Detail of GENERAL DEFENCES

GENERAL DEFENCES

GENERAL DEFENCES

Although particular specific torts may have particular special defences such as truth and fair comment to defamation. still there are certain general defences which are applicable to all torts. They are the following:

1.      Volenti non fit injuria - Harm suffered with the plaintiff's consent.

2.      Inevitable accident.

3.      Mistake.

4.      Private defence.

5.      Necessity.

6.      Statutory authority

Volenti non fit injuria

The literal meaning of the maxim is "that to which a man consents, cannot be complained of as an injury". Really it means that no act is actionable as a tort at the suit of any person who has expressly or impliedly assented to it. A person who makes an agreement with another, either expressly or by implication, to run the risk of injury caused by that other, will not be permitted to complain and claim damages for any of the risks that he had agreed to undergo.

     The maxim has a twofold application. In the first place it applies  to intentional acts which would otherwise be tortious, and refers to consent to an entry on land or goods which would otherwise be trespass. It also includes consent to physical harm which would otherwise be assault, as in the case of a boxing match or surgical operation or consent to the publication of a defamatory statement which would otherwise be actionable.

    Secondly, it applies to consent to run the risk of accidental harm which would otherwise be actionable. Thus, spectators at sports meetings take upon themselves the risk of the perils thereat, whether reasonably to be expected or improbable. In that case a spectator who had paid for admission to the defendant's racing track of automobiles was injured. The spectator sued the defendants who were held not liable.2

Process must not be unlawful

The maxim is inapplicable where the act is contrary to public policy. When persons with little regard to lives undertake operations which are too obviously dangerous and sustain grievous injuries, they will not be permitted to raise the plea of volenti non fit injuria. Nor will any party be entitled to recover damages in such cases. In such cases where the conduct contemplated is likely to be a menace to public morality or safety, any contract to pursue such conduct is unlawful and nothing is recoverable by the injured partly. Ex turpi causa non or oritur actio- an action does not arise from a base cause.

     A plea of volenti arises from an inference of consent drawn from the circumstances rather than any agreement or notice, as was settled in Pitts  v. Hunt that "it is no longer open to the driver of a motor vehicle to say that the fact of his passenger travelling in a vehicle in circumstance in which for one reason or another it could be said that he had willingly accepted a risk of negligence on the driver's part, relieves him of liability for such negligence".

    Claims are likely to be rejected if they offend public convenience. Claims which can be successfully pleaded without bringing in the illegality are capable of being sustained. A patient cannot reasonably expect all the information at the doctor's disposal and therapeutic discretion must be  exercised by the doctor in responding to even direct questions.

Knowledge does not necessarily imply consent

Knowledge does not necessarily imply assent. The maxim is volenti non fit injuria, it is not scienti non fit injuria. Mere knowledge of the impending wrongful act or the existence of a wrongfully caused danger does not in itself amount to consent  even though no attempt is made by the plaintiff to prevent or avoid that act or danger. Knowledge of a particular danger may be evidence of an agreement to undergo certain risk but it is nothing more.

    Knowledge of the risk is not the same as acceptance of it. A man is not bound at his peril to fly from a risk which is another man's duty to protect him merely because the risk is known.

    In Bowater v. Rowley Registered Corpn., the plaintiff, a carter employed to collect road sweepings by a municipal corporation, was ordered by his foreman to take out a horse, which to the knowledge of both of them had run away on at least two previous occasions when driven by a fellow employee. The carter protested but the foreman said that it was an order of the borough surveyor. Some weeks later, the horse ran away and the plaintiff was thrown from his cart and suffered bodily injuries. In an action against the corporation by the plaintiff, alleging that they had failed in their duty to provide him with a horse which was safe and suitable for the work which he had to perform, it was held that the corporation was negligent and that the plea of volenti non fit injuria was inapplicable.

