LAW OF TORT - GENERAL DEFENCE

GENERAL DEFENCE

General Defence is a set of defences or "excuse" that you can undertake to escape liability in tort only if your actions have qualified a specific set of condition that go attached with these defences.

The general defences which are applicable to all torts. They are the following:

• Volenti non fit injuria
• Inevitable accident
• Act of God
• Mistake
• Private defence
• Necessity
• Statutory authority

VOLENTI NON FIT INJURIA

• The literal meaning of the maxim is that " to which a man consents, cannot be complained of as an injury".
• Volenti non fit injuria is an exception to liability in torts.
• It means, where the sufferer is willing, no injury is done.
• No act is actionable as a tort at the suit of a person who has expressly or impliedly assented to it.
• In order to plead this defence, it is necessary that the plaintiff should have consented to physical risk or damages as well as to legal risk (i.e he will get no remedy in law).

Essential conditions

• Consent must be given freely
• Consent must not have been given to an illegal act.
• Knowledge of risk is not the same thing as consent to run the risk.

Case law :  Smith V. Baker (1891): "one who has invited or assented to act being done toward him cannot when he suffers from it, complains of it as a wrong.

Morris V. Murray -  The defence of volens were applied :

The plaintiff accompanied the defendant on a flight in the defendant's light aircraft after an afternoon's drinking in which the defendant has consumed the equivalent of more than half a bottle of whisky and the plaintiff had full knowledge of the fact.

The appeal was allowed.

• The plaintiff willingly embarked on the flight knowing that the pilot was so drunk that he was unable to discharge his duty of care.
• The maxim Volenti non fit injuria applies as a defence to the plaintiff's claim.

INEVITABLE ACCIDENT

• Damage is said to be caused by an inevitable accident when it is not caused intentionally and could not possibly have been avoided by the exercise of ordinary care and caution on the part of him who caused it.
• In the words of Chief Justice Shaw of the Massachussets Supreme court:-    "Inevitable accident is an accident such as the defendant could not have avoided by the use of the kind and degree of care necessary to the exigency and in the circumstances he was placed."
• This category of tort arises when the defendant could not have avoided by the use of necessary care and precaution and emergency.

Case law: Nitroglycerine case:  There was a sudden unexpected explosion from a case containing Nitroglycerine, causing damage to the building rented by the defendant. The carriers were held not liable on the ground that it was an unexpected accident. In those days the highly - inflammatory nature of nitroglycerine was not well-known.

ACT OF GOD

• This defence is closely related to Inevitable accident.
• Inevitable accidents is no defence to the rule of strict liability laid down, but Act of God is a valid defence to the same.
• Act of God may be defined as an operation of natural forces so unexpected that no human foresight or skill could reasonably be expected to anticipate it"
• Result : The defendant ought not to be liable for an extraordinary act of nature which she could not reasonably anticipate.
• An Act of God is distinct from Inevitable accident.

Case law:  Nichols V. Marsland -  The defendant had constructed certain artificial lakes on her land by damming up a natural stream at a point higher up than the defendant's land. An extraordinary rainfall caused the stream and lakes to swell to such an extent that the artificial banks burst and the escaping water rushed on to the plaintiff's land and carried away four county bridges. The plaintiff sued on behalf of the county, contending that the defendant was liable.

Judgment: She ought not to be liable for an extraordinary act of nature which she could not reasonably anticipate. It was said that one is only bound to provide against the ordinary operation of nature, but not against her miracles.

MISTAKES

• Mistake of fact is a good defence in Criminal law.
• Generally, when a person is ignorant about the facts which might lead to be beneficial or in some circumstances mistake of fact might lead to damage. Such damage, if innocent is not actionable.
• IPC section 76 deals with any injury caused by Mistake of facts.

Case Law : Commonwealth V. Preeby  

Where a constable was charged with arresting a man unlawfully; it appeared that the man had fallen down in the street in a fit and his friends had tried to revive by giving whisky.  The constable was acquitted that the man smelt of whisky was insensible due to intoxication.

PRIVATE DEFENCE

Every person is entitled to use a reasonable amount of force for the protection of his person or property.

IPC Sec- 96 says, "Nothing is an offence which is done in exercise of the right of private defence".

Explanations of the act of private defence.

Ist - It not only applies to ones own property or body but also for the defendant.

IInd - The force used by the victim should be proportionate to the nature of threatened evil.

Case law : Cook V. Beal

A man cannot justify a maim of every assault, when A strikes B, B cannot justify the drawing of his sword and cutting off his hand; but it must be such an assault whereby probably his life may be in danger.                        

NECESSITY

If a man is compelled to do an act out of sheer necessity, he will not be liable for the injurious consequences of it to another, even if the said act has caused considerable damage to the latter.

Example: If a boat, fully loaded with rice bags, is caught in a storm in a wide lake far away from the shore, it is justifiable to throw the heavy rice bags into the depths of the waters of the lake to lighten the load of the boat and save it and he men in it.                                           

Case law: Cope  V.  Sharpe

 The act of burning one's neighbours' heather was held justifiable in order to prevent the spreading of fire to his hitting pheasants. The measures taken to prevent the threatened evil should however be reasonable.

STATUTORY AUTHORITY

A person cannot complaint of a wrong when it is authorized by the legislature.

And when statue specifically authorizes certain acts to be done by a certain person which would otherwise be illegal - No action will arise against that person.

It also extends to the consequences of such act.

Case law: Geddis V. Proprietors of Bann Reservoir

The defendants were authorized to secure a regular and proper supply of water to mill owners through a certain channel and for the purpose to erect and maintain drains, channels, ways. etc

On account of their neglect to clean the channel, water overflowed its banked and did damages to the adjoining lands. The defendants were held liable.

Now, it well established no action will lie for doing that which legislature has authorised if it be done without negligence and although it does occasion damage to anyone; but the action does lie for doing that which the legislature has authorized if it is done negligently.