General Defences

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There are some exceptions in tort which can be pleaded as defence. Usually, when a plaintiff files a suit against the defendant and proves the existence of all essential ingredients of that tort, the defendant is held liable for the same. But in certain cases, there are some general defences available to the defendant. By taking the plea of general defences the defendant can avoid his liability.

The General Defences which are available under law of tort are:

Private Defence
Inevitable accidents
Vis Major (Act of God)
Necessity
Statutory Authority

Common Negligence

Private Defence:

Law permits a person to use reasonable force for private defence. It means that a person can use reasonable force for the protection of his body or property. Thus, the damages caused by the defendant in defending his own or another person’s body or property is justified. When there is an imminent to one person’s body or property then he would be justified to use reasonable force for his protection. But it is necessary that the danger must be instant and real.

Bird vs Holbrook[i], the defendant applied spring guns in the fencing of his garden so that the trespasser cannot enter into the field but he didn’t put any notice or warning for the same and a child trespasser got serious injuries from those spring guns. The defendant took the plea of self-defence but the court rejected his plea on the ground that the force used by the defendant was greater than the occasion demanded.

Sitaram vs Jaswant Singh[ii], the defendant was an occupier of land and he gave an axe blow to the other person who had trespassed into his land. Because of that blow, the vital part of trespasser’s body was seriously injured. The defendant took the plea of self-defence but the court rejected the plea on the ground that the force used by the defendant was excessive as the plaintiff was not in possession of any weapon.

Farrington vs Munisami[iii], in order to prevent the trespassing of pings into his potato field the defendant put some traps around his field but due to those traps, a cow of the plaintiff was killed. In this case, the defendant was not held liable and he got the defence of self-defence.

Humps vs Darby[iv], in this case the defendant shoots the pigeon of neighbor for saving his peas from damage and he took the plea of self defence but the court rejected the plea and laid down that the act of defendant is not justified unless there is no other way available for preventing the crops.

Inevitable Accidents:

An inevitable accident can be defined as a mishap or an event that could not have been avoided by any degree of care that could not have been taken by the defendant under the circumstances in which he was placed.

Brown vs Kendall[v], the dogs of the plaintiff and the defendant were fighting and the defendant hit the plaintiff while he was trying to separate them. Due to this plaintiff’s eye got injured and he filed a suit against the defendant. In this case, the court gave the defence of inevitable accident to the defendant and held that the defendant was not liable as the plaintiff’s injury was purely accidental.

Stanley vs Powell[vi], the plaintiff and defendant went for pheasant shooting. But the defendant’s shoot was glanced off an oak tree and caused injury to the plaintiff. In this case, the defendant got the defence of inevitable accidents and he was not held liable.

Padmavati vs Dugganaika[vii], in this case, two strangers took a lift from the defendant but in the mid-way the bolts of the right wheel of jeep suddenly gave way and the wheel went off the jeep because of which the jeep met with an accident. Due to this, the two strangers were injured and one of them was subsequently died. The court held that the defendant is not liable and he got the defence of inevitable accident because the defect in the jeep was such which couldn’t be discovered by periodical checkup of the vehicle.

In Rylands vs Fletcher, it was held that inevitable accidents cannot be taken as defence in cases where the claim is based on absolute liability.

Vis Major (Act of God):

The act resulting out of overwhelming operations of natural forces such as extraordinary earthquake, rainfall, volcano etc. are termed as “act of god”. These acts are beyond human contemplations and intervention. Btu for taking this as defence three conditions must be satisfied and these are:

It must be the result of natural cause
It should be extraordinary in nature
It should not be within human contemplation

Federick Pollock termed it as damnum Fatale.

Nichols V. Marshland[viii], the defendant has some artificial lakes in his land which were overflooded due to extraordinary rainfall due to which the embankments of lake were broken which cause damage to the plaintiff’s land. The court held that the defendant is not liable for damage and he got the defence of “Act of God”.

Kallulal vs Hemchand[ix], in this case, the wall of the defendant feels down due to 2.66 rainfall in a day and because of those two children of the plaintiff died and he filed a suit against the defendant. He took the plea of “Act of God” but the court rejected the same on the ground that 2.66 inches rainfall in a day is not an extraordinary thing which a human being can’t contemplate, thus the defendant was held liable to pay damages to the plaintiff.