    In South Indian Industrials v. Alamelu Ammal, the defence of consent was held not available to an employer who adopted a dangerous method of breaking up cast iron by dropping a heavy weight from a great height on pieces of iron with the result that a piece of iron hit and killed a workman at a considerable distance.

Consent and intentional torts

In Morris v. Murray the defence of volens was applied. The plaintiff accompanied the defendant on a flight in the defendant's light aircraft after an afternoon's drinking in which the defendant had consumed the equivalent of more than half a bottle of whisky and the plaintiff had full knowledge of the fact.

      Knowledge (even if it does not establish consent under Smith v. Baker) may nevertheless defeat the plaintiff's action in two ways: (1) It may negative the existence of negligence in the defendant. In certain cases he who causes a danger fulfils his legal  duty of care by merely giving notice of it, for example, where A, the owner of a defective electric table-fan, lends it to B, he is only bound to inform the latter of the nature of that defect  and he has no greater responsibility than merely giving notice of it to the borrower. If a master had given warning to his servant not to feed an untamed bull and nevertheless the servant tries to feed the bull and receives hurt from the bull, will the master be held liable? No. It will be an instance where even scienti non fit injuria precludes a person from getting damages. (2) It may established contributory negligence on the plaintiff. If the plaintiff's act in knowingly running the risk was unreasonable and foolhardy, having regard to the magnitude of the danger and the urgency of the occasion it amounts to contributory negligence. Yet one is entitled to face reasonable risks (even knowingly) rather than forfeit one's freedom.

Contributory negligence may be regarded as involving a departure from the normal duty of care on the basis of the implied consent of the participants, or as illustrating the proposition that in determining what amounts to reasonable care all the circumstances of the case must be taken into account.

     The maxim volenti non fit injuria in its strict sense of express or implied assent to run the risk has no affinity with the doctrine of contributory negligence. In its wider sense, however, it is also used to include the operation of mere knowledge in rejecting an action as mentioned before in the example of the defective electric table-fan. The maxim may be said to cover three distinct classes of cases, viz:

1.    Those in which the plaintiff has agreed either expressly or impliedly to suffer harm or to run the risk of it.

2.    Those in which, because the plaintiff knows of the danger, the defendant has done no wrong in causing it.

3.    Those in which, because the plaintiff knows of the danger, his act in voluntarily exposing himself to it is an act of contributory negligence.

But still there is a marked difference between the defence of contributory negligence and volenti non fit injria. In contributory negligence, the substantial cause of the accident is the plaintiff's negligence whereas in volenti non fit injuria it is the plaintiff's express or implied assent to the injuria that is relied on by the defendant as a defence.

 

 

Rescue cases

The defence of volenti non fit injuria is inapplicable in rescue cases. Rescue cases are typified by A's death or injury in rescuing or attempting to rescue B from an emergency or danger to B's life or limb created by the negligence of C.

     The principle was discussed in the English decision of Cutler v. United Dairies Ltd. In this case the defendant negligently used a restive horse to draw a van. The horse bolted and went into a field adjoining the plaintiff's garden when it was caught by the driver who tried to pacify it. As it continued to be restive, the driver shouted for help and the plaintiff thereupon attempted to hold the horse when it suddenly reared and threw him down causing serious bodily injury. The Court of Appeal held that the plaintiff could not recover damages and volenti non fit injuria was held applicable in the case as a good defence.

     But a man cannot be deemed to have given real consent if he acts under the compulsion of a legal or even a moral duty. This was exemplified in the subsequent decision of Haynes v. Harwood. In this case the defendant's servant had left his van and horses unattended in a crowed street. The horses bolted when a boy threw a stone at them. The plaintiff was a police constable on duty inside a police station; he saw that if nothing was done a woman and children were in grave danger and at great personal risk managed to stop both the horses; but in so doing suffered serious bodily injuries. He was held entitled to recover damages and the defence of volenti non fit injuria  was rejected by the court.

