INTRODUCTION The Law of Torts is a concept that has been evolving through the ages. This ever dynaic evolution of tort law has been the ater to any principles under which tortuous liability can be deanded. !iultaneously" certain other principles are used" to counter these clais for copensation. These counter clais that are used to evict those innocent citi#ens fro tortious liability" who have been unfairly iplicated with actions iposed on the are called Defences in Tort Law or Justification of Torts. In other words" $Defences in Tort Tort Law% refer to rules that" when enlivened" result in a verdict in favour of the defendant even if all of the ingredients of the tort that the plaintiff contends was coitted against hi" are present. These defences were forulated fro tie to tie in order to &eep up with the very reason of iposition of tortious liability on an individual' i.e." creating a sense of deterrence while &eeping up with the basic values of (ustice. In the words of !ir )rederic& *olloc&" these Defences in Tort Tort Law are+ “The rules of immunity which limit the rules of liability. There are various conditions which, when present, will prevent an act from being wrongful which in their t heir absence would be a wrong. Under such conditions the act is said to be justified or excused. And when an act is said in general terms to be wrongful, it is assumed that no such qualifying conditions exists.
,infield and -olowic# eplained Defences as+ “A claimant who fails to prove the necessary ingredients of the particular tort or torts on which he relies will, of course, fall in his action. !ven if he does prove these ingredients, however, he may still fail if the defendant shows that he is entitled to rely upon some specific defence. "ome of these defences are peculiar to particular torts. These defences are called #specific defences$. %hile other defences are broader in scope and can be applied by a defendant on a more pervasive scale as a defence to various torts. These defences are called #general defences$.
Types Ty pes of defences to various torts+ /. !*0C !*0CI) I)IC IC D0 D0)0N )0NC0 C0!+ !+ These are defences which are peculiar to particular torts. )or eaple+ I. II.
In an act action ion fo forr tresp trespas ass" s" the the de defe fenc nces es of of lice licens nsee or or (ust (ustif ific icat atio ion n by la law w are are ava avail ilab able le.. In an act action ion for def defaa aation tion"" the the defe defence ncess of of priv privileg ilegee or or fair fair co coen entt are are ava availab ilable. le.
1. 20N0 20N0R/ R/L L D0 D0)0N )0NC0 C0!+ !+ These are defences which ay be ta&en against action for a nuber of torts. )or eaple+ I.
Consent
This defence is based on the principle of ‘Volenti non fit Injuria’ . / person" who has voluntarily agreed to suffer har" cannot clai daages for such har. This consent to suffer har can be either epress or even iplied. 3owever" such consent ust be given freely and not obtained by fraud or any other illegal eans. II.
*laintiff" the wrongdoer
This defence is based on the ai $0 turpi causa non oritur actio% which eans $no action rises fro an ioral cause%. !o" when the action of the plaintiff is unlawful itself" it ight lead to a defence in general. III.
Inevitable accident
Inevitable accident is such where the in(ury could not have been avoided inspite of reasonable care on part of the defendant. In a suit for tort it is alwa ys a good defence if it can be shown that the defendant could not avoid the in(ury sustained by the plaintiff inspite of his reasonable effort. I4.
/ct of 2od
/n /ct of 2od is an inevitable accident arising out of the wor&ing of natural forces which is beyond huan control and unprecedented in nature and type. It ust be etraordinary and unanticipated as well. 4.
*rivate defence
In case of iinent threat to life or property" use of force for defence of the sae is (ustified. 3owever" use of such force ust be reasonable and should be in proportion to the re5uireent. 4I.
!tatutory authority
Any damage arising out of an act that the law prescribes or the statute authorises will never become actionable even though in absence of such statutory authority it is an oence in tort. 4II.
Necessity
Under dire conditions if one does soething which results in a tort then once can clai the defence of necessity. !uch conditions should however be able t o coe under the brac&et of $general good% or $greater good% and to prevent a bigger har.
)or the purpose of this assignent" I shall elaborate on the
IN04IT/1L0 /CCID0NT
In the words of !haw C.-. of 6assachusetts !upree Court+ “&nevitable accident is an accident such as the defendant could not have avoided by the use of 'ind and degree of care necessary to the exigency and in the circumstances he was placed
!ir )rederic& *olloc& eplained the defence of $inevitable accident% as+ “&t does not mean absolute inevitable, but it means not avoidable by any such precaution as a reasonable man, doing such an act then and there, could be expected to ta'e.
