General Defenses: The wrong doer is liable for the wrong committed by him however there are certain general principles or defens…
General Defenses:
The wrong doer is liable for the wrong committed by him
however there are certain general principles or defenses which apply throughout
the law of Tort apart from particular defenses which apply to a particular Tort
as they have been discussed under the particular branch of Tort.
however there are certain general principles or defenses which apply throughout
the law of Tort apart from particular defenses which apply to a particular Tort
as they have been discussed under the particular branch of Tort.
Following are the general defences of
Torts:-
Torts:-
- Volenti Non fit Injuria
– - Act of God –
- Mistake –
- Necessity –
- Inevitable accident –
- Statutory accident-
- Judicial authority
- Private defense
- Act of state
- Officer of the court
Volenti Non fit Injuria
Voluntarily acceptance of injury is not fit for action in
Torts. It means that a person who consents to an act being done or who takes
upon himself the risk of suffering damage cannot bring on action in respect of
that act or damage.
Torts. It means that a person who consents to an act being done or who takes
upon himself the risk of suffering damage cannot bring on action in respect of
that act or damage.
No action lies against the injury suffered voluntarily as no
man can enforce a right which he has voluntarily waived or abandoned.
man can enforce a right which he has voluntarily waived or abandoned.
The consent may be express or implied.
Examples:
(a) A
invited guest in house later he can’t sue them as trespasser
invited guest in house later he can’t sue them as trespasser
(b) A
patient gave consent for surgery, later he can’t sue the surgeon for doing the operation.
patient gave consent for surgery, later he can’t sue the surgeon for doing the operation.
(c) If ‘A’ cries for help and ‘B’ voluntarily
tries to help him and if person ‘B’ gets injured, later he can’t sue ‘A’.
tries to help him and if person ‘B’ gets injured, later he can’t sue ‘A’.
(d) A spectator in a cricket match got injured by
the ball. He gave his implied consent and voluntarily sat in the stadium.
the ball. He gave his implied consent and voluntarily sat in the stadium.
(e) A videographer gets injured while shooting a
racing car as the car goes off the track accidentally; the car driver is not
liable.
racing car as the car goes off the track accidentally; the car driver is not
liable.
In the defence of Volenti non fit
Injuria mere knowledge of the risk does not form consent.
Injuria mere knowledge of the risk does not form consent.
Explanation: Volenti Non Fit Injuria is different from Scienti non fit
Injuria. Scienti means knowledge and volenti means voluntarily, meaning thereby
mere knowledge of the risk does not form consent. Defendant can get benefit in
case of Volenti Non Fit Injuria only not in Scienti non fit Injuria.
Injuria. Scienti means knowledge and volenti means voluntarily, meaning thereby
mere knowledge of the risk does not form consent. Defendant can get benefit in
case of Volenti Non Fit Injuria only not in Scienti non fit Injuria.
There must be free consent. It should
not be taken by fraud, misrepresentation, mistake, coercion and undue
influence.
not be taken by fraud, misrepresentation, mistake, coercion and undue
influence.
Case Law :
Smith V. Charles Baker & Sons.
Smith V. Charles Baker & Sons.
Smith was employed with Charles Bakers.
One day smith was working on a drilling machine and on the top of which a crane
often jibbed. It was a normal practice that the stones were jibbed over his
head. One day a stone from the crane fell down and injured smith. House of
Lords held that smith had knowledge but not consented to undertake the risk of
being hurt, there was negligence on the part of Charles baker & sons i.e.
Respondent and respondents were held liable.
One day smith was working on a drilling machine and on the top of which a crane
often jibbed. It was a normal practice that the stones were jibbed over his
head. One day a stone from the crane fell down and injured smith. House of
Lords held that smith had knowledge but not consented to undertake the risk of
being hurt, there was negligence on the part of Charles baker & sons i.e.
Respondent and respondents were held liable.
