Primer on General Defences in The Law of Torts
Primer on General Defences in The Law of Torts
In this entire chapter, we will be dealing with the General Defences that are available in the Law of Tort. You have to remember that these are the General Defences and therefore they apply to all torts. We’ll deal with each one of them individually with appropriate illustrations:
Volenti Non Fit Injuria
The literal meaning of this maxim is that ‘One cannot complain of an injury for the act that he consented for’. The consent can either be express or implied. After the consent, the act that would otherwise tortious, the person who consented will no longer be able to raise a complaint for any injury for the act that he consented for. Irrespective of the consent being expressed or implied, it must be a free consent and must not have been obtained by fraud. But there are a few things that you have to keep in mind when you are examining the consent.
Consent must be the free consent.
Knowledge does not necessarily imply consent.
When someone voluntarily undertakes a risk to rescue someone from an imminent danger, it is not considered as Volenti Non fit Injuria
Illustration: When someone goes to a Stadium as a spectator to witness a sport, they take upon themselves the risk of getting hit by the ball. They know about the risk involved and consent for it which can be substantiated by their act of purchasing ticket and their presence in the stadium. This is a fit case of Volenti Non fit Injuria.
If the damage is caused because of the inevitable accident, this can be used as a defence in case of a Tort. An inevitable accident is said to be caused if it was not intentional and also could have not been avoided by exercise of ordinary care and caution. Keep in mind the following points:
The ordinary care and caution must have been exercised.
The ordinary care and caution is subjective and the degree of the same, depends upon the nature of the act.
Illustration: If a person who is driving a car with all the proper care and caution, suddenly gets a heart attack and causes an accident. He can take the defence of inevitable accident because he could have not avoided the heart attack and he exercised the care and caution while driving the vehicle.
The defence of Mistake in the Tort can be taken with respect to the fact and not with respect to the law. It is justified by the legal Maxim “ignorantia juris non excusat” which means that ignorance of law is no excuse. This defence can be taken when the act and its consequences were known and intended but he did it under an erroneous belief based on some reasonable grounds that some circumstances existed that justified their act.
It must be a mistake of fact and not the mistake of law.
There must be some reasonable grounds that made you believe on the existence of such circumstances that justified your act.
Illustration: A, on behalf of B, sold a watch to C. Later D claims the watch and sues A. A can take the defence of mistake as he believed that the watch belonged to B and there were reasonable grounds for his belief.
If a person is compelled to do an act out of sheer necessity, then even if his act would have caused an injury or damage to the other, he will not be held liable. This is a simple defence but the only caution while applying it, is to make sure that such act being claimed to be done out of necessity must have been done in order to prevent a greater evil.
Illustration: If a house is on fire and there is a family is inside that house, then if a stranger will jump the fence to enter the neighbourhood without the permission of the owner to help the family in the burning house to get out, he can plea the defence of necessity if the owner of the neighbourhood sues him for Tort.
It is one of the most recognised defence where a person who uses reasonable and proportionate force to protect the person or property against any threat or danger. So, if you apply a proportionate force that caused an injury to someone but you applied that force to protect the person or property against any threat or danger, you can plead the defence of Private defence. While applying this defence, make sure that:
The force you applied was proportionate to the nature of threatened evil.
The force must be only that much, as it is necessary to prevent the harm.
If A throws B’s pen out of the window, B cannot stab A with a knife as the private defence.
If A is trying to stab B with a knife and B suddenly picks up a vase and throws on A’s head. This can be a case of Private Defence as the force used is proportionate to the threat.
This can be taken as a defence when there is a statute that authorises a certain act to be done by a certain person and in the absence of the authority that act would be illegal or unlawful. It takes away all the legal remedy from the person who gets injured as a consequence of such authorised action. It must be noted that:
The authority extends to both the act as well as its consequences
The act must be authorised to be done by a certain person or persons.
Illustration: If a statute authorises a department to lay the railway lines in a certain region and also to take necessary actions to acquire land to lay the railway line, the department is authorised to acquire the land with houses and ask people to vacate. Since it is authorised by a statute, no suit will lie against it.
Act Of God
This defence is also referred to as Vis Major. It can be defined as the operation of unexpected natural forces where it is impossible for any human to anticipate or forsee it. In other words, it is an accident caused due to natural forces without any human intervention and which could have not been avoided by any amount of foresight and reasonable care on the part of the person who is made liable. Two things that are to be kept in mind are:
It must be the natural forces and not any human intervention.
The occurrence must be as extraordinary as it was unforeseeable and unstoppable, irrespective of the exercise of reasonable care and caution exercised.
Illustration: If during the rainy season, the wall of a house falls injuring 2 persons on a day when it was raining moderately, this defence cannot be taken as the rainfall is a normal occurrence in the rainy season. IN this case, this defence would have been available only if it was an extraordinary rainfall i.e. it is so heavily raining that it was impossible to anticipate and has never happened before.
First published on August 18, 2020.