect them and suffered injuries while doing so. This being a rescue case; so the defence of Volenti non fit injuria was not available and the defendants were held liable.

(vii) The maxim as defense will not apply in the instances of limitations posed by The Unfair Contract Terms Act (UCTA) 1977. The UCTA regulates mainly business contracts by limiting the extent to which one party can avoid liability through use of exclusion clauses such as disclaimers. Subsection 1, 2 & 3 of section 2 of UCTA, limits the right of a person to exclude his liability resulting from his negligence in a contract. Depending on the obligation that the contract excludes, the Act renders the exclusion term void, or only enforceable if “reasonable”.

Sub-section 1 of UCTA puts an absolute ban on a person’s right to exclude his liability for death or personal injury resulting from the negligence. Sub-section 2 provides for avoiding liability for the cases involving damages other than personal injury or death based on reasonability criteria of contract term or notice. Sub-section 3 provides for avoiding defendant’s liability on proof of the genuineness of the voluntary assumption and plaintiff’s consent.

2. Statutory Authority- One of the General Defences in Tort for State

If an act was authorized to be undertaken under a statute and the act resulted in harm someone then it is not actionable. Complete immunity, however is available only when the authority conferred upon executing agency was absolute in nature. If the authority conferred upon is conditional in nature the party suffered stands eligible for remedy. Further, when it comes to the nature of statutory permission to undertake any activity, facts and circumstances of the harms are sometimes major determinant for the degree of immunity. The defense of Statutory Authority makes one of the vital general defences in Tort.

CASE LAWS

Hammer Smith Rail Co. v. Brand– In this case, the value of the property of the plaintiff depreciated due to the loud noise and vibrations arising out of the running trains over the railway line. The construction of railways was undertaken by being empowered through statutory provisions. The court held that no compensation was eligible for the damage suffered as the construction was empowered by the absolute statutory provisions. Accordingly, the defendant was held not liable in the proceedings of court.

Smith v. London and South Western Railway Company– The Workmen, employed under defendant railway company cut the grass and bushes close to railways and placed the trimmed bushes near the line. The trimmings were lying there for fourteen days during hot weather. Sparking fire from a passing engine set the trimming on fire. And, these burning bushes were carried by a high wind across a public road which burned the plaintiff’s goods in a cottage about 200 yards away. It was held that there was negligence on the part of defendant so although the railway company was not strictly liable but claimant was eligible for compensation.

There is another dimension to the defense of statutory authority as well that needs differentiating the acts Sovereign one from Non-Sovereign. The acts causing harm if qualify as sovereign will lead into no remedy but if the acts causing harm qualify as non-sovereign, will create liability for the state. Execution of public welfare, national security, public emergency measures, wars etc would qualify as Sovereign functions of the state while the others may not.

When the Torts by govt servants classify as sovereign functions, the immunity to the govt. or govt servant is available as per the principle of “Rex Non Postest Peccare” (the king can do no wrong).  In case of non-sovereign acts of the govt servants causing harm, the remedy lies in the court as per the doctrine of vicarious liablity.

Distinction between Sovereign and non- Sovereign acts were first time made in the judgement of Peninsular and Oriental Steam Navigation Company v. Secretary of State for India, 1961 or famously known as P&O Steam Navigation Company v. Secretary of State case.

Present position on the torts by govt. servant is governed by judgment of State of Rajasthan v. Vidyawati, 1962 wherein, the Hon’ble Supreme Court held “Act done in the course of employment but not in connection with sovereign powers of the State, State like any other employer is vicariously liable.”

3. Plaintiff the Wrongdoer- The General defences in Tort Against Dirty Hands

A defendant can take plea that the plaintiff is a wrongdoer and the lawsuit brought in against him is inspired by malice or malafides. Meaning, if the plaintiff himself is into some wrongful act it would lead to general defence in favour of defendant. Under the law of contract one of the principles is that ‘no court will help a person who found his cause of action upon an immoral or an illegal act’. The maxim Plaintiff the wrongdoer is based on the principle of “Ex turpi causa non oritur actio” which means from an immoral cause no action arises.

For example: Suppose plaintiff is walking along the wrong side of the road and he meets an accident then he cannot file a suit against another person because he himself on wrong side.

Defense of Plaintiff the Wrongdoer makes one of the potent general defences in Tort.

CASE LAW:

In ‘Pitts v. Hunt’ case– There was a rider who was 18 years of age. He encouraged his friend who was mere 16 years old to drive fast under drunken conditions. Unfortunately, their motorcycle met with an accident, the driver died on the spot. The pillion rider suffered serious injuries and filed a suit for claiming compensation from the relatives of the deceased person. This plea was rejected as he himself was the wrongdoer in this case.