1. Volenti
Non Fit Injuria:
Non Fit Injuria:
Case law:
Hall Vs Brooklands Auto Racing Club
Hall Vs Brooklands Auto Racing Club
The plaintiff was a spectator at a
motorcar race. Due to a collision between two racing cars, one of it rammed in
to the spectator’s stand and injured the plaintiff. Held the organizers were
not liable, as the plaintiff impliedly took the risk of such injury.
motorcar race. Due to a collision between two racing cars, one of it rammed in
to the spectator’s stand and injured the plaintiff. Held the organizers were
not liable, as the plaintiff impliedly took the risk of such injury.
This general defence has a few
important exceptions:
important exceptions:
Following are the exceptions
a. Rescue Cases
When the plaintiff voluntarily
undertakes a risk to rescue somebody from an imminent danger, created by the
wrongful act of the defendant, the defendant cannot set up the defence of
‘Volenti non fit injuria’ against the plaintiff.
undertakes a risk to rescue somebody from an imminent danger, created by the
wrongful act of the defendant, the defendant cannot set up the defence of
‘Volenti non fit injuria’ against the plaintiff.
Case
Law: Haynes Vs Harwood
Law: Haynes Vs Harwood
In Haynes V. Harwood, the defendant
left a horse carriage outside a building, absolutely unattended. Some urchins
playing nearby threw stones at the horse. The horse unbridled itself and
started running amok. This frightened the passer bys and everybody started
running. A police constable, who was on duty in a nearby police station,
decided to take charge of the situation and succeeded in stopping the horse. In
the process of doing so, he sustained injuries and claimed damages from the
defendant. The defendant was held liable and was prevented from setting up the
defence of Volenti non-fit injuria.
left a horse carriage outside a building, absolutely unattended. Some urchins
playing nearby threw stones at the horse. The horse unbridled itself and
started running amok. This frightened the passer bys and everybody started
running. A police constable, who was on duty in a nearby police station,
decided to take charge of the situation and succeeded in stopping the horse. In
the process of doing so, he sustained injuries and claimed damages from the
defendant. The defendant was held liable and was prevented from setting up the
defence of Volenti non-fit injuria.
2. Plaintiff,
the Wrongdoer:
the Wrongdoer:
The
defendant can effectively set up the defence that the plaintiff is the
wrongdoer, provided some unlawful act or conduct on the part of the plaintiff
is connected with the harm suffered by him.
defendant can effectively set up the defence that the plaintiff is the
wrongdoer, provided some unlawful act or conduct on the part of the plaintiff
is connected with the harm suffered by him.
However, the mere fact that the
plaintiff is a wrongdoer does not disentitle him from recovering from the
defendant for latter’s wrongful act.
plaintiff is a wrongdoer does not disentitle him from recovering from the
defendant for latter’s wrongful act.
Example:
If a trespasser enters the
owner’s premises, the owner cannot inflict unnecessary harm on him by saying
that the plaintiff is the wrongdoer.
owner’s premises, the owner cannot inflict unnecessary harm on him by saying
that the plaintiff is the wrongdoer.
Case
Law: Bird Vs Holbrook
Law: Bird Vs Holbrook
The defendant had set up spring gun
in his garden, with a view to protect the garden. The spring gun injured the
plaintiff, a trespasser who came in to the defendant’s land. Held, the
defendant could not set up the defense, as he had failed to put up a notice
about the spring gun and also, it resulted in excessive harm.
in his garden, with a view to protect the garden. The spring gun injured the
plaintiff, a trespasser who came in to the defendant’s land. Held, the
defendant could not set up the defense, as he had failed to put up a notice
about the spring gun and also, it resulted in excessive harm.
1 3. Inevitable Accident:
If the plaintiff has an unexpected
injury owing to an unforeseen and inevitable event in spite of reasonable care
on the part of the defendant, it is called inevitable accident. The defendant
has to prove that he neither intended to injure the plaintiff nor had the means
to avoid the injury by taking reasonable care.
injury owing to an unforeseen and inevitable event in spite of reasonable care
on the part of the defendant, it is called inevitable accident. The defendant
has to prove that he neither intended to injure the plaintiff nor had the means
to avoid the injury by taking reasonable care.
