Pocket Notes

General Defences under Tort Law

Defence conventionally means those arguments which when used persuades the Court to conclude that the defendant in a case is not guilty. General defence under torts can be used in three ways:

  1. Absent Element Defences
    it is the denial of the commission of the torts or of the components which constitute a tort. It can be done by either denying a tort has been committed or by denying that the necessary components of torts have been committed.
  2. Affirmative Defences
    Here the verdict is in favour of the defendant even though all the ingredients of a tort are committed. A defendant who wishes to use this rule does not stay away from liability by denying the allegations being put on him but does so by going around it. Positive defence includes complete privilege, abuse of procedure, arrest, distress, honest opinion, immunity, limitation bars, necessity, qualified privilege, the recapture of land or chattels, res judicata and self-defence.
  3. Remedy Restricting Rules
    when a defence is used in this relation it encompasses the principle that limits the relief which is entitled to a plaintiff. Some remedy limiting rules cut back the plaintiff’s entitlement to damages, such as the provision for apportionment for contributory negligence and the doctrine of mitigation of damage. Others avoid the plaintiff from relishing particular remedies completely. Examples of the latter type of remedy limiting or restricting rule include the doctrines of laches and acquiescence. The law favours those who are vigilant and not those who slumber. However, it is important to remember that in this case the defendant is not absolved of liability like the previous two cases.

General Defences

  • Volenti Non Fit Injuria (Defence of Consent)
    If the plaintiff gives free consent to the wrongful act, expressly or impliedly, under no pressure of coercion or fraud, with voluntary acceptance of risk, then he has no right to sue the defendant. Also, there should be a duty on behalf of others.

Example: A person who goes to the stadium to attend a game, if gets hit by a ball then it is understood that he was well aware that such a situation can occur and voluntarily took the risk, hence, he risked himself knowingly and therefore, cannot claim damages.

  • When the plaintiff is the wrongdoer
    this principle is based on the legal maxim ex turpi causa non oritur actio that is if the plaintiff himself is conducting a wrongful act, then he cannot recover damages. But if a defendant proclaims that claimant himself or herself is the wrongdoer and not eligible or entitled to the damages, then it does not mean that the Court will declare him free from the liability.
  • Inevitable Accident
    Inevitable Accident is the act which could not be prevented despite taking any degree of care, caution, and skill by an ordinarily prudent man.

Case Law:
Stanley v. Powell- The plaintiff was employed to carry cartridge for a shooting party when they had gone pheasant-shooting. A member of the party fired at a distance but the bullet, after hitting a tree, rebounded into the plaintiff’s eye. When the plaintiff sued it was held that the defendant was not liable in the light of the circumstance of inevitable accident.

  • Act of God
    A very rare act or an event which is unusual, and is the result of the natural forces such as earthquakes, volcanic eruptions, floods, droughts, etc. is coined as Act of God or ‘Vis Major’. It is beyond human thoughts and could not be prevented by human intervention.
    Essentials: Act should be a result of natural forces, there should be no human intervention and the act should be extraordinary in nature.

Case Law:
Nichols v. Marshland- The defendant had a number of artificial lakes on his land. Unprecedented rain or rains that were not expected such as had never been witnessed inactive memory caused the banks of the lakes to burst and the escaping water carried away four bridges belonging to the plaintiff. It was held that the plaintiff’s bridges were swept by an Act of God and the defendant was not liable.

  • Act in relation to Private Defence
    When a defendant tries to protect his body or property or any other person’s body or property and in this course harms another person by using reasonable force, under an imminent-danger and where there is no sufficient time to report instantly to the public authority, it is Private Defence. The harm done should be proportional to the nature or degree of the danger.

Essentials: Imminent Danger and Proportional Force.

Case Law:
Bird and Holbrook- This case deals with the defence of protection of property. Holbrook, the defendant set up a spring-gun trap in his garden to catch an intruder who had been stealing from his garden. He did not post a warning. Bird, the petitioner chased an escaped bird into the garden and set off the trap, suffering serious damage to his knee. Bird sued Holbrook for damages. It was held that while setting traps or “man traps” can be valid as a deterrent when notice is also posted, the defendant’s intent was to injure someone rather than scare them off. Hence, he was held liable.

  • Mistake
    When an act is done under a mistaken belief in a said situation, the defendant can plead the defence of mistake. There are two types of mistakes:
  • Mistake of Law: Not a defence in the civil or criminal case.
  • Mistake of Fact: Not valid in torts.
  • Necessity

When to prevent a greater harm, the defendant causes lesser harm, it is justified in its nature. The act of the defendant may not be legal but if it is to avoid major damage then he can plead this defence.

Essentials: Act done to avoid significant harm and the caused harm should be justified.

Case Law:
Olga Tellis & Ors. v. Bombay Municipal Corporation- The State of Maharashtra in 1981 and the Bombay Municipal Corporation decided to evict the pavement dwellers and those who were residing in slums in Bombay. The eviction was to progress under Section 314 of the Bombay Municipal Corporation Act, 1888. The Supreme Court of India although refused to conclude that the expelled inhabitants were entitled to an alternative site, it ordered that:

  1. No one has the right to encroach on trails, sidewalks or any other place reserved for public purposes.
  2. The provision of Section 314 of the Bombay Municipality Act is not unreasonable in the circumstances of this case.
  3. Sites must be provided to censored residents in 1976.
  4. Slums existing for 20 years or more should not be removed unless the land is required for public purposes and, in this case, alternate sites must be provided.
  5. High priority should be given to resettlement.
  6. An act done in respect of Statutory Authority

If the act is done under the guidance of an authority or a law is passed by the legislation, then the injured person cannot claim damages from the defendant as he cannot be said to be liable for the damages resultant to the course of such an act.

Example: There is a railway track near your house and the noise disturbs you, you cannot claim damages as the construction and the use of the railways is authorized under a statute. However, the authorities cannot do anything they want; they must act in a reasonable manner.

Case Law:
Kasturi Lal v. State of UP- The plaintiff had been arrested by the police officers on a suspicion of possessing stolen property. On a search of his person, a large quantity of gold was found and was seized under the provisions of the Code of Criminal Procedure. Ultimately, he was free, but the gold was not handed as the Head Constable in charge of the Malkhana (wherein the said gold was stored) had absconded with the gold. The plaintiff thereupon brought a suit against the State of UP for damages for the loss caused to him. The Supreme Court rejected the claim of the plaintiff, on the ground that the act of negligence was committed by the police officers while they were dealing with the property of Ralia Ram (plaintiff), which they had seized in the exercise of their statutory powers.

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