Cheat Sheet: Defences in Tort Law

1. General Defences

1.1 Volenti Non Fit Injuria (Consent)

• Hall v. Brooklands Auto Racing Club: Spectator injured by car crash; no liability as risk inherent in watching race
• Wooldridge v. Sumner: Photographer injured at horse show; rider not liable for error of judgment in competition
• Padmavati v. Dugganaika: Passenger traveling free in lorry; consent implied but not to reckless driving
• Consent to illegal act does not bar action (boxing match with intent to cause grievous hurt)
• Rescue cases: Rescuer does not consent to risk created by defendant's negligence

1.2 Plaintiff the Wrongdoer (Ex Turpi Causa Non Oritur Actio)

• Bird v. Holbrook: Spring gun case; trespasser recovered as force used was disproportionate
• Ashby v. White: Returning officer wrongfully refused vote; plaintiff recovered despite no damage proof
• Joint participation in crime: Both parties barred from suing each other arising from that crime

1.3 Inevitable Accident

• Stanley v. Powell: Bullet ricocheted off tree and injured plaintiff; held inevitable accident
• Brown v. Kendall: Stick accidentally hit plaintiff while separating fighting dogs; inevitable accident
• Distinguished from Act of God: Inevitable accident involves human agency
• Not available if defendant could have avoided harm by taking reasonable precautions

1.4 Act of God (Vis Major)

• Nichols v. Marsland: Artificial lakes burst due to unprecedented rainfall; defendant not liable
• Greenock Corporation v. Caledonian Railway: Heavy rainfall foreseeable; defendant liable for not providing adequate drainage
• Ramalinga Nadar v. Narayana Reddiar: Fire spread due to unprecedented wind velocity; Act of God
• Must be beyond human foresight and control; ordinary natural events excluded
• Defense fails if defendant's negligence combined with natural event caused harm

1.5 Private Defence

• Force used must be reasonable and proportionate to threat
• Cannot use excessive force; spring guns and deadly traps not permitted
• Bird v. Holbrook: Spring gun for protecting property; excessive force held unlawful
• Danger must be imminent; preemptive action without immediate threat not justified
• Must be defensive, not retaliatory; revenge not covered
• Right to eject trespasser using minimum necessary force

1.6 Necessity

1.6.1 Public Necessity

• Esso Petroleum v. Southport Corporation: Ship discharged oil to prevent sinking; public necessity
• Cope v. Sharpe: Entry on land to prevent fire spreading; justified by necessity
• Destruction of property to prevent epidemic spread
• Pulling down houses to prevent fire spread
• No compensation payable when genuinely acting for public benefit

1.6.2 Private Necessity

• Mouse's Case: Entry on another's land to save one's goods; trespass justified but damage compensable
• Leigh v. Gladstone: Forcible feeding of prisoner on hunger strike; necessity defense
• Medical treatment without consent in emergencies
• Defendant may be liable for damage caused despite defense being available

1.7 Mistake

• Ranson v. Kitner: Defendant killed plaintiff's dog mistaking it for wolf; liable despite honest mistake
• Consolidated Co. v. Curtis & Sons: Removed plaintiff's fixture by mistake; no defense
• Mistake not a defense in strict liability torts (conversion, trespass to goods)
• May be defense in defamation if based on reasonable grounds
• Honest belief defense applicable in malicious prosecution if reasonable cause shown

2. Specific Statutory Defences

2.1 Statutory Authority

• Legislature cannot authorize without remedy unless expressly stated or necessarily implied
• Vaughan v. Taff Vale Railway Co.: Sparks from railway engine caused fire; liability if negligence shown
• Hammersmith Railway Co. v. Brand: Vibrations from authorized railway; no liability as statutory immunity
• Defense fails if defendant acts negligently or beyond statutory authority
• Compensation provisions in statute may indicate damage contemplated

2.2 Judicial and Executive Acts

2.2.1 Judicial Acts

• Immunity protects administration of justice from vexatious litigation
• Extends to statements made by parties, witnesses, counsel during proceedings
• Distinguished from ministerial acts which enjoy no immunity

