General Defences to Torts

Well what exactly are they? Let’s 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. Let’s 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.

Let’s 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 Shailesh’s property claiming he wanted to take a walk in the latter’s 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 plaintiff’s 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 one’s own self, another self, one’s property or another’s 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. