General Defences under Law of Torts | Law Optional Notes for UPSC PDF Download

Introduction

When a defendant is accused of committing a tort and all the necessary elements of that wrongdoing are present, the defendant may be deemed responsible. However, in such situations, the defendant can escape liability by invoking the defenses provided by tort law.
Certain defenses are specific to particular offenses. In the context of defamation, available defenses include fair comment, privileges, and justification, among others.
Now, let's explore these defenses within the framework of tort law and understand how they can be invoked, along with reference to some significant cases.

Meaning of General Defences 

When a plaintiff files a lawsuit against a defendant for a tort committed by the defendant, the defendant can be held responsible if all the necessary elements for that wrongdoing exist. However, there are certain defenses at the defendant's disposal that can absolve them from the liability arising from the committed wrong. These defenses are referred to as "General defenses" in tort law.

The available defenses are outlined below:

• Volenti non fit injuria or the defense of 'Consent.'
• The wrongdoer is the plaintiff.
• Inevitable accident.
• Act of God.
• Private defense.
• Mistake.
• Necessity.
• Statutory authority.

Volenti non fit injuria

• In situations where a plaintiff willingly subjects themselves to harm, they have no legal recourse under tort law and are not permitted to file a complaint. This defense is based on the principle that an individual cannot assert a right that they have knowingly abandoned or waived. Consent to endure harm can be either explicitly expressed or implied.
• Some instances of this defense include:
  • When you invite someone to your house, you cannot sue your guests for trespass.
  • If you consent to a surgical operation, you cannot sue the surgeon for it.
  • If you agree to the publication of information you were aware of, you cannot sue for defamation.
  • A player in a sports game is considered willing to endure any harm that might occur during the game.
  • A spectator at a cricket match cannot seek compensation for any injuries sustained.
  • For this defense to be applicable, the act causing harm should not exceed the scope of what was consented to.
• For instance, in the case of Hall v. Brooklands Auto Racing Club, a spectator at a car racing event was injured when a car involved in the race was thrown into the audience. The court ruled that the plaintiff had knowingly assumed the risk of watching the race, and the defendant was not liable as the injury was foreseeable by anyone watching the event.
• In the case of Padmavati v. Dugganaika, two strangers took a ride in a jeep, which later toppled and caused them injuries. The master of the driver was not held liable because it was a pure accident, and the strangers had voluntarily entered the vehicle. The principle of Volenti non fit injuria did not apply in this case.
• In Wooldridge v. Sumner, a plaintiff was taking pictures near the boundary of an arena when the defendant's horse approached, causing the plaintiff to fall into the horse's path and suffer injuries. The defendants were not found liable because they had taken proper care and precautions.
• In the case of Thomas v. Quartermaine, a brewery employee suffered injuries when a lid he was attempting to remove from a boiling tank of water caused him to fall into a container of scalding liquid. The defendant was not held liable as the danger was visible, and the plaintiff had voluntarily engaged in an action that led to his injuries.
• In Illot v. Wilkes, a trespasser was injured by spring guns on the defendant's property. Since the trespasser knowingly assumed the risk and subsequently suffered injuries, the defendant was not held liable.
• Similarly, having a dangerous dog at home or broken glass pieces at property boundaries is not actionable and falls outside the scope of this defense.

The consent must be free

• To establish this defense, it is crucial to demonstrate that the plaintiff's consent was willingly and freely provided. If the consent was obtained under duress or through fraud, it does not qualify as a valid defense. The consent must specifically pertain to an action carried out by the defendant.
• For instance, if you invite someone to your house for dinner and they enter your bedroom without permission, they can be held liable for trespass.
• In the case of Lakshmi Rajan v. Malar Hospital, a 40-year-old married woman discovered a lump in her breast that did not affect her uterus. However, after surgery, she discovered that her uterus had been removed without justification. The hospital authorities were held accountable for this action because the patient had given consent for the operation but not for the removal of her uterus.
• If an individual is unable to provide consent due to their condition, then the consent of their legal guardian is deemed sufficient.