     The distinction between Haynes v. Harwood (supra) and Cutler v. United Dairies Ltd. (supra) is that in the former, the horse was actually bolting when the plaintiff attempted to stop it, while in the latter the horse had been caught by the driver and the action of the plaintiff in coming to his assistance was the act of a person who intervened after the danger caused by the defendant's negligence was over. The accident in one case took place in a crowed street where a woman and children were actually in danger. In the other case the restive horse was in a field where nobody was in danger. The element of rescue is less obvious in Cutler case (supra). The decision in that case was one relating to facts on which it could not be said that the injured man was rescuing anybody from danger as in Haynes case (supra).       

    The application of the reasonable man's test requires that the reasonable man must here be endowed with qualities of energy and courage and he is not be deprived of a remedy because he has in a marked degree a desire to save human life in peril. And even if his duty to intervene were merely a moral one as in this case still the law does not think so meanly of mankind as to hold it otherwise than a natural and probable consequence of a helpless person being put in danger that some able-bodied person should expose himself to the danger to effect a rescue.

Inevitable accident (definition and scope)

Damage is said to be caused by inevitable accident when it is not caused intentionally and could not possibly have been avoided by the exercise of ordinary care and caution on the part of him who caused it. It need not have been inevitable in the stricter sense of incapable of being prevented at all.

    The law is derived from a famous American case known as Nitroglycerine case, where there was a sudden unexpected explosion from a case containing nitroglycerine, causing damage to the building rented by the defendant. The carries were held not liable on the ground that it was an unexpected accident. In those days the highly-inflammatory nature of nitroglycerine was not well-known. It is now generally accepted in England that inevitable accident is a good defence in an action for trespass to the person as in Stanley v. Powell, where the defendant while firing at a pheasant accidently and without negligence shot the plaintiff with a pellet from his gun, it was held that he had a good defence.

     But notwithstanding this general there were exceptional cases in which a man is said to act at his peril and to be made by law an insurer of others against the harmful results of his activities such as when (1) damage is due by the trespasses of cattle, and (2) damage is caused by the escape of fire, water and other dangerous substances brought or kept by anyone upon his land.

Act of God or vis major

This is a defence closely analogous to the defence of inevitable accident. Although inevitable accident is no defence to the rule of strict liability laid down in Rylands v. Fletcher (supra), act of God is a valid defence to the same. "Act of God may be defined as an operation of natural forces so unexpected that no human foresight or skill could reasonably be expected to anticipate it." (Winfield) This defence is well illustrated in Nichols v. Marsland. The defendant had constructed certain artificial lakes on her land by damming up a natural stream at a point higher up that the defendant's land by damming up a natural stream at a point higher up than the defendant's land. An extraordinary rainfall, "greater and more violent than any within the memory of witnesses", caused the stream and lakes to swell to such an extent that the artificial banks burst and the escaping water rushed on to the plaintiff's land and carried away four country bridges. The plaintiff sued on behalf of the country, contending that the defendant was liable under the rule in Rylands v. Fletcher but this contention was rejected and the defendant was held not liable. The Court held that she ought not to be liable for an extraordinary act of nature which she could not reasonably anticipate. It was said that one is only bound to provide against the ordinary operations of nature, but not against her miracles.

     An act of God is distinct from inevitable accident. In order that an accident may be an act of God it must have followed directly from natural causes without human intervention. "All causes of inevitable accident, casus fortuitus, may be divided into two classes, those which are occasioned by the elementary forces of nature unconnected with the agency of man or other cause, and those which have their origin either in the whole or in part in the agency of man." Thus if a ship is driven ashore by a tempest, this is the act of God; but if it is run ashore during a fog by mistake, however inevitable on the part of the captain, this is the act of man. The defence of inevitable accident is a more general defence and is distinct from the act of God in so far as it is dependent on human agency and not on natural forces.

