General Defenses – 8 Defense against Tortious Liability

    General Defences under Torts are those defenses that are used to escape liability in case of torts committed. The following are the defense that include the plaintiff’s actions-

    Volenti Non Fit Injuria- ‘Consent’

    Volenti non fit injuria in Latin means “to a willing person, no injury is done.” In this defense, the burden comes on the consent of the plaintiff. If the plaintiff is known to give his consent for the risk and its consequence, he cannot claim legal remedy for the act of the Defendant that might have caused him some harm. This is because when the plaintiff gives his consent, either which he has implied or expressed, he is said to have voluntarily agreed to suffer some harm. 

    Consent can either be implied or expressed.

    1. Implied Consent is when it can be assumed from the action of a person that he has consented to something. It is believed, by a reasonable person, that even though the person has not given his consent in writing or verbally, it can be presumed that they have given their consent for the event or action.
    2. Expressed Consent is permission for something given specifically, either verbally or in writing. 

    With expressed consent, the terms and situation of the consent are clear but with implied consent, only an assumption can be made that the consent for the specific act or event is given. Expressed consent contrasts with implied consent. Implied consent can be given by actions or conduct of a person which makes the other person believe that agreement is given.

    Through his consent, the Plaintiff waives off his rights to legal remedy. No man can enforce a right which he has voluntarily waived or abandoned.

    Under circumstances where the plaintiff voluntarily puts himself in a situation where his consent can be assumed. The condition however is that consent has to be free. Even if a person agrees to do something but it is influenced by fraud or any other kind of force by another party, it will not be considered free consent. In this case, the party can go for legal remedy as his action or conduct will not come under the defense of Volenti Non Fit Injuria. 

    Consent will not be free consent if it is obtained by-

    1. Coercion
    2. The Pressure of Undue Influence
    3. Fraud
    4. Misrepresentation
    5. Mistake

    In the case of R v. Williams [1923] 1 KB 340, the defendant was a singing teacher who had convinced his 16-year-old student to let him do an act to help the student improve her singing. He suggested sexual intercourse and in fact convinced her it will help her improve. He was charged with rape. Although the plaintiff had consented to the act, this was negated by fraud, and the Defendant was held liable.

    The consent can be considered so if the following conditions are satisfied-

    The plaintiff was aware of the risk

    They, knowing the same, agreed to suffer the harm

    The plaintiff has be to be aware of the risk that might occur. But on the basis of just the knowledge of the risk doesn’t mean that he has consented to suffer the harm that would come from the consequences. So, mere knowledge of the risk is not enough. This comes from the Latin Maxim of Scienti non fit injuria. There should be an agreement to suffer the risk of the same. Just because the plaintiff knows of the harm does not imply that he assents to suffer it.

    In the case of Lakshmi Rajan v. Malar Hospital (1998) a woman consented to get a lump removed from her breast but the hospital removed her uterus without any genuine reason. Because of the reason that the hospital acted beyond what was consented, the hospital will suffer a liability. 

    Some exceptions to Volenti Non Fit Injuria:

    • Rescue Cases (Haynes v. Harwood)
    • Illegal Acts
    • Negligence of the defendant (Slater v. Clay Cros Co. Ltd. 1956] 2 QB 264)

    Cases-  

    1. Hall v. Brooklands Auto Racing Club [ (1932) All E.R Rep. 208
    2. R v. Williams [1923] 1 KB 340
    3. Lakshmi Rajan v. Malar Hospital (1998)
    4. Smith v. Baker [(1891) A.C 325]
    5. Padmavati v Dugganika
    6. Haynes v. Harwood (1935), 1 KB 146
    7. Slater v. Clay Cros Co. Ltd. 1956] 2 QB 264

    Plaintiff, the wrongdoer

    The plaintiff does not get the right to legal remedy when the act of the plaintiff themself makes him the wrongdoer. If the act of the plaintiff is illegal or wrong, they will be considered a wrongdoer. This comes from the Latin maxim “ex turpi causa non oritur action” which means “No action arises from an immoral cause”. 