Consent obtained by fraud

• Consent obtained through fraud is not considered genuine consent and is not a valid defense.
• In the case of Hegarty v. Shine, it was determined that mere concealment of facts does not amount to fraud that would invalidate consent. For instance, in this case, the plaintiff's lover had infected her with a venereal disease, and she brought an assault action against him. The action failed because simply withholding information does not constitute fraud, based on the legal principle ex turpi causa non oritur actio, which means that no action arises from an immoral cause.
• In certain criminal cases, mere submission does not imply consent if it was obtained through fraud, leading to a misconception in the victim's mind about the true nature of the act. However, if the fraud-induced mistake does not create a false impression about the actual nature of the act, it does not vitiate consent.
• In the case of R. v. Williams, a music teacher was found guilty of raping a 16-year-old girl, leading her to believe that the act was meant to improve her throat and enhance her singing voice. The girl misunderstood the true nature of the act, and her consent was given under the mistaken belief that it was a surgical operation to improve her voice.
• In the case of R. v. Clarence, a husband was not held liable for an offense when his intercourse with his wife resulted in her contracting a venereal disease. The husband had failed to inform his wife about the disease. In this case, the wife was fully aware of the nature of the act itself, and her lack of awareness pertained only to the potential consequences.

Consent obtained under compulsion

• There is no consent when someone consents to an act without free will or under some compulsion.
• It is also applicable in the cases where the person giving consent does not have full freedom to decide.
• This situation generally arises in a master-servant relationship where the servant is compelled to do everything that his master asks him to do.
• Thus, there is no applicability of this maxim volenti non fit injuria, when a servant is compelled to do some work without his own will. 
• But, if he himself does something without any compulsion then he can be met with this defence of consent.

Mere knowledge does not imply assent

• Mere knowledge of a risk does not imply consent to that risk. To apply this principle, the following conditions should be met:
  • The plaintiff must have been aware of the risk's presence.
  • The plaintiff had knowledge of the risk and willingly accepted the potential harm.
• In the case of Bowater v. Rowley Regis Corporation, a cart driver was asked to handle a horse that was known to be prone to bolting. Despite his reluctance, he followed his master's orders and drove the horse, which subsequently bolted and caused injuries to the driver. In this case, the plaintiff was entitled to seek compensation.
• In Smith v. Baker, the plaintiff was employed to operate a drill used for cutting rocks. While working, stones were being moved overhead by a crane, and one of these stones fell on the plaintiff's head, causing injuries. The defendants were found negligent as they had not informed the plaintiff of the risk. The court ruled that having mere knowledge of the risk did not imply consent to it, and the defendants were held liable. The maxim volenti non fit injuria did not apply in this case.
• However, if a worker disregards their employer's instructions and, as a result, sustains an injury, this maxim may apply.
• In Dann v. Hamilton, a woman chose to travel in a car with a driver she knew was intoxicated. Due to the driver's negligent behavior, an accident occurred, resulting in the driver's death and injuries to the passenger. The passenger brought a claim for her injuries against the driver's representatives, who raised the defense of volenti non fit injuria. However, the claim was not rejected, and the lady passenger was entitled to compensation. In this case, the maxim was not considered because the driver's level of intoxication was not so obvious as to make it clear that taking a ride constituted consent to an apparent danger.
• This decision faced criticism for not considering contributory negligence, but the court's rationale for not doing so was that it had not been pleaded in the case. A driver's previous negligent actions do not deprive them of this defense if someone chooses to travel with them again.

Negligence of the defendant

• For this defense to be applicable, it is essential that the defendant is not negligent. When a plaintiff consents to a certain risk, it is presumed that the defendant will not be held liable.
• For instance, if someone consents to a surgical operation that later proves to be unsuccessful, the plaintiff generally has no legal basis to file a lawsuit. However, if the operation's failure results from the surgeon's negligence, the plaintiff may have grounds to claim compensation.
• In the case of Slater v. Clay Cross Co. Ltd., the plaintiff sustained injuries due to the negligent actions of the defendant's employee while she was walking along a tunnel owned by the defendants. The company was aware that the tunnel was used by the public and had instructed its drivers to use their horns and drive slowly when entering the tunnel. However, the driver failed to follow these instructions. As a result, the court held the defendants liable for the accident.