4. Inevitable Accident- A General Defense Validating Man’s Capacity

Certain incidents cannot be avoided by a man of general prudence and intellect. These incidents are normally unintentional in nature precisely termed as Inevitable accidents. An accident refers to an unexpected injury and if the same accident could not have been stopped or avoided in spite of taking all due care and precautions on the part of the defendant, then we call it an inevitable accident. It serves as a good defence as the defendant could show that the injury could not be stopped even after taking all the precautions and there was no intent to harm the plaintiff. Defense of Inevitable Accident makes one of the vital general defences in Tort

Example: A person ‘A’ throws a stone to a hanging apple but it misses its target and hits to someone ‘B’ who suddenly walks under the apple tree. In this case, A can take defence of ‘Inevitable Act’

CASE LAWS:

(i) Brown v. Kendal (Fighting Dogs) case: In this case the dogs of P and D were, fighting. D was beating with a stick to separate them. P was the onlooker. Accidentally D hit P in the eye resulting in a serious injury. It was held: D was not liable as there was no negligence. The hit was inevitable and could not be prevented.

(ii)In Stanley v. Powell case, the plaintiff and the defendant both and went to a pheasant shooting. The defendant fired at a pheasant but the bullet after rebounding from an oak tree hit the plaintiff and he suffered serious injuries. The court viewed the incident as an inevitable accident and the defendant was not liable in this case.

(iii) In Shridhar Tiwari v. U.P. State Road Transport Corporation case, a bus of U.P.S.R.T.C. reached near a village where a cyclist suddenly came in front of the bus. It was heavily raining at the time and even after applying breaks the bus driver could not stop the bus as a result of this, the rear portion of the bus hit another bus. It was discovered that there was no negligence on the part of both the drivers and they tried their best in avoiding the accident. This was held to be a case of inevitable accident. The defendant i.e. U.P.S.R.T.C. was held not liable for this act.

5. Act of God (Vis Major)- A General Defense Dwarfing Man

An act of God is defined as a direct, sudden, insanely violent, natural, and irresistible act of nature, the one which could not by any amount of care have been foreseen, or if it was foreseen, could not be avoided by any amount of care by any individual. Two important essentials are needed for this defence: a) there must be working of natural forces and b) the occurrence must be extraordinary and not one which could be anticipated and reasonably guarded against. The defense of ‘Act of God’ and ‘Inevitable accident’ might look the same but they are different. Act of God is a kind of inevitable accident in which the natural forces play their role and causes damage. For example, heavy rainfall, storms, tides, etc. Defense of Act of God makes one of the vital general defences in Tort.

CASE LAW:

(i)In Nichols v. Marsland case, the defendant created an artificial lake on his land by collecting water from natural streams. Once there was an extraordinary rainfall, heaviest in human memory. The embankments of the lake got destroyed and washed away all the four bridges belonging to the plaintiff. The court held that the defendants were not liable as the same was due to the Act of God.

(ii) In Ramalinga Nadar v. Narayan Reddiar case, the unruly mob robbed all the goods transported in the defendant’s lorry. The Court held that the criminal activities of the unruly mob which robbed the goods transported in the defendant’s lorry cannot certainly be an act of God so as to absolve the defendant from absolute liability as a common carrier. Accordingly, the defendant was held answerable for the loss of the goods.

6. Mistake of Facts: The General Defences in Tort Based on ‘Ignorantia Facti Excusat’ 

Defense of Mistake of Facts makes one of the vital general defences in Tort. It is based on popular maxim: “Ignorantia Facti Excusat, Ignorantia Juris Non-excusat”.

In general, mistake whether of fact or of law, is generally no defense to an action under tort. Mistake of fact however, can be a factor in reducing or eliminating civil liability or criminal culpability when used as defense provided the mistake is born of unconscious ignorance or genuinely mistaken belief but a person cannot escape civil or criminal liability for intentional mistakes.

Torts are dealt with differently from crimes especially, because they are largely uncodified (except consumer protection Act & Motor Vehicle Act) and are redressed by unliquidated damages. However, because certain torts qualify for both as torts and crimes, the defense provisions under Section 76 and 79 of codified IPC can be taken as benchmark to understand how mistake can be used as a defense or otherwise.

Section 76 provides that an act done by a person bound, or by mistake of fact believing himself bound, by law is no offence.

Defense in Tort Example: A police officer is being ordered by the Court to arrest Y. After due enquiry the officer believes Z to be Y and arrests Z. There is Tort committed in the process by police officer but he is eligible to take a defense of ‘mistake of fact believing himself bound by law’.

Section 79 provides that an act done by a person justified, or by mistake of fact believing himself justified by law is no offence.