    In establishing the plaintiff as the wrongdoer, it is required that the harm suffered by him should be connected to the tort or the unlawful activity he has conducted. The harm should not exceed the tort committed. For example, if someone has trespassed into a house and the owner of the house turns to shooting them then the harm they suffer for their actions is bigger than the act of tort itself. In the case of Bird v Holbrook [ (1828) 4 Bing. 628], The defendant owned a tulip garden a mile from his home. After a robbery happened in his tulip garden, the defendant set up a spring gun to guard against trespassers in the garden. No notice of the spring gun was posted in the garden. The Plaintiff, a nineteen-year-old boy, innocently entered the Defendant’s garden to chase after an escaped pea fowl. He did not know the spring gun was there and accidentally set it off. The Plaintiff suffered a severe wound above his knee and brought suit against Holbrook to recover for his injuries. It was held that “One who sets spring gun trap for the purpose of catching an intruder without posting a notice is liable for damages.” In this case, Defendant placed the spring gun trap for the purpose of doing injury and not for warning.

    https://legalreadings.com/overview-noise-pollution-rule-2000/

    Case- 

    1. Bird v Holbrook [ (1828) 4 Bing. 628]

    The following are the defenses based on Force majeure-

    Inevitable accident

    It is any kind of occurance which cannot be foreseen or avoided in spite of reasonable care on the part of the defendant. 

    In Stanley v Powell [1891] 1 QB 86 (QBD)] the defendant fired at a pheasant however one of his pellets glanced off a tree and accidentally wounded the plaintiff. The jury held that injury was accidental and therefore the defence of inevitable accident was available and the defendant had not been negligent.

    Cases-

    • Nitro-Glycerine Case
    • Stanley v Powell [1891] 1 QB 86 (QBD)]
    • S. Vedantacharya v. Highways Department of South Arcot (1987 ACJ 783)

    Act of God

    The Latin maxim this is based on is Vis Major which means the ‘Superior Force’. Vis Major is a part of Force Majeur (French term that means “greater force.”) which means an event or effect that can be neither anticipated nor controlled. There are many events that can come under Force Majeur and act of god is a part of those. Force Majeur also includes human actions. 

    Two essential elements of Act of God are:

    1. Event over which the defendant has no control
    2. Damage is caused by the forces of nature

    In cases where the defendant has no control over the situation or the occurrence of the act and the damages are caused by the force of nature that includes the Act of God. In such a case, the defendant will not be liable. 

    Difference between Act of God and inevitable accident is that-

    In this the loss arises out of the working of natural forces like exceptionally heavy rainfall, storms, tempest, tides, and volcanic eruptions.

     

    Two important essentials are needed for this defense:

    1. There must be working of natural forces
    2. The occurrence must be extraordinary and not one which could be anticipated and reasonably guarded against.

    In the case of Ramalinga Nadar v. Narayana Reddiar (AIR 1971 Ker 197), the plaintiff had contracted with the defendant for transportation of goods. The goods were looted by a mob, the prevention of which was beyond control of defendant. It was held that every event beyond control of the defendant cannot be said Act of God. 

    In the case of Nichols v. Marshland [(1876) 2 EXD 1] The defendant diverted a natural stream on his land to create artificial lakes. Record breaking, exceptionally heavy rain caused the artificial lake to be flooded and damaged adjoining land. The defendant was held not liable under Rylands v Fletcher as the cause of the flood was an act of God.

    Cases-

    • Ramalinga Nadar v. Narayana Reddiar (AIR 1971 Ker 197)
    • Nichols v. Marshland [ (1876) 2 EXD 1]
    • Rylands v Fletcher

    The following are the defenses that include the defendant’s actions-

    Private defense

    When a defendant tries to protect his body or property or any other person’s property, harms another person by using reasonable force, under an imminent-danger and where there is no time to report instantly to the authority, it is Private defense. Private defense can be described as the use of reasonable force to protect one’s person or other people or property.

    To use this defense, three conditions need to be satisfied-

    1. There should be a direct threat to personal safety or property.
    2. The force used should be absolutely necessary to repel the invasion.
    3. The force used by the defendant should be in proportion to the act committed and enough to ward off the imminent danger. It should not be excessive and must not be out of proportion to the apparent urgency of the occasion.