Case
Law: (1) Stanley V. Powell
Law: (1) Stanley V. Powell
One of the members of a shooting party
accidentally shot at another member, mistaking his movement for that of an
animal. It was held that the injury was an accident.
accidentally shot at another member, mistaking his movement for that of an
animal. It was held that the injury was an accident.
Case
Law: (2) Brown V. Kendall
Law: (2) Brown V. Kendall
In a fight between two dogs, one
belonging to the plaintiff and the other to the defendant, while trying to
separate the dogs, defendant accidentally hit the plaintiff, who was standing
close by, in his eye. Held the defendant was not liable as the injury to the
plaintiff was the result of an accident
belonging to the plaintiff and the other to the defendant, while trying to
separate the dogs, defendant accidentally hit the plaintiff, who was standing
close by, in his eye. Held the defendant was not liable as the injury to the
plaintiff was the result of an accident
4. Act of God (Vis
Major)
Major)
Act
of God refers to some natural calamity such as heavy rainfall, storms,
tempests, and volcanic eruptions.
of God refers to some natural calamity such as heavy rainfall, storms,
tempests, and volcanic eruptions.
Three
conditions are essential for pleading this defence are
conditions are essential for pleading this defence are
(a) There must be working of natural
forces
forces
(b) The occurrence must be extraordinary and not
the one which could have been anticipated.
the one which could have been anticipated.
(c) It must be beyond the control of human kind.
Nichols V. Marsland
The
defendant was owner of an estate containing lakes of ornamental water fed by
natural stream passing through the estate. A very heavy rainfall caused the lakes
to over flow their banks, floods the rivers and carry away four bridges. The
plaintiff claimed compensation for the loss. The court decided that over flow of
lake was due to Act of God (Vis Major).
defendant was owner of an estate containing lakes of ornamental water fed by
natural stream passing through the estate. A very heavy rainfall caused the lakes
to over flow their banks, floods the rivers and carry away four bridges. The
plaintiff claimed compensation for the loss. The court decided that over flow of
lake was due to Act of God (Vis Major).
3 5. Private Defence:
One can protect one’s person or
property by using reasonable force. However, the use of force is justified only
for the purpose of defence and in the process of self-defence, if any harm is
caused, the defendant is not liable.
property by using reasonable force. However, the use of force is justified only
for the purpose of defence and in the process of self-defence, if any harm is
caused, the defendant is not liable.
Note:
1) There should be imminent threat to personal safety or property.
1) There should be imminent threat to personal safety or property.
2) The force used should not be
excessive.
Case
law : Scott Vs. Shepherd
law : Scott Vs. Shepherd
‘A’ threw a lighted firecracker
aimlessly in a crowded market place. It was about to land on a sweet stall. The
owner of the shop, acting in self-defence quickly picked it and threw it. It
fell on the plaintiff. Held that the sweet stall owner had acted in private
defence and hence not liable.
aimlessly in a crowded market place. It was about to land on a sweet stall. The
owner of the shop, acting in self-defence quickly picked it and threw it. It
fell on the plaintiff. Held that the sweet stall owner had acted in private
defence and hence not liable.
Practice Exercise
1.
Which of the following is not a general defence?
Which of the following is not a general defence?
A. Volenti non fit injuria
B. Act of God
C. Scienti non fit Injuria
D. Plaintiff the wrong doer
Ans: C
2. Volenti non fit injuria means
A. Knowledge of injury
B. Voluntarily acceptance of injury
C. Act of God
D. Plaintiff the wrong doer
Ans: B
3.
Scienti non fit injuria
Scienti non fit injuria
A. Knowledge of injury
B. Voluntarily acceptance of injury
C. Act of God
D. Plaintiff the wrong doer
Ans: A
4. Rama calls Suresh home for dinner.
She then sues him for trespass will she succeed?
She then sues him for trespass will she succeed?
A. Yes
B. No
C. Maybe
D. None of the above
Ans: B
5.
A gives B, a doctor her consent for an operation. She sues him later for
performing the surgery. Will A succeed in an action against B?
A gives B, a doctor her consent for an operation. She sues him later for
performing the surgery. Will A succeed in an action against B?