     In T. Gajayalakshmi Thayumanavar v. Secretary PWD, Govt. of T.N., Madras, the Electricity Board was held liable for not maintaining the electric system properly. The deceased, a cycle rider, who was going on his way was electrocuted by the falling of an overhead electric wire running across the road. The court rejected the contention of the counsel of the Electricity Board that it was an unexpected incident due to rain and wind and that the snapping of the electric line was an act of God. The court also rejected the contention of the counsel of the Electricity Board that the death took place due to the negligence of the deceased in his leaving the home that day in rain and wind.

Mistake

Although inevitable accident is a good defence against civil liability, inevitable mistake is no defence. There is the well-known maxim "ignorantia juris non excusat" which means that ignorance of law is no excuse, ignorance may be either of law or of fact. Every man is presumed to be cognizant of the law. Every man is presumed to be cognizant of the law of his realm and to construe it aright; and if an individual infringes it through ignorance, he must nevertheless abide by the consequence of his error. It is not open to him to aver in a court of justice that he has mistaken the law, this being a plea which no court of justice is at liberty to receive. Here, in order to avoid the difficult enquiry into the inscrutable conditions of the human mind, Law has made it a basic principle that ignorance of law is no excuse.

    Mistake of fact is a good defence in criminal law. So far as civil liability is concerned, it is  a general principle that he who intentionally or semi-intentionally interferes with the person, property or reputation or other rightful interests of the other, does so at his peril; and will not be heard to allege that he believed in good faith and on reasonable grounds in the existence of some circumstance which justified his act. If I trespass upon another man's land, it is no defence to me that I believed it on good grounds to be my own. If in absolute innocence and under an inevitable mistake of fact  I meddle with another's goods. I am liable for all loss incurred by the true owner.

     The plea of inevitable accident is that the consequences complained of as a wrong were not intended by the defendant and could not have been foreseen and avoided by the exercise of reasonable care. The plea of inevitable mistake, on the hand, is that although the act and its consequences were intended, the defendant acted under an erroneous belief formed on reasonable grounds that some circumstance existed which justified him. Such a mistaken belief in justification, however reasonable, is not in itself justification.

Special case in which mistake is a good defence

1.    The mistaken prosecution of an innocent man is not in itself an actionable wrong; for such a rule would effectively prevent the administration of criminal law. A prosecutor incurs no liability unless he acted both maliciously and without reasonable care.

2.    So the mistaken arrest of an innocent man on suspicion of felony is not actionable, if the felony (felony means any serious offence) has been actually committed and if there is reasonable ground for believing that the person arrested is guilty of it.

3.    Mistake is always a defence where the plaintiff must prove malice.

Private defence  (self-help and self-protection)

Every person is entitled to use a reasonable degree of force for the protection of his person  or property. This is called the right of private defence, a well-recognised defence in criminal law. Remedy available to a party by his own act alone is called self-help. The right of private defence appears at first sight to be an obvious example of this. But this is not so, for there is no question of remedy in private defence. We are allowed to repel force by force, "not for the redress of injuries but for their prevention", not in order to undo a wrong done or to get compensation for it but to cut wrong short before it is done; and the right goes only to the extent necessary for this purpose. It is only when the party's lawful act restores to him something which he ought to have or puts an end to a state of things whereby he is wronged that self-help becomes a true remedy. The acts of this nature which we meet within the law of torts are expulsion of a trespasser, retaking of goods by the rightful possessor, distress damage feasant and abatement of nuisances.

     The right of private defence vested in an individual extends to the protection of one's spouse and family and even servant or master. The force used by the victim to ward of the injury must be proportionate to the nature of the threatened evil. Ordinary violence must be repelled by ordinary means and a deadly weapon should not be used except against a deadly attack.

