General Defences to Torts

By Asad -
November 28, 2010
27
11733

Well what exactly are they? Lets take an example to understand.

Asad and Aymen are the best of chumss who go to the R. Singh International Stadium at NALSAR to witness a
cricket match between NALSAR and XYZ, Bangalore. During the match a stray ball hits Asad in the eye. Asad
cannot claim damages from the stadium authorities or the batsman who hit the ball because when he went to
watch the match at the stadium he voluntarily accepted the risk that he was undertaking. Such is a valid defence in
tort law. General defences are a set of defences or excuses that you can undertake to escape liability in tort only if
your actions have qualified a specific set of conditions that go attached with these defences. Most of these defences
can be claimed to escape liability in toto, or in some cases to an extent. Lets delve into these defences.

1. Vis Major or Act of God.

When something occurs over which you have no control and it is effected of accentuated by the forces of nature
then you are not liable in tort law for such inadvertent damage that may arise out of such. However if you were
well aware of the risks and could have possibly taken steps to stop the wrongful act or damaging act or have in
anyway mitigated it then you cannot duck responsibility under this defence. Constituents of this defence:

Due to forces of nature or unnatural circumstances.

You had no control over it and it happened suddenly.

You had no knowledge or could not do anything to mitigate the damage.

2. Plaintiff the Wrongdoer.

Lets take an illustration to understand this concept. Ketan and Shailesh are next door neighbours. However they
cannot stand each other and have frequent quarrels which often turn nasty. In the dead of night Ketan steals into
Shaileshs property claiming he wanted to take a walk in the latters gardens. Shailesh had a pet dog called
YenYalYas who jumped at Ketan. Ketan files a suit claiming damges from Shailesh. Shailesh can take the plea of
plaintiff the wrongdoer as Ketan himself had first trespassed onto his property and thus could not claim a suit
having committed a wrong himself in the first place.

Should the plea of plaintiff the wrongdoer succeed, the plaintiffs case falls.

3. Volenti non fit injuria.

This principle states that if one voluntarily takes the risk of something then he may not claim a suit of action of
such risk leads to injury. However this risk must have been taken under free consent and not under coercion and
with the full knowledge of the risk.
A corollary of this principle is Scienti non fit injuria which means that only knowledge of the risk is not enough to
claim defence there must be acceptance to undergo the resultants of the risk undertaken. There had to be consent
and mere knowledge is not sufficient.

4. Private Defence

Nothing is wrong if done with regard to protecting ones own self, another self, ones property or anothers property
against a threat to such. Suppose Someone points a loaded gun at me and threatens me I do have the right to
bodily harm that person in order to save myself or someone else. However there are limitations to such rule with
regard to the force being used which must be proportional to the risk presented.

Points to remember about private defence:

Risk must be immediate and sudden.

Force used must be proportionate to the risk at hand.

5. Inevitable Accident.

This is a defence that can be claimed under a situation where inspite of taking reasonable care and protection the
harm could not be averted. This does not mean absolutely inevitable but unavoidable even after taking necessary
precautions with respect to the harm in question.

Sandipan and Shayak went to the Sunderbans to shoot pheasants. Sandipans bullet skidded off the bark of a tree
and hit Shayak while he was talking on the phone. Shayak was injured and sued his friend for compensation. The
defence of inevitable accident could herein be rightfully claimed by Sandipan. (Similar facts in Stanley v. Powell).

6. Mistake

This is not a very often claimed defence as it is very hard to fit in a case into the subtle limits of this defence of
mistake. This refers to a particular case wherein a person was under mistaken knowledge usually and even after
taking reasonable precautions could not have been reasonably expected to not commit the so called mistake.

Rupali runs an auction shop on the beaches of Goa. Shraddha is a Nepalese entrepreneur who asks her friend
Rupali to auction off some ill gotten goods that the former has smuggled in from Nepal. Rupali ran all the usual
checks on the goods and was reasonably confident that the goods were genuine. She auctioned off the goods and
then the anomaly was detected and the new owners sued Rupali. Herein Rupali can claim the defence of mistake.

7. Necessity

Under dire conditions if one does something which results in a tort then once can usually claim the defence of
necessity. Such condition should however be able to come under the bracket of general good or greater good
(there little Harry Potter for you!!!) and to prevent a bigger harm.
Anindita and Sanya are nighbours. Sanyas house was on fire so she trespassed onto Aninditas property to draw
water from the latters well to douse the fire (prevent a greater harm). Thus she is covered under the defence of
necessity.

All the Best for Legal!