trespass

In this article, Ninisha Agrawal discusses General Defences in torts.

Definition of Tort

The word tort has been derived from the Latin term “Tortum” which means “to twist”. It is a civil wrong in which legal right of a person is violated when there is a breach of duty by the defendant. It is redressible by a civil action for damages which is unliquidated in nature (to be decided by courts). It is neither a breach of contract nor breach of trust.

What are General Defences in Torts?

When a plaintiff brings an action against the defendant for a particular tort or violation of legal right, resulting in legal damages, and successfully proves the essentials of tort, the defendant is held liable. But some exceptions are there in which defendant can plead some defences which can help him in absolving from liabilities.

Private Defence

When a defendant, in order to protect his body, property or any other person’s property, harms other person by using reasonable force, under an imminent-danger and where there is no time to report immediately to the authority, it is Private Defence. The harm done should be proportional according to the circumstances.

Essentials

  • Imminent danger

There should be an immediate danger over the life, property of defendant or another person’s property in which there is no time to report to the nearest authority. If the defendant is not able to contact that particular authority, then he can take up the private defence.

  • Proportional force

The force applied by the defendant should be reasonable. It should not be in excess of what is required.

Example: If a thief breaks into a house of the defendant and he tries to injure the defendant by beating him with a stick, then defendant should tackle the thief using proportional force. If he is using a shotgun, then he can fire it on thief’s legs instead of chest or forehead, otherwise it would be unreasonable.

Cases

  • In Bird v. Holbrook: The Defendant put up spring guns in the fencing of his garden so that the trespassers may not be able to enter it. But no sign or board of warning was put up. One day, a child trespasser was seriously injured by automatic discharge of spring guns. The defendant’s plea was not accepted as his use of spring guns was not proportional to the danger and it was not reasonable.
  • In Sitaram v. Jaswant Singh: The defendant, who was the occupier of a land, gave an axe-blow to the trespasser whose vital part of body was injured. The High court of Nagpur said that the use of force by defendant was excessive and not proportional according to the circumstance. Moreover, plaintiff was not in possession of any equipment or weapon whereas defendant used an axe to injure him. The Court dismissed his plea.

Necessity

‘Necessity knows no law’. In order to avoid or avert a bigger loss or harm, a defendant can cause a lesser harm which is justified. The act of defendant may be wrongful but if it is for preventing a major damage then he can plead this defence.

Essentials

  • The defendant acted to avoid a significant risk of harm.
  • His causing of harm should be justified.

Cases

  •  In kirk v. Gregory: A sister-in-law removed the jewellery from the body of a deceased because she thought it would be unsafe and kept that in another room but it was stolen. The executors of the deceased filed a plaint against the defendant but she pleaded the defence of necessity. Court held that defendant is liable as the act done was not justified as there was no foreseeability of theft of jewellery.
  •  In Scott v. shepherd: The defendant Shepherd mischievously threw a burning squib into a crowded place. It fell on the shed where Yates had his Gingerbread shop. A person named Willis picked up the squib in order to save himself and the shop and threw it across the road but it fell on the shed of Royal, who in turn, picked it up and threw it causing injury in the eye of Scott. Shepherd pleaded necessity because of intervention of Yates’s act. The court rejected the plea of necessity and self-defence and held that the defendant (Shepherd) is liable.

  • Inevitable Accident

Inevitable Accident is a mishap, the occurrence of which could not have been prevented despite of taking any degree of care and attention by an ordinary and prudent individual.

Cases

  • In Brown v. Kendall: The dogs of the plaintiff and defendant were fighting but when the defendant, in order to stop their fight, accidently hit the eye of the plaintiff causing injuries. The defendant pleaded the defence of inevitable accident and the court held that injury was accidental. Therefore, no action can be taken against the defendant by the plaintiff.
  • In Stanley v. Powell: The plaintiff and the defendant went for pheasant shooting. At the time of shooting by defendant, the bullet accidentally glanced off a tree, causing injury to the plaintiff. The court held that injury was accidental and not actionable.

Act of God

An extraordinary act or an event which is the result of the natural forces such as earthquakes, volcanic eruptions, floods, droughts etc. is termed as Act of God or ‘Vis major’. It is beyond human imagination and could not be prevented by human intervention.

Essentials

  • The act should result from a natural force.
  • No human intervention.
  • Extraordinary in nature

Cases

  • In Nicholas v. Marshall: The defendant had set up some artificial lakes in his land. One day, due to extraordinary rainfall and flood, the embankments broke and plaintiff’s property got damaged heavily. The event was caused by extraordinary force which was not foreseeable and thus, the defendant was not liable. It was the Act of God with no human intervention.
  • In kallulal v. Hemchand: The wall of the building of defendant collapsed due to 2.66 inches rain resulting in the death of plaintiff’s children. The court held that the event was not extraordinary and extra care and attention could have prevented the injury. Thus defendant was held liable.

Mistake

When a defendant acts under a mistaken belief in some situation, he may plead the defence of mistake. Mistake is of two types:

  • Mistake of law: No defence in both civil and criminal case.
  • Mistake of fact: Not valid in torts

Cases

  • In Morrison v. Ritchie & Co: The defendant published a statement by mistake that plaintiff had gain birth to twins in good faith but the reality was that the plaintiff got married before two months only. The defendant was held liable for defamation irrespective of the element of good faith.
  • In Consolidated Company v. Curtis: An Auctioneer auctioned the good of the customer, believing him to be the real owner and paid the sale proceeds to that customer. But then the true owner sued the auctioneer for conversion. The court held that auctioneer is liable as mistake of fact is not application and asked him to pay the damages done.

Statutory Authority

If an act is authorised by a statutory enactment or a law passed by the legislature, then the defendant cannot be held liable for the damages resulting in the course of such an act.

Case

  • Smith v. London and South Western Railways:

The servants of the railways negligently left the trimmings of the grass near the railway track due to which the heap of grass caught fire from the sparks of the engine. By a heavy wind, the fire spread to the cottage of the plaintiff which was 200 yards away from the railways. The college got burnt. The railways were held liable because it was negligence on their part.

When a plaintiff himself is the wrongdoer

It is based on the maxim ex turpi causa that if the plaintiff himself is involved in the wrongful act or conduct, then he cannot recover damages.

But if a defendant contends that claimant himself is the wrongdoer and not entitled to the damages, then it does not mean that court will absolve him from the liability.

Cases

  • Pitts v. Hunt: A rider who was of 18 years of age encouraged his friend of 16 years to drive fast and recklessly under drunken conditions. But suddenly their motorcycle met with an accident, the driver got injured and died on the spot. The pillion rider suffered grave injuries and claimed compensation from the relatives of the deceased but his plea was dismissed on the ground that he himself was the wrongdoer.
  • Dr Alice George and another v. Lakshmi: A women having three children had undergone a tubectomy operation on advice of doctors. Despite of operation, a fourth child was delivered and she was advised to prevent abortion as it may lead to further complications which can lead to death also. The defence taken by defendant was that even after sterilization operation, there was still 0.5% chance of conceiving. But they failed to prove that the operation was being carried out vigilantly. So the court held them liable for negligence and awarded Rs.50000/- damages to the plaintiff.

Volenti Non Fit injuria

In volenti non fit injuria, if a plaintiff has consented to a wrongful act with free content, either express or implied, under no pressure of fraud or coercion, with voluntary acceptance of risk, then he has no right to sue the defendant. Also, there should be a duty on behalf of other.

Essentials

  • Free consent

The defence is available only when consent is free without any fraud, coercion or compulsion. The act of defendant should also be the same for which the plaintiff has consented. There should be voluntary acceptance of the risk.

  • Consent should be expressed or implied

Consent given can be verbal (through words) or non-verbal (body language or gestures) but it should be clear without any ambiguity. There should be a clear expression of approval from the individual.

  • Scienti non fit injuria/ knowledge of risk

Plaintiff must know that a particular nature of act can cause harm to him or her. If he/she does not understand the extent of risk, then defence cannot be taken.

  • Consent to an illegal contract

Where the act of defendant is unlawful and prohibited, no consent can turn it into a lawful act. Defendant will be held liable.

  • Consent of minors/ insane

Consent of minors is not taken into consideration but consent of guardian is sufficient.

Case

In Dann v. Hamilton: Miss Dann was the passenger of the car of Mr Hamilton who was dunk at that time of driving. Dann knew it but entered the car. There was an accident due to negligent driving and Dann got injured. The court held that though she had knowledge of risk, yet there was no consent for injuries. So Hamilton was held liable.

Exceptions

  • Consent to an illegal act:

No amount of consent can convert an unlawful act into a lawful one and defendant will be held liable.

  • In rescue case

When the plaintiff had voluntarily undertaken a risk to rescue someone from an imminent danger created by defendant’s wrongful act and if he got injured then defence will not be applicable.

  • Negligence

In cases of negligence by the defendant, the plaintiff can claim compensation if he got injured in it.

  • Statutory Duty

For example, if a statute is laid down on a factory owner to fence dangerous machinery or to avoid use of certain explosive devices, he will be liable if he fails to implement the rules and there will be a breach of duty. He cannot plead defence of plaintiff’s consent.

The purpose of this article is to emphasize upon the importance of General Defences in torts. It highlights various instances in which different defences can be applied to cases depending upon the circumstances and facts. Students should firstly read the case, understand it and then apply suitable defence to it. But for the understanding, certain concepts should be cleared. This article explains the defences of torts in an elucidated manner which will help the aspirants in a long run.

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