/s observed by 2reene" 6.R." an inevitable accident is +
“(ne out of the ordinary course of things, something so unusual as not to be loo'ed for by a person of ordinary prudence.
)ro the above stateents" it can be inferred that" an $inevitable accident%" or $unavoidable accident%" is that which could not possibly be prevented by the eercise of ordinary care" caution and s&ill. It refers to an accident that is physically unavoidable. /ll causes of inevitable accident ay be divided into two classes+ 7.
Those which are occasioned by the eleentary forces of nature unconnected with the agency of an or other cause. The ter $/ct of 2od% is applicable to the. 8. Those which have their origin either in the whole or in part in the agency of isfeasance" or in any other causes independent of the agency of natural forces. If in prosecution of a lawful act" done with care" an accident happens" no action lies fro an i n(ury arising therefro. Iportant cases regarding the defence of $inevitable accident% are+ I.
)ardon v. 3arcourt Rivington 97:;8< 7=> LT ;:7. )acts of the case' The defendant was traveling in a otor car with his dog. 3e par&ed his otor car in the street and left his dog inside the s hut car. The dog had no vicious propensities and was always 5uiet and docile. /s the plaintiff passed by the side of the car" the dog which had been bar&ing and (uping about in the car" sashed a glass panel and splinter entered in to one of the eyes of the plaintiff which then" had to reoved. The plaintiff sued the defendant for daages. -udgeent' Lord Dunedin did not hold the defendant liable. 3e stated that+ “ This is such an extremely unli'ely event that & do not thin' any reasonable man could be convicted of negligence, if he did not ta'e into account the possibility of such an occurrence and provide against it either by not leaving the dog in the car or by tying it up so that it could not reach the window. )eople must guard against reasonable probabilities, but they are not bound against fantastic possibilities..
II.
Nitro'glycerine case 97?@8< 7A ,all A8=. )acts of the case' The defendants" a fir of carriers" received a wooden case to be carried to its destination and its contents were not counicated. On an interediate station" t was found that the contents were lea&ing. The case was" therefore" ta&en to the defendants% offices" which they had rented fro the plaintiff" and a servant proceeded to open the case for eaination" but the nitro'glycerine which it contained" eploded. /ll the persons present were &illed and the building was daaged. /n action was brought by the landlord for daages suffered by parts of the building let to other tenants as well as to the defendants. -udgeent' It was held that" in the first place" the defendants were not bound to &now" in the absence of reasonable ground of suspicion" the contents of pac&ages offered to the for carriage" and that" without such &nowledge in fact and without negligence" they were not liable for daage caused by the accident.
III.
*adavati v. Dugganai&a 97:@A< 7 Ba. L.-. :; + 7:@A /.C.-. 888.
)acts of the case' Two strangers too& lift in a (eep. !hortly afterwards" one of the bolts fiing the right front wheel of the (eep to the ale gave way and the wheel flew away fro the ale. The (eep was toppled" the two strangers got serious in(uries resulting in the death of one of the. /n action was brought for daages suffered by the plaintiff. -udgeent' It was found that it was a case of sheer accident" as there was no evidence to show that the defect was a patent one and could have been detected b y periodical chec&'up. The defendant" i.e." the driver of the (eep and his aster" were therefore" not held liable. I4.
!hridhar Tiwari v. U.*. !tate Road Transport Corporation 97:?@< /C- >;> )acts of the case' ,hile bus $/% belonging to the U.*.!.R.T Corporation reached near a village" a cyclist suddenly cae in front of the bus. It had rained and the road was wet. /s the driver applied bra&es to save the cyclist" the bus s&idded on the road" as a result of which the rear portion of this bus hit the front portion of bus $1% coing fro the opposite direction. -udgeent' It was found that at the tie of the accident" both the buses were being driven at a oderate speed and the accident had occurred despite due care on the part of the drivers of both the buses. It was held that it was an inevitable accident and "therefore" the defendant corporation was not held liable for the sae.
)ro the above cases" it is evident that the defence of $inevitable accident% is not really a defence but only a denial of liability" for the defendant has coitted no tort. In cases of absolute liability" inevitable accident is no ecuse unless it assu es the for of an $/ct of 2od%. It therefore" sees that the defence of $inevitable accident% is no longer useful in the law of torts.
