1/24/2016 General Defences in Tort ­ CLATJunction.com General Defences to Torts 1. 2. 3. 4. 5. 6. 7. The defence of Consent When plaintiff is the wrongdoer Inevitable Accident Act of God Act in relation to Private Defence Necessity Act in respect to Statutory Authority The defence of Consent: This defence is based on the principle of ‘Volenti non fit Injuria’.A person, who has voluntarily agreed to suffer harm, cannot claim damages for such harm. This consent to suffer harm can be either express or even implied.However, such consent must be given freely and not obtained by fraud or any other illegal means. When plaintiff is the wrongdoer: This defence is based on the maxim ‘Ex turpi causa non oritur actio’ which means ‘no action rises from an immoral cause’. So, when the action of the plaintiff is unlawful itself, it might lead to a defence in general. Inevitable accident – As the name suggests, it is used to refer to an accident that can’t be avoided by ordinary prudence and caution of human beings, given the circumstances. It is something that happens against the will of the tort­feasor (the one who commits the tort) and can’t be taken care of. It is beyond the normal standard of care of a reasonable man. Act of God or, Vis Major, (as most atheists would put it) – It talks about an extraordinarily major intervention, something which is a consequence of furious working of natural forces. Act of God is not within the possibility of foresight and preventability of a reasonable human being. Necessity If damage is caused to avoid a greater damage, it becomes a good defence. Act in respect to Statutory Authority Any damage arising out of an act that the law prescribes or the statute authorises will never become actionable even though in absence of such statutory authority it is an offence in tort. Difference between an Act of God and Inevitable Accident: 1. An accident without the involvement of humans is an act of God. An accident which humans can’t ordinarily avoid is inevitable accident. 2. In case of inevitable accidents, the actions may be a result of human activities. Hence, even if one knows the occurrence is going to happen, one still can’t avoid it. However there http://www.clatjunction.com/general­defences­in­tort.html 1/3 1/24/2016 General Defences in Tort ­ CLATJunction.com is no room or possibility of human foresight in case of an Act of God or Vis Major. Note that ‘Inevitable Accident’ is no defense to absolute liability however it is acceptable in case of strict liability. Here are some cases that should assist you in your understanding of these defenses. Note that it is not necessary to memorise facts. EXAMPLE 1. The case is about a bolted horse gone out of control. Rahul, the owner of the horse, said that he tried to control the horse but was in vain. He didn’t want Awasthi, a nearby hawker, to suffer injury because of the horse gone astray. However, Awasthi got knocked down by the horse, which had gone out of control and the horse damaged his cart. Now here, the defense of inevitable accident would apply if it is established that Rahul was not negligent or it was not his fault that the horse went out of control. In this case, the defense of inevitable accident holds good and though Awasthi suffered grievous injuries, it was something that Rahul couldn’t avoid. Note: In the absence of negligence, defense of inevitable accident is available and not otherwise. Which means that only if there is no negligence or exercise of due care on Rahul’s part, can he claim the defense of Inevitable Accident. EXAMPLE 2. Nitroglycerine Case Surya was engaged in the business of transporting of goods. A wooden box was received, to be transported and the Surya was not aware of its contents. While the box was in Surya’s office, it exploded (probably because of lethal nitroglycerine stored in it), causing damage to life and property. Seth Ghanshyam, the owner of the building in which Surya’s office was located, sued for damages. Here, since no negligence on Surya’s part is established, the defense of inevitable accident is available. EXAMPLE 3. In this case, rainfall was the reason for flooding of an artificial lake resulting in adjoining places being flooded. Here the defense of Act of God holds. However if rainfall was well predicted and it was not an extraordinary shower or an unpredicted cloud burst, then it can’t be called “Act of God”. However otherwise, it can be. EXAMPLE 4. In this case, a live electric wire fell on the street due to heavy rains. A cyclist was electrocuted. The municipal corporations or concerned authorities didn’t exercise due care and install good quality wires,. Therefore the defense of the plea of Act of God will not be accepted. Note: When damage could be related to human negligence, there is no defense of Act of God. Some other defenses: Mistake (which is of two types): a) Mistake of Law. Mistake of law is no defense and ignorance of law, no excuse. b) Mistake of Fact. Mistake of facts is a defense in crime but inn torts, nistake of facts is not a defense every http://www.clatjunction.com/general­defences­in­tort.html 2/3 1/24/2016 General Defences in Tort ­ CLATJunction.com time. This would make you clear that when is mistake of fact a defense. Mistake can be pleaded as a defense in the following cases: 1. Malicious prosecution of an innocent Where motive or intention is essential, mistake is a defense. (e.g. in case of malicious prosecution). Malice takes away the defense of mistake. If there is a malice on the part of police officials in prosecuting an innocent person, then it is a tort for which mistake is no defense. 2. Mistaken Arrest of an innocent person Mistaken arrest of an innocent person can be pleaded as a defense. However, a reasonable and well­founded suspicion, even if proven false at a later stage, is not a tort, provided, of course, that it is free from any vengeance and negligence. Right to private defense:­ This right entitles a person to go to any extent to protect one’s life, property, or any third person. Provided, of course, that such a force used in private defense must be reasonable force to repel the attack and it should always be in defensive and not offensive. Also, the danger must be imminent. If there is malice and one is not naturally reacting to the attack on oneself but such a reaction is pre­planned then such a force is deemed to be unreasonable and the defense is not available. The following case should make the application of the defense clearer. Please note that you are under no compulsion to memorise these facts. These are only for your convenience. In this case , a dog belonging to Tewari, began chasing the Chauhan’s servant Raju and bit him. Then Tewari turned around and raised his gun. The dog on seeing an imminent threat to his life, ran away, however, he shot the running dog. Here the private defense is not available as the act of shooting the dog was an offence and not a defense ( as Tewari shot a dog that was already leaving the site and there was no imminent threat to him in that situation). http://www.clatjunction.com/general­defences­in­tort.html 3/3