A. Yes
B. No
C. Maybe
D. None of the above
Ans: B
6. Shyam went to watch a cricket match.
The ball hit and he was injured. Can the defence of Volenti non fit injuria
used?
The ball hit and he was injured. Can the defence of Volenti non fit injuria
used?
A. Yes
B. No
C. Maybe
D. None of the above
Ans: A
7.
Ram saw that two horses ran away and were causing a lot of traffic
inconvenience. He tried to stop the horses but got hurt in the process. Would
he be able to claim damages from the owner of the horses?
Ram saw that two horses ran away and were causing a lot of traffic
inconvenience. He tried to stop the horses but got hurt in the process. Would
he be able to claim damages from the owner of the horses?
A. Yes
B. No
C. Maybe
D. None of the above
Ans: A
8. In cases where the plaintiff is the
wrongdoer, the defendant has to establish that the loss or harm suffered is due
to the ____________ of the plaintiff
wrongdoer, the defendant has to establish that the loss or harm suffered is due
to the ____________ of the plaintiff
A. Illegal act
B. Illegal omission
C. All of the above
D. None of the above
Ans: B
9. In cases where the plaintiff is the
wrongdoer can the harm caused be excessive in nature?
wrongdoer can the harm caused be excessive in nature?
A. Yes
B. No
C. All of the above
D. None of the above
Ans: B
10.
If Ramu shoots Rani for trespassing onto his land. Can he claim that she
was the wrongdoer?
If Ramu shoots Rani for trespassing onto his land. Can he claim that she
was the wrongdoer?
A. Yes
B. No
C. All of the above
D. None of the above
Ans: B
11. If Usha had a notice saying that
she has sensor automated water sprinklers in her garden and despite seeing this
Harsh enters her garden. Can Usha claim the defence of plaintiff the wrongdoer?
she has sensor automated water sprinklers in her garden and despite seeing this
Harsh enters her garden. Can Usha claim the defence of plaintiff the wrongdoer?
A. Yes
B. No
C. All of the above
D. None of the above
Ans: A
12. In cases of inevitable accident the
defendant has to prove that
defendant has to prove that
A. No intention to injure the plaintiff
B. Could avoid the injury by taking
reasonable care
reasonable care
C. All of the above
D. None of the above
Ans: C
13. P and Q were out hunting. P shot Q
mistaking his movement for an animal. Will P be held liable?
mistaking his movement for an animal. Will P be held liable?
A. Yes
B. No
C. All of the above
D. None of the above
Ans: B
14. When two dogs were fighting one of
their owners in a struggle to stop the dogs throws a stick at them which hits
the other owner. Will he be held liable?
their owners in a struggle to stop the dogs throws a stick at them which hits
the other owner. Will he be held liable?
A. Yes
B. No
C. All of the above
D. None of the above
Ans: B
15. Vis Major means
A. Major vices
B. Major injury
C. Act of God
D. None of the above
Ans: C
16. Which of the following principles
should be fulfilled in order to plead the defence of Act of God?
should be fulfilled in order to plead the defence of Act of God?
A. There must be working of natural
forces
forces
B. The occurrence must be extraordinary
and not the one which could have been anticipated
and not the one which could have been anticipated
C. It must be beyond the control of
human kind
human kind
D. All of the above
Ans: D
17. If the owner of an estate is sued
as the flooding of a natural stream passing through his estate damages four
bridges. The flooding was due to rainfall. Will the owner be liable?
as the flooding of a natural stream passing through his estate damages four
bridges. The flooding was due to rainfall. Will the owner be liable?
A. Yes
B. No
C. Maybe
D. None of the above
Ans: B (Act of God)
18. One can protect one’s person or
property by using reasonable force. This is
property by using reasonable force. This is
A. Murder
B. Private Defence
C. Act of God
D. None of the above
Ans: B
19. Right to private defence can be
exercised when there is:
exercised when there is:
A. Imminent threat to personal safety
B. Imminent threat to property
C. Both A & B
D. None of the above
Ans: C
20. Can Right to private defence be
excessive?
excessive?
A. Yes
B. No
C. Maybe
D. None of the above
Ans: B
