GENERAL DEFENCES UNDER LAW OF TORTS
General Defences: Nature and Scope
A defence is a plea put forth by the defendant against the claims of the plaintiff. The following are the defences open to a defendant in an action for tortious liability.
- Volenti non-fit injuria.
- Inevitable accident.
- Act of God
- Private defence.
- Statutory authority.
Volenti non fit injuria (Also called leave and licence)
This means that “if the suffering is willing, no injury is done.” Accordingly harm or even grevious hurt may be inflicted on a person for which he has no remedy if he has consented to take the risk. To this group belong injuries sustained in lawful games or sports or surgical operations. The origin of this can be traced to the writings of Aristotle. Roman jurists had recognised it. Later Bracton explained it in his De Legibus Angliae. The modern meaning is confined to the injuries sustained by persons. Here the risk to which a person gives his consent is “the risk of an operation being unsuccessful”, similarly, in respect of injured but, if he is injured in a legal incident then, there is no injury because he has consented to the legal risk which is natural in such sports or events. The consent is not merely to the physical risk, but to the legal risk as well. Consent may be express or implied.
This maxim is subject to a number of exceptions :-
- The game or sports or the operations must not be one which is banned by law. Football, Cricket, Hockey etc. are lawful games. However, Boxing with open fists, duel with poisonous swords are legally prohibited. Similarly notoriously dangerous processes in, cinema shootings. In such cases the maxim does not apply. The’ injury may be sustained by the persons who are participating in the games or by the spectators or by third parties.
- Consent :- The consent must be free and voluntary. If consent is obtained by fraud it is no consent. In a case a music teacher obtained the consent from his pupil fraudulently to improve her voice and seduced her. Held : Music teacher was liable.
- Knowledge does not necessarily imply consent. The test of consent is objective, for the rule is not Scienti (Knowledge), but volenti non fit injuria. This is evident from two leading cases:
Thomas V. Quarter Maine :
In this case, Thomas, working in a Brewery, was removing the top roof of a boiling vat. But the lid came off suddenly and he fell into another vat containing scalding liquid and was injured. It was held that the damage was accidental to the legal act and hence the defendant was not liable. This was a wrong decision. The error was corrected in the leading cae :
Smith V. Baker :
In this case a crane was jibbing from one place to another. The plaintiff p had no notice of it but had the knowledge of jibbing work being carried on by D. He knew the possible risk, involved, but was not warned as to when the jibbing work commenced. A stone glanced off from the crane and hit P who was injured. The House of Lords held that D was liable : “Mere knowledge” was not sufficient according to the court.
- Negligence :- Cases of negligence are exceptions to the rule. In Dann V. Hamilton, P a lady passenger had knowledge that D who was driving a Taxi, was under the influence of drink. There was an accident due to negligence of the driver and P was injured. Held : D liable.
- Rescue cases :- In circumstances where a person goes out to rescue another, the maxim does not apply. The leading case is Haynes V. Harwood. In this case a policeman P darted out from his police station to stop a van, run by horses without a driver, in a crowded street. The defendant D had left the van unattended on the highway and the horse had bolted when some boys threw stones at the horse. The police-man went to rescue and to stop the horses, but was seriously injured in this process. Held : D liable.
Act of God
Act of God includes those consequences which are occasioned by elementary force of nature unconnected with the agency of man. Common examples of Act of God are the falling of a tree, a flash of lightening, a tornado or a flood.
The essential conditions of this defence are,
(1) the event causing damages was the result of natural forces without any intervention from human agency, and
(2) the event was such that the possibility of such an event could not be recognized by using reasonable care and foresight.
Whether a particular event amounts to an Act of God is question of fact. Today the scope of this defence is very limited because with the increase in knowledge the foresight also increases and it is expected that the possibility of the event could have been visualized.
Whether a particular circumstance or occurrence amounts to an act of God is a question of fact in each case and the criterion for deciding it “is no human foresight and prudence could reasonably recognise the possibility of such an event.” There is a tendency on the part of courts to limit the application of the defence of act of God not because of the fact that its application in the cases of absolute liability is diminished but because advancement in the scientific knowledge which limits the unpredictable.
In Ramalinga Nadar Verses Narayana Reddiar, the Kerala High Court held that the criminal activities of the unruly mob cannot be considered to be an Act of God.
In Saraswati Parabhai Verses Grid Corporation of Orissa and Others, where an electric pole was uprooted and fell down with live wire which caused death of a person. Orissa High Court rejecting the defence of Act of God held that it was the responsibility of the Grid Corporation authorities to provide protection in such situation of storm and rain.
All recent authorities support the view that ‘inevitable accident'”negatives liability. An ‘inevitable accident’ is that which could not possibly be prevented by the exercise of ordinary care, caution and skill. It means an accident physically unavoidable. It does not apply to anything which either party might have avoided. It is an accident such as the defendant could not have avoided by use of the kind and degree of care nece’ssary to the exigency, and the circumstances, in which he was placed. If in the performance of a lawful act, done with all due care, damage ensues through some unavoidable reason, such damage affords no cause of action. “People must guard against reasonable probabilities, but they are not bound to guard against fantastic possibilities.