Necessity

If a man is compelled to do an act out of sheer necessity, he will not be liable for the injurious consequences of it to another, even if the said act has caused considerable damage to the latter. For example, if a house is on fire, you can enter the house and remove the goods to save them, or pull down the house to prevent the spreading of fire to other houses. So in Cope v. Sharpe the act of burning one's neighbour's heather was held justifiable in order to prevent the spreading of fire to his sitting pheasants. The measures taken to prevent the threatened evil should however be reasonable. In Gregson v. Gilbert, where fifty Negro slaves were thrown overboard owing to shortage of water it was held that no sufficient evidence of necessity had been shown for the captain's act.

Statutory authority

A person cannot complain of a wrong which is authorised by the Legislature. When a statute specially authorises a certain act to be done by a certain person which would otherwise be unlawful and action will lie at the suit of any person for the doing of that act.

     The defence of statutory authority and indemnity extends not merely to the act itself, but to all its necessary consequences, otherwise the authority would be useless. No consequence which can be avoided is within the scope of statutory indemnity, every consequence which cannot be avoided is within that protection. In Vaughan v. Taff Vale Rly. Co., the defendant company having statutory authority to use steam locomotives was held not liable for a fire caused by escaping sparks it being proved that the engines were constructed with all due care and skill and that it was impossible wholly to prevent the escape of sparks. Two types of cases must be distinguished:

1.  Cases of absolute statutory authority, i.e., authority to do the act notwithstanding that it necessarily causes nuisance or other injury.

2.      Cases of conditional authority, i.e., authority to do the act provided it can be done without causing such consequences.

In London and Brighton Railway Co. v. Truman, a railway company was by their Act authorised to carry cattle and purchase land by agreement, in addition to land which they were empowered to purchase compulsorily, any land not exceeding fifty acres in such place as should be deemed eligible for the purpose of providing yards for receiving or keeping the cattle conveyed by the railway. The Act contained no provision for compensation in respect of lands purchased by agreement. The company was held not liable for a nuisance arising from a cattle yard. The prohibition in the Act was interpreted to be an imperative one, conferring on them absolute immunity from all sorts of liabilities.

     A leading case of directive or conditional type is that of Metropolitan Asylum District v. Hill. In this case a local authority having statutory authority to erect a smallpox hospital, was restrained from erecting one in a place where it would have been a danger to neighbouring residents; the authority was construct as conditional, to erect the hospital only if the authority could obtain a suitable site where no nuisance would result.

    If the public officer acts with malice, i.e. with an intent to injure, and damage results, the liability arises and the officer can be sued for the tort of misfeasance in public office. A Government officer may be held liable in tort, where in the discharge of his official administrative duties, he acts maliciously, or with oblique motive or mala fide.

     The act complained of must be one which is done in the exercise or purported exercise of some power vested in the officer or authority. It is not necessary that the power exercised must have a statutory origin. A malicious exercise of a power under a contract may give rise to the tort of misfeasance. The Supreme Court of India stated that the tort of misfeasance in public office occurs when an officer of the Government or a public authority acts maliciously or oppressively, causing harassment and agony to the plaintiff and the officer may be personally liable for payment of compensation.

Duty to plaintiff and not mere public duty

Unless a duty to the plaintiff is violated, he will not be entitled to recover. If the statute had imposed on the defendant a duty to the public only, then he could not be held liable.

     In interpreting the statute, the nature of the penalty can also be taken into consideration by the court. If only a trivial sum is fixed by statute for its breach, it cannot have been the intention of the statute to exclude the substantial damages under the ordinary common law. Thus in Groves v. Wimborne the fine under the statute was only ₤ 100 for the breach of its condition, but the Court of Appeal awarded to the injured plaintiff ₤ 150. In K.R. Shenoy v. Udipi Municipality the Supreme Court held that a municipality is equally liable like any other individual for the infringement of the rights of others. A resident of the area can compel the municipality to perform any duty imposed upon it by the statute.

Defences (public policy and illegality)

Claims are likely to be rejected if they offend public conscience. Claims which can be successfully pleaded without bringing in the illegality are capable of being sustained.