    In the case of Ramanuja Mudali v. M. Gangan [AIR 1984 Mad 103], the defendant (a landowner) had put a bunch of live wires on his land. The plaintiff, to reach his own property, tried to cross the land. He received a shock from the live wires and sustained some serious injuries. There was no notice regarding it. The defendant was held liable in this case and the use of live wires is not justified in the case.

    Cases- 

    1. Ramanuja Mudali v. M. Gangan[AIR 1984 Mad 103]

    Mistake

    Mistake of law and Mistake of Fact are two types of mistakes. However, there are not very strong defenses of Torts.

    In the case of Consolidated Co. v. Curtis [(1894) 1 Q.B. 495] an auctioneer auctioned some goods for a customer A, believing that the goods belonged to the customer A. But then the true owner of the goods (B) filed a suit against the auctioneer. The court held auctioneer liable and mentioned that the mistake of fact is not a defence that can be pleaded here.

    In the case of R v. William [[1987] 3 All ER 411; (1987) 78 Cr App R 276], the court held that a mistake of fact can be a successful defence regardless of whether the belief is reasonable or not.

    Cases-

    • Consolidated Co. v. Curtis [(1894) 1 Q.B. 495]
    • R v. William [[1987] 3 All ER 411; (1987) 78 Cr App R 276]

    Necessity

    Necessity is an action done in the prevention of greater harm. Any act done under necessity is said to have been done under a necessity to prevent a greater evil. 

    Difference between Private defense and Necessity

    In necessity, harm is done on an innocent person. In private defense, harm is caused to a plaintiff who himself is the wrongdoer.

    Difference between Necessity ( harm is an intended one) and Inevitable Accident (harm is done inspite of the best efforts to avoid it) 

    Cases- 

    • Leigh v Gladstone (1909) TLR 139
    • Cope v. Sharpe [(1891) 1 K.B. 496.]
    • Carter v. Thomas [(1891) Q.B. 673]

    Statutory Authority

    This is a complete defense. When an act is done, under the authority of an Act, it is called Statutory Authority.

    Compensation for the party– The injured party has no remedy except for claiming compensation as may have been provided by the statue.

    Statutory authority can be of 2 types-

    1. Absolute

    In absolute statutory authority, there is no legal remedy for the conduct of the government. 

    For example, in the case of a railway being built near some houses, the nuisance that can be caused cannot entertain any legal remedy as it is under absolute authority.

    1. Non-Absolute 

    In this, the nuisance that has been caused does allow legal remedy.

    For example, a misconduct done by a police officer can be entertained.

    Cases-

    • Smith v. London and South Western Railway Co. [(1870) L. R 6 C. P. 14.]
    • Vaughan v. Taff Valde Rail Co.

     CASES- 

    • R v. Williams [1923] 1 KB 340
    • Hall v. Brooklands Auto Racing Club [ (1932) All E.R Rep. 208
    • R v. Williams [1923] 1 KB 340
    • Lakshmi Rajan v. Malar Hospital (1998)
    • Smith v. Baker [(1891) A.C 325]
    • Padmavati v Dugganika
    • Haynes v. Harwood (1935), 1 KB 146
    • Slater v. Clay Cros Co. Ltd. 1956] 2 QB 264
    • Bird v Holbrook [ (1828) 4 Bing. 628]
    • Nitro-Glycerine Case
    • Stanley v Powell [1891] 1 QB 86 (QBD)]
    • S. Vedantacharya v. Highways Department of South Arcot (1987 ACJ 783)
    • Ramalinga Nadar v. Narayana Reddiar (AIR 1971 Ker 197)
    • Nichols v. Marshland [ (1876) 2 EXD 1]
    • Rylands v Fletcher
    • Ramanuja Mudali v. M. Gangan[AIR 1984 Mad 103]
    • Consolidated Co. v. Curtis [(1894) 1 Q.B. 495]
    • R v. William [[1987] 3 All ER 411; (1987) 78 Cr App R 276]
    • Leigh v Gladstone (1909) TLR 139
    • Cope v. Sharpe [(1891) 1 K.B. 496.]
    • Carter v. Thomas [(1891) Q.B. 673]
    • Smith v. London and South Western Railway Co. [(1870) L. R 6 C. P. 14.]
    • Vaughan v. Taff Valde Rail Co.

    BY MUSKAN NARANG | DY PATIL DEEMED TO BE UNIVERSITY

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