Limitations on the doctrine’s scope

The application of the maxim volenti non fit injuria has been limited in the following circumstances:

• Rescue Cases: When a plaintiff voluntarily comes to the rescue of someone in danger created by the defendant, the defense of volenti non fit injuria cannot be used by the defendant to absolve liability. For example, if a person willingly attempts to stop a horse that poses no danger, he cannot seek a legal remedy.
• Haynes v. Harwood: In this case, a defendant's servant left horses unattended in a public street, which led to a dangerous situation when a boy threw a stone at the horses. A constable intervened to protect people and got injured in the process. Since this was a rescue case, the defense of volenti non fit injuria was not available, and the defendants were held liable.
• Wagner v. International Railway: A railway passenger was thrown out of a moving train due to negligence, and his friend went to find him, fell from a bridge in darkness, and suffered injuries. The railway company was held liable because it was a rescue case.
• Baker v. T.E. Hopkins & Son: In this case, a well of a petrol pump was filled with poisonous fumes due to the employer's negligence. Dr. Baker tried to save two workmen despite the risk and died. The defendants pleaded the defense of consent, which was not accepted, and they were held liable.
• If someone knowingly creates danger for themselves and expects rescue, they are liable to the rescuer.
• Hyett v. Great Western Railway Co.: The plaintiff was injured while saving the defendant's cars from a fire due to the defendant's negligence. The defendant was held liable because the plaintiff's actions were deemed reasonable.

Unfair Contract Terms Act, 1977 (England)

This act restricts a person's ability to exclude liability for their negligence in a contract.

• Negligence Liability
  • Under subsection 1, a person cannot exclude liability for death or personal injury resulting from negligence by contract or notice.
  • Subsection 2 applies to cases where the damage is other than personal injury or death. In such cases, liability can only be avoided if a contract term or notice meets the criteria of reasonableness.
  • Subsection 3 stipulates that while a mere notice or agreement may be sufficient to prove that the defendant was not liable, additional evidence regarding the genuine voluntary assumption and the plaintiff's consent should also be provided.

Volenti non fit injuria and Contributory negligence 

• Volenti non fit injuria is a complete defence but the defence of contributory negligence came after the passing of the Law Reform (Contributory Negligence) Act, 1945. In contributory negligence, the defendant’s liability is based on the proportion of fault in the matter.
• In the defence of contributory negligence, both are liable – the defendant and the plaintiff, which is not the case with volenti non fit injuria.
• In volenti non fit injuria, the plaintiff knows the nature and extent of danger which he encounters and in case of contributory negligence on the part of the plaintiff, he did not know about any danger.

Plaintiff the wrongdoer

The Latin maxim "Ex turpi causa non oritur actio" means "from an immoral cause, no action arises." If a plaintiff's claim is based on an unlawful contract, they cannot succeed in their legal actions, and they cannot recover damages.
When a defendant argues that the claimant (plaintiff) is the wrongdoer and not entitled to damages, it doesn't mean the court will completely absolve the defendant of liability, but the defendant won't be liable under this circumstance.

• Bird v. Holbrook: In this case, the plaintiff sought damages for injuries sustained due to spring guns placed in the garden without any warning. The court held that the plaintiff was entitled to recover damages.
• Pitts v. Hunt: In this case, an 18-year-old rider encouraged his 16-year-old friend to drive recklessly under the influence of alcohol. They had an accident, and the driver died while the pillion rider suffered serious injuries. The pillion rider filed a compensation claim against the deceased person's relatives. The claim was rejected because the pillion rider was considered the wrongdoer in this situation.

Inevitable accident

An "inevitable accident" refers to an unforeseeable event or incident that cannot be prevented, even when the defendant has taken all reasonable care and precautions to avoid harm. This serves as a valid defense because it demonstrates that the injury was beyond the defendant's control, and there was no intention to harm the plaintiff.

