As far as the defenses under tort law are concerned, there are certain defenses which you can take by any wrong doing in tort law. These are known as general defenses. Let us have a look at these defenses. They are as follows:-
- Plaintiff himself being the wrong doer
- Act of God
- Inevitable Accident
- Private Defense
- Act done in respect of a Statutory Authority
Volunti non fit injuria
As far as the defense of consent is concerned, it arises from a latin maxim volunti non-fit injuria, it means that a person who consents to harm cannot say that a tort has been committed against him. No one can enforce a right which he has voluntarily waived off or abandoned consent to suffer the harm may be express or implied.
For the defense of consent to be available, the act of causing the harm must go beyond the limit what has been consented.
Case laws on the above defense –
- Hall v. Brooklans Auto Racing Club- In this case, the plaintiff during a car race got injured due to the collision of two cars. During the collision, one car came into the stands, which caused injury to the plaintiff. Plaintiff sued the defendant for the damages, but the defendant was not held liable as the plaintiff himself took the risk of injury.
- Padmavati v. Dugganaika – In this case, plaintiff along with two strangers in the jeep, was travelling and bolts of the tyre of the jeep opened up due to which the car toppled. In this incident one of the stranger was thrown out of the jeep, while the other stranger was severely injured. Since it is the sheer case of accident, defendant was not held liable.
- Woodbridge v. Sumner- In this case, plaintiff was a photographer in the horse race. While he was clicking photos during the event, he was severely injured by the defendant’s horse. Defendant was not held liable as the plaintiff himself consented and voluntarily went there to click photos.
Some important things to be remembered while learning VNFI, they are as follows:-
If the consent of the plaintiff has been obtained by fraud or under compulsion or under some mistaken impression such consent doesn’t deserve a good defense.
Lakshmi Rajan v. Malar Hospital Ltd.- In this case, plaintiff was a married woman of 40 years who got lump in her breast. Malar Hospital has taken consent for any mishappening in the surgery. During the surgery, along with breast lumps her uterus was also removed without any justification. Since the hospital has taken consent only for the lumps in her breast, the defendants were held liable.
Ex turpi causa non oritur action- From an immoral cause, no action arises.
Case – R v. Williams– In this case, the defendants was a singer who used to teach singing to his students. Defendant during the singing lesson convinced one of his student to give her consent for sexual intercourse with him for the purpose of improving her voice. In this case the defendant will be held liable.
Consent under compulsion-
Consent given under circumstances when the person does not have a freedom of choice is not, the proper consent. Such consent generally arises in a master servant relationship.
Thus, a man cannot be said to be truly willing, unless he is in a position to choose freely and freedom of choice predicts, not only full knowledge of circumstances on which exercise of choice is conditional, so that he may be able to choose wisely, but the absence of any feeling of constraint so that nothing shall interfere with the freedom of his will. Therefore, there is no volunti non fit injuria, when a servant is forced to do some work, despite his protest.
To prove that the consent was obtained under compulsion, the following two points need to be proved:-
- Plaintiff knows about the risk.
- Plaintiff knowing the same, agreed to suffer harm.
- Smith v. Baker– In this case, the plaintiff employed Baker to work on a drill for cutting rocks. Stones were being carried with the help of crane from one place to another. The crane passed from the plaintiff’s head while he was busy in his work. Suddenly, stone fell on the plaintiff’s head and he got injured. Plaintiff knew the risk, still he agreed to work. Defendant was held liable and the plaintiff was consented.
- Dann v. Hamilton- In this case, the plaintiff knowingly that the driver was drunk asked the driver for lift. Due to the drunk driver negligence, car crashed in which the driver died and the plaintiff was injured. The plaintiff claimed for compensation, though contributory negligence was there.
Exceptions of Volunti non fit injuria:-
- Rescue Cases- When a plaintiff voluntarily encounters a risk to rescue somebody from an imminent danger to create by the wrongful act of the defendant, he can’t use the defence of volunti non fit injuria.
Case laws for rescue cases-
Haynes v. Harwood- Defendant’s servant left two horses unattended in the street. A boy threw a stone towards the horse and horse bolted and started running here and there. This created danger to women and children in the street. A policeman saw all this and dived into the scene to prevent the danger. Though he succeeded but was severely injured in doing so. Defendant was held liable even when defendant pleaded that he was just a policeman and he was doing his duty.
- Unfair Contract Terms Act- Limits the right of a person to restrict or exclude his liability resulting from his negligence by a contract term or by notice.
Plaintiff the wrongdoer
Under contract, one of the principle is that no court will aid a person who found his cause of action upon an immoral or an illegal act.
Maxim applied- Ex turpi causa non oritur action– From an immoral cause, no action arises.
The mere fact that the plaintiff was wrong doesn’t entitle him from receiving damages from defendant for wrongful act.
Case – Bird v. Holbrook- Bird (defendant) set a spring gun tap in his garden to protect his property. The spring gun trap injured Holbrook (plaintiff) innocent trespasser. Plaintiff sued the defendant and claim for damages. Defendant was held liable.
It is an important defense in the law of torts and especially in the area of road accidents. It concerns a situation where a person, exercising due care, diligence and ordinary prudence could not have foreseen or avoided an accident.
- Stanley v. Powell- In this case, plaintiff and defendants were the member of the shooting party. Defendant was focusing on a pheasant. One of his pallet from the gun hit the branch of the tree that changed it’s direction and accidently wounded the plaintiff. Since, it was a sheer case of accident and was not foreseeable, defendant was not held liable.
- Shridhar Tiwari v. U.P State Road Transport Corporation- In this case, bus of UP SRTC was passing through a village. Suddenly a cyclist came on the road, to save him the bus driver applied brakes. But due to wet roads, on applying brakes the bus slipped and collided with another bus coming from the opposite direction. Defendant was not held liable as it was sheer case of accident.
Act of God
- – Extra ordinary occurrence of circumstances which could have not been foreseen and guarded against, or more accurately, due to natural cause directly or exclusively without human intervention. There are two essentials of act of god, they are as follows:-
- There must be working of natural forces.
- Occurrence must be extra ordinary and not one which could have been guarded against.
- Nichols v. Marsland- In this case, defendant created an artificial lake on his land by damming some natural streams. Due to extra ordinary rainfall, rush of water washed away plaintiff’s bridge. Even it was said that the rainfall was heaviest at that time till that time. Since it was an act of god and defendant could not guard that, he was not liable.
- Kallulal v. Hemchand- In this case, rainfall led to collapsing of defendant’s wall. In this incident, plaintiff lost his children. Defendant pleaded that it was mere act of god. But there wasn’t anything extraordinary as there was normal rain at that time. Defendant was held liable.
The law permits use of reasonable force to protect one’s person or property. If defendant uses force which is necessary for self defense, he will not be liable for the harm caused thereby. The use of force should be justified only for the purpose of defense. There should be imminent threat to the personal safety and property.
- Bird v. Holbrook- You can refer to the facts given in the defense of “Plaintiff, the wrongdoer”.
- Ramanaju Maudali v. M Gangan- In this case, defendant laid some live wires around his house. Plaintiff received shock due to those live wires and was severely injured. Since there was no warning given, defendant was held liable.
- Cresswell v. Siri– In this case, defendant shot plaintiff’s dog which was chasing his herd of sheep. Keeping in mind that the dog was actually attacking the herd when it was shot down by defendant and there was no other means to stop the dog, at that time defendant was not held liable.
Mistake either of fact or of law, is generally no defense to an action for tort. When a person carefully interferes with the right of another person it is no defense to say that he has honestly believed that there was some justification for the same.
Case – Consolidated Co v. Curtis & Sons- In this case, Auctioneer was asked to auction certain goods by his customers. Auctioneer believing to customer auctioned them and paid the customer, but those goods belonged to someone else.
If the act causing damage is done to prevent a greater harm, it is excusable. For example, a ship ran over a small boat hurting two people in order to prevent collision with another ship which would have hurt hundreds of people is excusable. Thus, in Leigh v. Gladstone, force feeding of a hunger striking prisoner to save her was held to be a good defense to an action for battery.
An act that is approved by the legislature or is done upon the direction of the legislature is excused from the tortuous liability even though in a normal circumstances, it would have been a tort. When an act is done under the authority of an act it is a complete defense and the injured party has no remedy except that is prescribed by the statutes. In Vaughan v. Taff Valde Rail Co 1860, sparks from an engine caused fire in appellant’s woods that existed in his land adjoining the railway track. It was held that since the company was authorized to run the railway and since the company had taken proper care in running the railway, it was not liable for the damage.
Submitted By- Prerana Anand
(Editor @ Legal Bites)