Defense in Tort Example: ‘A’ sees ‘Z’ committing murder of someone. As law gives power to everyone to apprehend murderers, to the best of his judgment taken in good faith seizes ‘Z’ and handover to the proper authorities. Later, it turns out that ‘Z’ was acting in self defense. In this case although a wrong/tort is committed by ‘A’ he can take defense of ‘Mistake of facts believing himself justified by law’

CASE LAW:

State of Orrisa v. Khora Ghasi– In this case, the defendant while guarding his field shot an arrow on the moving object in a good faith that it was a bear, but the shot results in the death of a person. He was given the immunity under the mistake of fact.

Intention is Irrelevant in Torts (of Course, it matters in Crimes)

Example: Crossing over someone’s land property without an ulterior motive, taking away someone’s shoes thinking that to be one’s own, injuring the reputation of another without any intention to defame are the torts the defence of mistake cannot be taken.

CASE LAW:

In Consolidated Co. v. Curtis (1894), an auctioneer was asked to auction certain goods by his customer. Honestly believing that the goods belonged to the customer he auctioned them and he paid the sale proceeds to the customer. It turned out later that the goods belonged to the other person. In an action brought in by the actual owner, the auctioneer was held liable for a tort of conversion.

Mistake is not a Defense to a Strict Liability Offense

Example: Rahul runs a liquor store and stays in a state where the sale of alcohol to minors is a strict liability offense. He does his best to check identification whenever selling alcohol at his store. Monu age 17, presents Rahul with a convincing fake I.D. and otherwise appears to be over 18. Just after leaving the store, Monu is held up by the police in possession of liquor. In this case, Rahul would be guilty of selling alcohol to a minor, even though he reasonably and honestly believed that Monu was old enough to purchase it.

Ignorance of Law is no Excuse:

Example 1: An Indian passport holder went to Dubai for vacations and while returning boarded off Mumbai International Passenger with 5 kg gold. The Customs Authorities arrested him in the offence of gold smuggling. The passenger pleaded ignorance but he still is penalized by the court. Basically, he cannot take defense of ‘Mistake of law’

Example 2: A has possession of a rifle without a licence. P, a policeman caught him. He pleaded for the defence of mistake of law i.e., he was unaware of the law. Here, A will not get any defence because it is assumed that every person knows the law of the land, he resides in.

CASE LAW

In Grant v. Borg (1982)– In this case, the person was charged under the Immigration Act 1971, for staying beyond the time limit by the leave. The liability was so fixed to the defendant as he cannot take the defence of mistake of law or ignorance of law.

Mistake of law only applies in very Limited Circumstances

There only certain instances where the defendant can take defense of ‘Mistake of law’ and it may include:

a) When the law has not been published;

b) When the defendant relied upon a law or statute that was later overturned or deemed unconstitutional;

c)When the defendant relied upon a judicial decision that was later overruled;

d)When the defendant relied upon an interpretation by an applicable official.

7. Exercise of Common Rights- The General Defences in Tort for Damnum sine Injuria

Underlying principle for this kind of defense provides that exercise of ordinary rights for a lawful purpose and in a lawful manner is no wrong even if it causes damage. The defense is backed by principle of ‘damnum sine injuria’ which lays down that men are free to seek their own advantage in the ordinary pursuit of business or use of property, even though a probable or intended result leads to diminish the profit or convenience of others.

In the spirit this very interpretation, competition in trade or business is, in itself, no cause of action, whatever damage it may cause.

Example1: Businessman ‘A’ sells shoes at no-profit prices to attract customers which causes financial harm to another businessman ‘B’ in his neighbourhood. This constitutes no tort in principle and ‘B’ cannot sue ‘A’.

Example 2: A farmer ‘F1’ removes large amount of soil from his land to make a large deep well which results in drying up his neighbour ‘F2’ well. The action by the former does not constitute an invasion of a legal right of the latter and will not sustain an action. There are judgements which suggest that even proof of malice will not improve the plaintiff’s position as the case again is backed by ‘damnum sine injuria’

Defense of Exercise of Common Rights makes one of the vital general defences in Tort.

CASE LAW:

In Gloucester Grammar School (1410) case, a schoolmaster, set-up a rival school adjoining to that of the plaintiff. Owing to the competition, the plaintiff had to lower their fees from 40 pence to 12 pence per quarter. Aggrieved by the situation, the plaintiff claimed for compensation from the defendants for the losses suffered. However, the court held that the plaintiff had no remedy for the losses suffered, since the act though morally wrong. has not violated any legal right of the plaintiff.

8. Necessity- The Lesser Evil’s General Defences in Tort

This defense lays that breaking of law out of overwhelming urgency should be allowed. The defense of necessity recognizes that there may be situations of such urgency that person may not have legal alternatives to violate the law and hence wrongs done even though with intention, should be excused. Necessity is a justification of warranted or encouraged conduct where the defendant is found not culpable.