T. Gajya Laxmi vs Secretary, P.W.D, Tamilnadu, Madras[x], in this case, the legal representatives of the deceased sued the Electricity Board because the victim died due to the falling of live wire upon him which was disconnected from the pole due to heavy rain and storm. The Electricity Board took the plea of Act of God but the court rejected the defendant’s plea and held it liable.

Necessity:

There is a proverb that “necessity knows no law”, which in other words means causing lesser harm is always justified to avert a bigger loss or damage. Thus, the defence of necessity allows a person to do an act which may be wrongful or harmful but is justified for preventing major damage.

The defence of necessity may be available in 3 Categories of Cases:

Cases of public necessity
Cases of private necessity
Cases where assistance is rendered to a 3^rd person without his consent as a matter of necessity.

Southport Corporation V. ESSO Petroleum Co. Ltd[xi], the engine of the ship failed in mid-sea. The defendant, therefore, liberated the petrol in the fishing area of the plaintiff’s corporation thereby causing damage to the plaintiff. The court held that defendant is not liable and he acted out of necessity.

Kirk vs Gregory[xii], in this case the jeweller of the deceased person was removed by her sister-in-law and she gave the reason that she took those jewels because those were unsafe and kept that in another and those jewels were stolen. Thus, the suit was filed against the lady and she took the plea of necessity but the court rejected the same.

Statutory Authority:

Any person cannot complain about any of the danger or harm suffered by him/her will not be actionable if it is statutory enactment. It does not provide immunity from the liability of direct consequence of such act but also immunizes the incidental harm resulting from those acts.

Vaughan vs Taff Vale Rail Co.[xiii], in this case, the appellant’s woodgot fired because of the sparks emitted from the steam engine of the defendant’s railway company and that company had proper authority to run the train. The court held that the railway company was not liable as there were spark resisters installed and the sparks have emitted even after taking reasonable care and the company was authorized thus the defendant got the defence of statutory authority.

Nirmal Chand Sanyal vs Patna Municipality[xiv], the Municipality was statutorily authorized to construct a hackney stand, in the corner of a lane which was strongly opposed by the residents on the ground that it would be a cause of nuisance disturbing their peace. The court dismissed the objection and held that the defendant’s act of setting us hackney stand was justified in the larger interest of the public.

Volenti non-fit injuria:

Consent is a good defence in law of tort. It can be expressed by a Latin maxim “volenti non-fit injuria”, which means that if a person voluntarily consented to a wrongful act, then he cannot sue the defendant for the loss or injury suffered by him.

The consent may be express or implied. For example, if a person has consented to an operation, then he cannot sue the surgeon for the tort of battery.

Hall vs Brooklands Auto Racing Club[xv], in this case the plaintiff was a spectator of a car race which was held at the brooklands on a track whose owner was the defendant company. During the race, there was a collision between the two cars, one of which was thrown among the spectator and because of the same the plaintiff got injured. He sued the defendant company for damages but the defendant was not held liable as the defendant got the defence of “Volenti non-fit injuria”.

T.C. Balkrishanan vs T.R. Subramaniam[xvi], on the day of festival the defendant organized an open firework show and the plaintiff was also a spectator of that but one of the explosives instead of flying straight flying into the sky moved tangentially into the crowd and burst there due to which the plaintiff was injured thus, he filed a suit against the defendant. And in this case, the defendant did not get the defence of free consent but he was held liable for negligence.

R vs Williams[xvii], in this case, the accused was held guilty of rape. He was music teacher who sought the consent of 16 years old minor girl for sexual intercourse by making her believe that such an act was an act necessary to improve her voice.

Here in this case the consent was obtained by misrepresentation and undue influence thus the consent of the victim was not free. That is why consent cannot be taken as a defence in cases where it is obtained by fraud, undue influence, misrepresentation, mistake or coercion.

[i] (1823) 4 Bing 628

[ii] (1951) Nag LJ 477

[iii] (1949) 2 MLJ 143

[iv] (1948) 2 AER 474 (CA)

[v] (1859) 6 Cusing 292

[vi] (1891) 1 QB 86

[vii] (1975) 1 Kant. LJ 93

[viii] (1876) 2 Ex D 1

[ix] AIR 1958 MP 48

[x] AIR 1997 Mad. 263

[xi] (1954) 2 KB 182 CA

[xii] (1976) 1 ExD. 55.