• Stanley v. Powell: In this case, during a pheasant shooting, a defendant fired at a bird, but the bullet ricocheted off an oak tree and accidentally struck the plaintiff, causing serious injuries. The incident was deemed an inevitable accident, and the defendant was not held liable.
• Assam State Coop., etc. Federation Ltd. v. Smt. Anubha Sinha: The plaintiff rented her premises to the defendant, who requested repairs to faulty electrical wiring. However, the landlord did not address the issue, resulting in a short circuit and an accidental fire. The court ruled that this was an inevitable accident, and the tenant was not liable.
• Shridhar Tiwari v. U.P. State Road Transport Corporation: A bus from the U.P. State Road Transport Corporation faced a situation where a cyclist suddenly appeared in front of it, and rainy conditions made it impossible to stop the bus. This led to a collision with another bus coming from the opposite direction. No negligence was found on the part of either driver, and it was considered an inevitable accident. The U.P.S.R.T.C. was not held liable.
• Holmes v. Mather: The defendant's horse, driven by a servant, became uncontrollable due to barking dogs and started to bolt. Despite the driver's efforts, the horse knocked down the plaintiff. This was determined to be an inevitable accident, and the defendants were not liable.
• Brown v. Kendall: During a dog fight between the plaintiff's and defendant's dogs, the defendant tried to separate them and accidentally injured the plaintiff's eye. This incident was considered an inevitable accident, and the defendant was not held liable.
• Padmavati v. Dugganaika: The driver of a jeep, carrying two strangers as passengers, lost control of the vehicle due to a problem with the right wheel, leading to an accident and injuries to the passengers. This was deemed a sheer accident, and the master of the driver could not be held liable.
• Nitro-Glycerine case: Defendants received a wooden case with unknown contents for transport. They discovered a leakage in the box and brought it to their office for inspection. The box was filled with Nitro-Glycerine and exploded, damaging a building owned by the plaintiffs. The defendants were not held liable because the explosion was unforeseeable.
• Oriental Fire & General Ins. Co. Ltd. v. Raj Rani: The front right spring and other parts of a truck suddenly broke, causing a collision with a tractor. The driver and the owner of the truck could not prove they had taken reasonable precautions. This was considered a case of negligence, and the defendant was held liable.

Act of God

Act of God serves as a good defence under the law of torts. It is also recognized as a valid defence in the rule of ‘Strict Liability’ in the case of Rylands v. Fletcher.

The defence of Act of God and Inevitable accident might look the same but they are different. Act of God is a kind of inevitable accident in which the natural forces play their role and causes damage. For example, heavy rainfall, storms, tides, etc. 

Essentials required for this defence are:

• Natural forces’ working should be there.
• There must be an extraordinary occurrence and not the one which could be anticipated and guarded against reasonably.

Working of natural forces

• In the case of Ramalinga Nadar v. Narayan Reddiar, an unruly mob robbed all the goods that were being transported in the defendant's lorry. This incident cannot be considered an "Act of God." As a common carrier, the defendant is entitled to compensation for all the losses he suffered.
• In Nichols v. Marsland, the defendant created an artificial lake on his property by diverting water from natural streams. Following an extraordinarily heavy rainfall, the heaviest ever recorded, the embankments of the lake were destroyed, causing significant damage to the plaintiff's four bridges. The court ruled that the defendants were not liable for this damage as it was due to an "Act of God."

Occurrence must be extraordinary

• To successfully use the defense in tort law, there must be an extraordinary natural event or occurrence.
• In the case of Kallu Lal v. Hemchand, a building's wall collapsed due to a typical rainfall of approximately 2.66 inches. This incident led to the tragic death of the respondent's children. The court determined that the appellants could not invoke the Act of God defense in this case since the amount of rainfall was considered normal, and the defense requires an extraordinary event. Consequently, the appellant was found liable.

Private defence

Individuals are allowed by law to use reasonable force to protect their lives and property. This use of force is only considered lawful when it's in self-defense, and when there is an immediate threat to one's life or property. It's not justifiable to use force against someone simply based on a belief that they might pose a threat in the future.

The force used must also be reasonable and proportional to the imminent danger. For example, if someone attempted a robbery in a house, and the homeowner responded by immediately using lethal force, that response would not be considered justifiable under the defense of private defense.

When it comes to protecting property, the law permits only those measures that are necessary to prevent danger. Actions like repairing broken glass on a wall or keeping a guard dog are generally considered lawful.

In the case of Bird v. Holbrook, the defendant placed spring-loaded guns in his garden without warning signs, and a trespasser (the plaintiff) was injured when one of these guns went off. The court ruled that the defendant's actions were not justifiable, and the plaintiff was entitled to compensation.

Similarly, in Ramanuja Mudali v. M. Gangan, the defendant had live wires on his land without any warning signs, and the plaintiff, attempting to cross the land, suffered serious injuries from an electric shock. The defendant was held liable, and the use of live wires without proper notice was not considered justifiable.

In Collins v. Renison, the defendant pushed the plaintiff off a ladder, and when sued, claimed it was a gentle push. The court held that the use of force was not justifiable as a defense.

Mistake

Mistakes can fall into two categories: mistakes of law and mistakes of fact. In either situation, these mistakes do not serve as a defense for the defendant.

In certain situations, a defendant may claim the defense of mistake when they act under a genuine but mistaken belief. However, this defense does not always absolve them of liability under tort law.