Defense of Necessity is based on the maxim salus populi suprema lex, i.e. ‘the welfare of the people is the supreme law’. Under such defenses a defendant argues that he committed the crime in order to avoid a greater evil (in public interest) created by circumstances beyond his control. Necessity is an affirmative defense that a defendant invokes against the torts of trespass to chattels, trespass to land or conversion. In private interest this defense cannot apply as a rule but in public interest it is a good general defense in Torts.

To avail this defense, defendants must need four elements to meet.

• Defendant was reduced to choose between two evils and hence chose the lesser evil.
• Defendant acted to prevent imminent harm.
• Defendant reasonably anticipated a direct causal relationship between his conduct and the harm to be averted.
• Defendant had no legal alternatives to violate the law. 

The defense of Necessity makes one of the vital general defences in Tort.

CASE LAWS:

Regina v. Dudley and Stephens (1884) – This is one of the early trials wherein it was held that the defense of necessity could not be applied. [*Regina stands for Queen Elizabeth R.]

Facts of the case: For almost 20 days Dudley and Stephens along with Brooks and Parker(victim) were cast away at sea without weeks of food and water. After struggling 20 days for food and water, Dudley and Stephens proposed one person sacrifice himself in order to save the rest. Brooks dissented while Dudley and Stephens decided to kill Parker since he was the weakest. Seeing no rescue in sight, the two men killed Parker and the three men feasted on Parker’s body. Four days later a vessel rescued them and Dudley and Stephens were put to proceedings. Issue involving was that whether the killing of Parker was an admissible defense of necessity or it was an offense of murder.

What was held: Killing of Parker is a murder; Stephens and Dudley to be sentenced to death. The necessity of hunger does not justify larceny, let alone murder. Stephens and Dudley chose the weakest and youngest. They were tempted by hunger to kill Parker but that urgency itself is not an excuse for murdering him. Accordingly, their unfortunate circumstances also do not lend leniency to the legal definition of murder.

Leigh v. Gladstone– In this case a woman was forcibly fed while she was a hunger striking prisoner, the defendant was allowed to take the defense of necessity against the action of battery (trespass to person).

Cope v. Sharpe- In this case, the defendant had entered the plaintiff’s land in order to stop the spread of fire to an adjoining land (trespass to land), therefore the above defence was allowed here as it was considered to have been done to put an end to an imminent danger.

Carter v. Thomas– In this case, the defendant entered the plaintiff’s land premises (Trespass) to extinguish the fire, at which the fire extinguishing workmen were already working, was held guilty of the offence of trespass.

Kirk V Gregory– In this case sister-in-law removed jewellery from an unlocked box and she kept those jewellery in another unlocked box and the jewellery was stolen. The issue involved as to her being Liable or not? And was it necessary to remove that jewellery? It was held that she was liable. Reasoning given that she should have kept the jewellery under lock and that, it was not done out situations demanding the removal necessary.

9. Private Defense- The Individuals’ General Defences in Tort

The law permits using reasonable force to protect one’s life and property and while exercising such force if any wrong is committed, no remedy lies against the wrong doer. On the similar lines, for the protection of property, the law also permits taking such measures which are necessary to prevent the harm to personal property. Defense that can be taken of such nature classify as Private Defense.  The Private Defense  makes one of the important general defenses in Torts.

For the private defense to be available to the defendant following elements needs to be met with:

The use of force is justified only for the purpose of self-defense.

There should be an imminent threat to a person’s life or property.

The force used must be reasonable and to repel an imminent danger.

Illustrations (i) A would not be justified in using force against B just because he believes that someday he will be attacked by B. [There is no imminent danger]

(ii)if A tried to commit a robbery in the house of B and B just drew his sword and chopped A’s head, the act of B cannot be defended using a private defense.

CASE LAWS:

Ramanuja Mudali v. M. Gangan– In this case the defendant, a landowner had laid a network of live wires on his land without displaying any notice about. The plaintiff in order to reach his own land tried to cross defendant’s land in the night. The plaintiff received a shock and sustained serious injuries due to the live wire. It was held that the act of defendant is not justified and accordingly the defendant was held liable.

Bird v. Holbrook– In this case the defendant installed some spring guns in his garden without displaying any notice regarding the same and the plaintiff who was a trespasser suffered injuries due to automatic discharge of spring guns. It was held that the act of the defendant is not justified and the plaintiff is entitled to get compensation for the injuries suffered.

Collins v. Renison– In this case the plaintiff went up a ladder for nailing a board on a wall in the defendant’s garden [trespass]. The defendant pushed the ladder off the wall. The plea taken by the defendant was that he just gently pushed off the ladder and nothing else. It was held that the manner and nature of force used was not justified under the private defense for property.

Speak your mind in comment section as to which general defences in Tort, you believe to be most potent.

FAQ Under General Defenses in Tort

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