/CT O) 2OD
,infield and -olowic# defined an $/ct of 2od% as+ “%here an act is caused *harmful to a party+ directly by natural causes without human intervention in circumstances which no human foresight can provide for and against and of which human prudence is not bound to recognie the possibility, the Act of -od as defence can be applied.
3alsbury%s Laws of 0ngland eplained the defence as+ “ An Act of -od, in the legal sens, may be defined as an extraordinary occurrence of circumstance, which could not have been foreseen and which could not have been guarded against, or more accurately, as an accident due to a natural cause, directly and exclusively, without human intervention, and which could not have been avoided by any amount of foresight and pains and care reasonably to be expected of the person sought to be made liable for it, or who see's to excuse himself on the ground of it. The occurrence need not be unique, nor need it be one that happens for the first time it is enough that it is extraordinary, and such as could not reasonably be anticipated/ and it must not arise from the act of man.
)ro the above stateents" it can be inferred that /ct of 2od is a &ind of inevitable accident with the difference that in the case of /ct of 2od" the resulting loss arises out of the wor&ing of natural forces
li&e eceptionally heavy rainfall" stors" tides and volcanic eruptions. There are eactly two iportant essentials that are needed for this defence+ a< There ust be wor&ing of natural forces. b< The occurrence ust be etraordinary and not one which could be anticipated and reasonably guarded against. Iportant cases regarding the defence of $/ct of 2od% are+ I.
Nichols v. 6arsland 97?@>< 8 0. D. 7. )acts of the case' The defendant created soe artificial la&es on his land b y daing soe natural streas. Once there was an etraordinarily heavy rainfall" stated to be the heaviest in huan eory" as a result of which" the eban&ents of the la&es gave way. The rush of water washed away four bridges belonging to the plaintiff. /n action was brought by the plaintiff for the daages suffered by hi against the defendant. -udgeent' !ince the rainfall was etraordinarily heavy and could not be anticipated" it was held that the defendants were not liable as the loss had occurred due to /ct of 2od.
II.
Ballulal v. 3echand /.I.R. 7:A? 6adh. *ra. =?. )acts of the case' The wall of a building collapsed on a day when there was a rainfall of 8.>> inches. That resulted in the death of the respondent%s two children. -udgeent' The 6adhya *radesh 3igh Court held that the defendant 9appellant< could not ta&e the defence of /ct of 2od in this case" as that uch of rainfall during the rainy season was not soething etraordinary but only such as ought to have been anticipated and guarded against. The appellant was" therefore" held liable.
*RI4/T0 D0)0NC0
It is huan instinct to repel force by force" and this natural instinct has got (udicial as well as statutory recognition. 0very person" therefore" has a right to defend his own person" property or possession against an unlawful har. This ay even be done for a wife or husband" a parent or child" a aster or servant. 3owever" in defending" the force ust be in proportion to the apparent urgency of the situation. The 5uestion of private defence ay be considered under two headings+ a) Defence of Person ,hen a an stri&es at another" the party struc& is (ustified in using such a degree of force as will prevent a repetition. 3owever" the force eployed ust not be out of proportion to the apparent urgency of the occasion. The test is whether the defendant%s act was such as he ight reasonably" in the circustances" thin& necessary for the prevention of har. The necessity ust be proved. 6oreover" in(uries received by an innocent third person fro an act done in self'defence ust be dealt with as accidental har caused fro a lawful act. b) Defence of Property 0very person is entitled to protect his property. 1ut he cannot for this purpose do an act which is in(urious to his neighbour. The eans adopted to protect one%s property
ust be reasonable i.e. proportionate to the in(uries which they are li&ely to inflict. 1ro&en glass or spi&es on a wall or a fierce dog with a visible warning sign ay be (ustified on this principle but not deadly ipleents li&e spring guns or live electric wire of high voltage to dissuade trespassers. Iportant cases regarding $*rivate Defence% are+ I.
