GENERAL DEFENSES
The defendant is generally liable to pay damages to the plaintiff for the tort committed by him [defendant],if the plaintiff is able to prove that the wrong committed by the defendant comes well within the essentials and scope of any of the torts.
However, the defendant can avoid his liability his liability by taking the plea of some defenses.
The following are some of the specific defenses available to the defendant:
In other words,the defendant can raise the following defenses in a tort:
1. VOLENTI NON FIT INJURIA [LEAVE AND LICENCE]
2. INEVITABLE ACCIDENT
3. ACT OF GOD
4. NECESSITY
5. MISTAKE
6. PRIVATE DEFENSE
7. PLAINTIFF-THE WRONGDOER [EX TURPI CAUSA NON ORITUR ACTIO]
8. STATUTORY AUTHORITY
INTRODUCTION:
Volenti non fit injuria means 'where there is consent,there is no injury; An act is not actionable as a tort at the instance of any person who has expressly or impliedly consented to it. The principle is based is based on 'justice and good conscience;
This maxim has double application. In the first place,it applies to intentional acts which would otherwiise be tortious.
In the second place, it applies to cases of consent to run the risk of accidental harm,which would otherwise be actionable due to the negligence of the person,who caused the accident.
Hall vs. Brooklands Auto Racing Club:
Hall was a spectator in a car race. Two cars collided and Hall was injured in the collision.In an action for damages,since he had given implied consent to run the risk,he was not entitled to recover damages.
Examples:
1. A patient who has voluntarily entered a nursing home for an operation cannot sue the Doctor for false imprisonment.
2. A player in the games of Hockey, Cricket or Football cannot compliain if he gets hurt during the game,provided the rules of the game are scrupulously followed.
3. Spectators in 'sports events' cannot complain area.
The maxim is 'Volenti non fit injuria' [i.e, implied consent to face the risk] and not 'Scienti non fit injuria' [i.e, implied knowledge to face the risk]
The maxim is applicable to run risk.
Mere knowledge of the risk is not sufficient to constitute the consent. The person injured must have knowledge of the risk and must voluntarily undertake and agree to face the risk.
Smith vs. Charles Bakers& Sons:
Baker & Sons appointed Smith for cutting stone rocks. The stones were conveyed from one end of the quarry to the other end, by cranes. Smith and Bakers knew that there was chance of the stones falling down. Smith was injured by the fall of a stone.
The Court held that Smith could claim damages,as he had only knowledge of the rick,but he has not given either implied or express consent to face the rick. Here, the maxim 'volenti non fit injuria' and not 'scienti non fit injuria' is applicable.
ESSENTIALS OF VOLENTI NON FIT INJURIA
1. There must be an express or implied consent to face the risk. The consent must be free. If the consent of the plaintiff is obtained by fraud, compulsion, or mistake induced by the defendant, then it is not consent and it does not act as a defense also. Since a minor cannot give valid consent, the doctrine is not applicable to minors.
2. The injury or loss must not be caused by the willful intention of the defendant.
3. The defendant should not be negligent. If he is negligent, this doctrine is not applicable.
E.g: Dann Vs. Hamilton,
4. This doctrine is not applicable to illegal acts.
E.g: Illegal gunfight, sword fight, ect.
5. This maxim is not applicable to 'rescue cases' or case of 'saving persons in danger'
Barandon Vs. Osborne
The plaintiff and her husband were making purchases in front of a shop. The plaintiff noticed the fall of a sky light from the roof. She pulled her husband and in doing so, she sustained muscular injury. She brought an action against the defendant, namely the shop-keeper for compensation.
The defendant contended that the plaintiff had given consent to face the risk by her of pulling her husband and hence the maximum 'volenti non fit injuria' is applicable and compensation is not payable.
However, the court held that the maxim is not applicable to cases of negligence, and hence the plaintiff can get compensation. It further said that the maxim is not applicable to cases of saving persons in danger.
Dann Vs. Hamilton
The plaintiff offered to travel in a taxi. The driver was one Mr. Hamilton, who was drunk. Even though he was drunk, he had the capacity to exercise care.
Due to the negligence of the driver, the taxi met with an accident, the driver was killed and the plaintiff was injured. The plaintiff sued the taxi driver's wife for compensation for the sustained by her.
The taxi driver's wife contented that the plaintiff has consented to face the risk, as she had the knowledge that the driver is drunk. She invoked the doctrine of 'Volenti non fit injuria'.
But the Court held that the plaintiff had not consented to the carelessness of the driver and more over , the doctrine is not applicable to rescue cases. The plaintiff could recover damages.
CONSENT OBTAINED BY FRAUD
Here, the defendant must prove that the plaintiff's consent was voluntary or free. Consent obtained by fraud is not a valid consent and hence a consent obtained by fraud cannot be a defence for the defendant.
R Vs. Williams
The accused, was a music teacher. he was teaching music lessons to a girl student of 16 years of age. Under the pretense that his act of sexual intercourse with her would improve her voice, he had sexual intercourse with her. The Court held that the mistake which the fraud had induced her to have sexual intercourse with him was not such that it would go to the real nature of the act done and hence is act could not be considered as an element affecting the consent.
R Vs. Clarence
The Court held that the husband was not liable for any offences when he had sexual intercourse with his wife and infected her with venereal disease, even though he had not informed her about this infection earlier.