In A. Krishna Patra Verses Orissa State Electricity Board, the Court explained inevitable act and held that an inevitable accident is an event which happens not only without the concurrence of the will of the man, but in spite of all effects on his part to prevent it.
Limitations of this defence, In trespass as well as in negligence, inevitable accident has no place. Similarly, under the rule in Ryland Verses Fletcher, the defendant is liable even if he has taken reasonable care. In the same way the defence has no role in cases of absolute liability.
Distinction between “inevitable accident” and “act of God”, Dr. Winfield says that “an act of God” is much older, much simpler and much more easily grasped by primitive people than is the idea of ‘inevitable accident.’ A falling tree, a flash of lightning, a tornado, or flood presents to the observer a simple and dramatic fact which a iayman would regard as an excuse for harm done without further argument…. But the accidents which are not convulsions of nature are a very different matter. To know whether injury from a run away horse was inevitable, one must ask ‘would a careful driver have let it run away’..,. ‘Inevitable accident’ differs from the act of God in
(1) not depending on ‘natural forces,
(2) being a general defence. All cases of ‘inevitable accident’ may be divided into two classes,
(1) those which are occasioned by the elementary forces of nature unconnected with the agency of man or other cause, and
(2) those which have their origin either in whole or in part in the agency of man, whether in the commission or omission, non-feasance or misfeasance, or in any other causes independent of the agency of natural forces. The term “act of God” is applicable to the former class. The latter type of accidents are termed ‘inevitable accident’ or “unavoidable accidents.”
An act of God will be extraordinary occurrence due to natural cause, which is not the result of any human intervention, which could not be avoided by any foresight and care, for example, a fire caused by lighting. But an accidental fire, though it might not have resulted from any act or omission of common carrier, cannot be an act of God.
Private defence is another ground of immunity well known to the law. No action is maintainable for damage done in the exercise of one’s right of private defence of person or property provided that the force employed for the purpose is not out of proportion to the harm apprehended. And what may be lawfully done for oneself in this regard May likewise be done for a wife or husband, a parent or child, a master or servant. But the force employed must not be out of proportion to the apparent urgency of the occasion.
Thus it is not justifiable to use a deadly weapon to repel a push or blow with the hand. “Honest and reasonable belief of immediate danger” is the test. Indian Penal Code extends the benefit of this defence even in case of causing death in certain circumstances.
In India the right of private defence has been given a statutory recognition in Sections 96 to 106 of the Indian Penal Code. Though provisions of these sections are applicable to the criminal law, the principles contained therein may profitably be imported into the Law of Torts.
Self-defence as a permissible defence against an action in torts has recently been discussed by Orissa High Court in Devendra Bhai Vs Megha Bhai, the principle extends not only to the right of person to protect himself but also to protect others’ life, his wife, his parents and his child. He is to use only necessary force or not to use force in excess of what is necessary
A person cannot complain of a wrong which is authorised by the legislature. When a statute specially authorises a certain act to be done by a certain person which would otherwise be unlawful and actionable, no action will lie at the suit of any person for the doing of that act. “For such a statutory authority is also statutory indemnity taking away all the legal remedies provided by the law of torts for persons injuriously affected.” (Salmond) If I construct a bridge under the authority of a statute and if anybody is denied his right of way and traffic through that way for a specific period, no suit can be brought against me for what I have done is in pursuance of statutory authority.
Therefore, if a railway line is constructed, there may be interference with private land when the trains are run, there may also be some incidental harm due to noise, vibration, smoke, emission of spark etc. No action can lie either for interference with the land or for incidental harm, except for payment of such compensation which the Act itself may provide.
In Vaughan Verses Taff Valde Rail Company, sparks from an engine of the respondent’s Rail Company, set fire to the appellant’s woods on adjoining land. Held, that since the respondent had taken proper care to prevent the emission of sparks and they were doing nothing more than that the statute had authorised them to do, they were not liable.
Similarly, in Hammer Smith Rail Coch Verses Brand, the value of plaintiff’s property had considerably depreciated due to the noise, vibration and smoke caused by the running of trains. The damage being vibration and smoke caused by the running of trains. The damage being necessarily incidental to the running of the trains authorised by the statute, it was held that no action lies for the same. However, when an act authorised by the legislature is done negligently, then an action lies.
In Smith Verses London & South Western Railway Company, the servants of a Railways Company negligently left trimmings of grass and hedges near a rail line. Sparks from an engine set the material on fire. By a heavy wind the fire was carried to the nearby plaintiff’s cottage which was burnt. Since it was a case of negligence on the part of the Railways Coch, they were held liable. When a statute authorises the doing of an act, which would otherwise be a tort, the injured has no remedy except the one (if any) provided by the statute itself.
An Indian case of this point is of Bhogi Lal Verses the Municipality of Ahmedabad, The Municipality of Ahmedabad demolished the wall of the plaintiff under their statutory powers. The demolition of the wall also resulted in the falling of the roof of the defendant on the wall. On an action by the plaintiff for the damage to his property, it was held by the court that the defendant would not be liable.
For no suit will lie on behalf of a man who sustain a private injury by the execution of powers given by a statute, these powers being exercised with judgment and caution. But statutory powers are not charters of immunity for any injurious act done in the exercise of them. The act done in pursuance of the statutory powers must be done without negligence. If it is done negligently an action lies.