Turner v. -agohan !ingh 97:A< ILR 8@ /ll. A;7. )acts of the case' / vicious stallion repeatedly attac&ed on a road a pair of ares belonging to the carriage in which the defendant was being driven" and finally it cae into the defendant%s copound in spite of attepts ade to prevent hi. It continued its attac&s until the defendant got hold of a spear and inflicted a soewhat severe wound on the left hind 5uarter of the anial. The stallion subse5uently died fro the effects of the spear wound. -udgeent' !ince there was real and iinent danger to the defendant%s ares" the defendant%s actions were (ustifiable with regard to the circustances and therefore"the owner of the stallion was not entitled to any daages.
II.
1ird v. 3olbroo& 97?8;< = 1ing. >8? 7; 0.R. :7. )acts of the case' The plaintiff was a trespasser as he cli ber over the defendant%s wall in pursuit of a fowl. 3owever" the defendant had put up spring guns in his garden without fiing any notice about the sae and the trespasser was seriousl y in(ured by its autoatic discharge. /n action was brought b y the trespasser against the defendant for the daages so suffered. -udgeent' It was held that the plaintiff was entitled to recover copensation as the force used here was greater than the occasion deanded.
N0C0!!ITE
Three types of cases fall under the defence of $necessity%+ i. ii. iii.
Cases of public necessity Cases of private necessity Cases where assistance is given to a third person without hisFher consent as a atter of necessity.
Cases of public necessity are based on the ai salus populi suprema lex 9the welfare of the people is the supree law<. This ai was founded on the iplied assent of every eber of the society" that his own individual welfare shall" in cases of necessity" yield to that of the counity and that his property" liberty and life shall" under certain circustance" be placed in (eopardy for the public good. /nd no cause of action will arise fro that. In other words" an act causing daage" if done under necessity to prevent a greater evil is not actionable even though har was cause d intentionally. Necessity is distinguished fro private defence because in necessity" there is an infliction of har on an innocent person whereas in private defence" har is caused to a plaintiff who hiself is the
wrongdoer. Necessity is also different fro inevitable accident as in necessity" the har is an intended one" whereas in inevitable accident" the har is caused in spite of the best effort to avoid it. Iportant cases regarding the defence of $Necessity% are+ I.
Cope v. !harpe 97?:7< 7 &.b. =:>. )acts of the case' The plaintiff let the shooting ri ghts over his land to one C. / fire bro&e out on the land" and while the plaintiff%s en were endeavouring to beat it out" the defendant" who was the gae&eeper of C" entered the plaintiff%s land to prevent the spread of fire to the part of the shooting where there were soe nesting pheasants of his aster. The fire was ultiately etinguished by the plaintiff%s en and an action for trespass was brought against the defendant. -udgeent' !ince the defendant%s act was considered to be reasonable necessary to save the gae fro real and iinent danger" it was held that the defendant was not liable for trespass.
!T/TUTORE /UT3ORITE
The daage resulting fro an act" which the legislature authorises or directs to be done" is not actionable even though it would otherwise be tort. ,hen an act is done" under the authority of a law" it is a coplete defence and the in(ured part has no reedy ecept for claiing such copensation as ay have been provided by the statute. The principle is that the act is not wrongful" not because it is for a public purpose but because it is authorised by the legislature. The underlying philosophy behind statutory authority is that lesser private right ust yield to greater public interest. The statutory authority etends not erely to the act authorised by the statute but to all inevitable conse5uences of that act. No action can lie either for the har directly caused b y statutory authority or the har that is incidental to the eercise of such authority. 3owever" the powers conferred by the legislature should be eercised with (udgeent and caution so that no unnecessary daage is done. If the daage could have been prevented b y reasonable eercise of powers conferred" an action can be aintained. Iportant cases regarding the defence of $statutory authority% are+ I.
/llen v. 2ulf Oil Refining Ltd. 97:?7< 7 /ll 0.R. ;A; 93L< )acts of the case' The defendant" an Oil copany" which had constructed a large oil refinery was sued by the plaintiff who lived in the neighbourhood of the refinery for daages alleging that the operation of the refinery was a nuisance. Nuisance was cl aied by the plaintiff due to continuous noise" vibration and sell eanating fro the refinery. It was also claied that the vast cople of (etties and railway lines copletely doinated the sall village in which the plaintiff inhabited and that it caused the a l ot of difficulties in their daily functioning. -udgeent' The defendant copany pleaded statutory iunity under the 2ulf Oil Refining /ct" 7:>A and this plea was decided in favour of the defendants by the 3ouse of Lords.