Thus, under Criminal law, fraud affected consent only if it induces as the real nature of the act done .
The same rule is applicable to the tort of battery and assault.
2. INEVITABLE ACCIDENT
It is an accident which could not be avoided even after the exercise of ordinary care and caution of the defendant. In simple terms, it is an accident which cannot be avoided despite the exercise of ordinary care and caution.
If the injury or loss is due to unavoidable circumstances beyond the human control, then for such injuries, a person cannot be sued under the tort of negligence.
Moreover, the accident could not have been foreseen and could not be prevented by the exercise of ordinary care and caution.
The plea of inevitable accident is a defense in cases of negligence,assault and battery. If the injury or loss is due to unavailable circumstances,then it is not a tort. However, it is not a defense in cases of strict absolute liability.s
E.g: Dust falling in the eyes of a driver and the subsequent result of an accident, dashing with one another in a crowded area despite of extreme care and caution are instances of inevitable accident
CASE LAWS:
* Brown Vs. Kendall
The defendant accidentally hit the eye of the plaintiff when he was beating his dogs, which where fighting with one another. As it was purely an accident,the plaintiff could not recover damages.
* Fardon Vs. Harcourt Rivington
The defendant had left his dog inside his cat, which was parked on the street. The plaintiff was walking near the car and due to that the dog barked and jumped, thereby smashing the glass window. A glass piece entered the plaintiff's eye and he claimed damages. The Court held that he could not recover any damages, as it was purely an accident.
* Stanley Vs. Powell
The Plaintiff and the defendant went for pheasant shooting. The defendant fired at a pheasant, but the shoot from his gun bounced off an oak and injured the plaintiff. The Court held that injury was due to inevitable accident and hence the defendant was not liable.
3. ACT OF GOD
It closely resembles the defense of inevitable accident. The loss or injury is due to the working of natural sources beyond the power of any human being and which could not be reasonably expected.
'Act of God' is an accident which is due to natural causes directly and exclusively without human intervention and that could not be prevented or averted by the exercise of human care, caution and control.
E.g: Storm, tempest, lightning, extraordinary fall of rain, high tide, severe frost,etc.
'Act of God' is a good defense to the rule of Strict liability or 'Rule in Rylands Vs. Fletcher' .
CASE LAW
Nicholas Vs. Marsland
The defendant was the owner of some pools on his land.The pools and their let-outs were constructed without any negligence. A heavy and violent storm broke down the embankments and water flowed out and damage was caused. Since the water had escaped only due to 'Act of God'beyond any human control,the Court held that the defendant was not liable.
4. NECESSITY
Any act causing damage, if done under necessity to prevent a greater evil,is not actionable,even though harm was caused intentionally. The basis for accepting 'necessity' as a defense, is the maintenance of public good and self-protection.
CASE LAW
Cope Vs. Sharpe
The defendant trespassed on the plaintiff's land to prevent the spreading of fire.The Court held that the defendant was not liable, because he acted under necessity.
5. MISTAKE
Here, there is an admission that the act and its consequences were intended, but the defendant, acted under an erroneous belief formed on reasonable grounds.
MISTAKE OF LAW [IGNORANTIA JURIS]
Is not excusable in Crimes and Torts. 'Ignorantia Juris non excusat' is the maxim i,e, ignorance of law or mistake of law is no excuse.
MISTAKE OF FACT [ IGNORANTIA FACTUM ]
This is excused under the IPC but not so in torts. So even if a person acted under a mistake of fact, but his act caused harm to another, then he is liable to pay compensation for such harm caused.
E.g: A man executing a wrong arrest is excused in IPC under mistake of fact, but in tort, he is liable for the tort of false imprisonment.
CASE LAW
Marrison Vs. Ritchie
A newspaper Eproprietor erroneously published that the plaintiff has given birth to twins, whereas she got married only a month before. The court held that the Proprietor was liable, even though he had acted under mistake of fact.
Mistake is a defense in the following instances
* Mistaken prosecution of an innocent person.
* Mistaken arrest of an innocent person on suspicion of felony.
* Mistaken honest statements on privileged occasions.
6. PRIVATE DEFENSE
Private defense is the right of every person to defend his own person or property and that of his near relatives.
If the plaintiff attacks the defendant, then he can defend himself against such attack. The plaintiff may be a competent or an incompetent person.
E.g: Lunatic Private defense is a self-help.
ESSENTIALS
* The force applied must be proportionate to the harm anticipated.
* In private defense to property, the defendant should be in actual possession of the property or atleast must have a right over it.
* Reasonable steps can be taken by a person to protect his property.
CASE LAWS
Bird Vs. Holbrook
The defendent had fixed spring guns in his garden without fixing any notice. A trespasser sustained serve injuries due to the gun shot and hence he had sued for compensation.
The Court held that since the force used by the defendent is greater than what is required, he had to pay damages.
Morris Vs. Nugent
When the defendant was passing by the plaintiff's house, the plaintiff's dog ran and tore the defendant clothes covering his ankle. The defendant raised his gun to shot the dog, but the dog ran way. Even then ,the defendant did not stop and he shot the dog dead even while it was running way.
The Court held that the defendant had used excess force and hence liable to compensate the plaintiff.
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