2.2.2 Executive/Quasi-Judicial Acts

• Administrative officers protected for acts done in official capacity if acting in good faith
• Notice requirement under statutes before suit (Sections 79-80, CPC)
• Protection under Section 197 CrPC for public servants acting in official capacity
• State of Rajasthan v. Vidhyawati: State liable for negligent driving by government servant

2.3 Parental and Quasi-Parental Authority

• Force must be moderate, reasonable, and administered in good faith
• Excessive or cruel punishment not protected
• Shifting away from corporal punishment; many jurisdictions have abolished
• Authority does not extend to causing injury or humiliation

3. Defamation-Specific Defences

3.1 Justification (Truth)

• Substantial truth sufficient; minor inaccuracies do not defeat defense
• Each defamatory charge must be justified separately
• No requirement to prove malice irrelevant if statement true
• Section 6, Defamation Act, 1952 (England): Truth of main charge sufficient

3.2 Fair Comment

• Merivale v. Carson: Comment on published play protected as fair comment
• Distinguished from allegation of fact; must be recognizable as comment/opinion
• Criticism may be severe or prejudiced if honest belief held
• Applies to matters of public interest: books, art, performances, government actions
• Inference of bad motive defeats defense

3.3 Privilege

3.3.1 Absolute Privilege

• Protection regardless of malice or falsity
• Rationale: Public interest in freedom of speech in specific contexts
• Must be within scope of proceedings; extrajudicial repetition not protected

3.3.2 Qualified Privilege

• Defeated by proof of malice (spite, ill-will, improper motive)
• Communication must be to proper person, not published widely
• Toogood v. Spyring: Statements made in discharge of duty or protection of interest
• Excess of privilege: Statement beyond necessary scope loses protection
• Reciprocity: Both communicator and recipient must have interest or duty

4. Nuisance-Specific Defences

4.1 Defences Not Available

• Bamford v. Turnley: Brick-burning causing discomfort; no defense that beneficial to public
• Sturges v. Bridgman: Coming to nuisance not defense; confectioner liable despite prior operation
• Each contributor to nuisance liable; joint and several liability

4.2 Valid Defences in Nuisance

4.2.1 Prescription

• Continuous nuisance for 20 years acquires right by prescription
• User must be as of right (nec vi, nec clam, nec precario): not by force, stealth, or permission
• Clock starts when actionable nuisance begins
• Cannot prescribe for illegal acts

4.2.2 Statutory Authority

• Express statutory authorization protects if no negligence
• Inevitable consequences of authorized act protected
• Compensation provisions in statute indicate damages contemplated

4.2.3 Act of Stranger

• Nuisance created by independent third party may excuse occupier
• Must show no control over stranger's actions
• Liability if occupier adopted or continued nuisance
• Duty to abate nuisance once aware, especially natural nuisances

5. Negligence-Specific Defences

5.1 Contributory Negligence

• Butterfield v. Forrester: Plaintiff riding violently could not avoid obstruction; complete bar
• Davies v. Mann: Last opportunity rule; defendant with last chance liable despite plaintiff's negligence
• Law Reform (Contributory Negligence) Act, 1945: Proportionate reduction of damages
• Section 3, Indian Fatal Accidents Act, 1855: Contributory negligence reduces compensation
• Children held to lower standard; age and capacity considered
• Emergency situations: Plaintiff not expected to exercise highest care

5.2 Apportionment under Contributory Negligence

• Nance v. British Columbia Electric Railway: Damages apportioned based on respective blameworthiness
• Mere carelessness for own safety may constitute contributory negligence
• Failure to wear seat belt or helmet may reduce damages
• Onus on defendant to plead and prove contributory negligence

5.3 Volenti Non Fit Injuria in Negligence Context

• Mere knowledge of danger insufficient; must show voluntary acceptance of risk
• Smith v. Baker: Employee aware of danger but not consenting; employer liable
• Rescue cases: Rescuer does not consent to risk created by defendant
• Drunken passenger cases: Courts reluctant to apply; contributory negligence preferred
• Express exclusion clauses scrutinized; unfair contract terms legislation limits applicability

6. Comparative Table of Defences

7. Key Distinctions

8. Important Case Law Summary