For example, in the case of Morrison v. Ritchie & Co, the defendant mistakenly published a statement that the plaintiff had given birth to twins, believing this to be true. In reality, the plaintiff had only been married for two months. The defendant was held liable for defamation, and the good faith element of the mistake did not absolve them.

In Consolidated Company v. Curtis, an auctioneer mistakenly believed that the goods he was auctioning belonged to him, but the true owner of the goods filed a lawsuit for the tort of conversion. The court held the auctioneer liable and emphasized that a mistake of fact is not a valid defense in such cases.

Necessity

Necessity, as a legal defense, applies when an intentional act is performed to prevent a greater harm and is not considered actionable. It's important to differentiate necessity from private defense and inevitable accidents.

Key considerations include:

• In necessity, harm is inflicted upon an innocent party, while in private defense, the plaintiff is usually the wrongdoer.
• In necessity, harm is intentionally caused to prevent a more significant harm, whereas in an inevitable accident, harm occurs despite efforts to avoid it.
• For instance, performing a life-saving operation on an unconscious patient is justifiable under the necessity defense.

In the case of Leigh v. Gladstone, the forcible feeding of a hunger-striking person in prison was considered a valid defense against the tort of battery.

In Cope v. Sharpe, the defendant entered the plaintiff's property to prevent the spread of a fire in the adjacent land, where the defendant's employer had shooting rights. Since the defendant's actions aimed to prevent a more significant harm, he was not held liable for trespass.

In Carter v. Thomas, a defendant entered the plaintiff's property in good faith to extinguish a fire while firefighting personnel were already at work. The defendant was found guilty of trespass in this case.

In Kirk v. Gregory, a person's sister-in-law moved some jewelry to a different location after his death, thinking it would be safer. Unfortunately, the jewelry was stolen from there. The sister-in-law was held liable for trespass because her actions were deemed unreasonable.

Statutory authority

Statutory authority provides a legal defense for actions authorized by a statute or act. Even if such actions would otherwise constitute a tort, they are not considered actionable. This defense is complete, and the injured party's only recourse is typically to claim compensation as stipulated by the statute.

Statutory authority immunity doesn't just cover obvious harm but extends to incidental harm as well.

In Vaughan v. Taff Valde Rail Co., sparks from the respondent's railway company's engine, authorized for running the railway, accidentally ignited the appellant's adjacent woods. The court ruled that since the railway company complied with statutory provisions and exercised due care, they were not liable for the fire damage.

In Hammer Smith Rail Co. v. Brand, the value of the plaintiff's property diminished due to the loud noise and vibrations from trains running on a railway constructed under statutory provisions. The court held that the damage couldn't be claimed because it was in line with statutory provisions, and statutory authorization serves as a complete defense. The defendant was not held liable.

In Smith v. London and South Western Railway Co., the railway company's employees negligently left hedge trimmings near the railway line. Sparks from a passing engine caused the hedges to catch fire, and due to strong winds, the fire spread to the plaintiff's nearby cottage. The court found the railway authority negligent for leaving grass hedges near the railway line, and the plaintiff was entitled to seek compensation for the resulting loss.

Absolute and conditional authority

Authority granted by a statute can fall into two categories:

• Absolute Authority: Under absolute authority, there is no liability if a nuisance or harm necessarily results from the authorized action. In other words, the authorized action will lead to the harm, and it's considered lawful.
• Conditional Authority: Conditional authority means that the authorized action is permissible as long as it doesn't result in a nuisance or harm. If the authorized action causes harm or nuisance, it's not lawful.

In the case of Metropolitan Asylum District v. Hill, the hospital authorities (appellants) were given permission to establish a smallpox hospital. However, the hospital was situated in a residential area, and it posed a risk to the residents as the disease could potentially spread. Due to this nuisance, an injunction was issued against the hospital. In this case, the authority granted was conditional.

Conclusion

The purpose of this article is to underscore the significant role that General Defences play in mitigating one's liability in tort law. A comprehensive understanding of tort law involves an exploration of General Defences, which provide a set of justifications that can be used to avoid liability. When a plaintiff initiates legal action against a defendant for a specific tort, assuming all the essential elements of that tort are present, the defendant would typically be held liable. However, General Defences offer a range of "excuses" that can be employed to escape liability, depending on the circumstances and facts of a case.
To effectively use a defense, it is crucial to first grasp the nuances of that defense and then apply it appropriately to the given situation. In essence, a sound understanding of General Defences is integral to navigating the complex landscape of tort law.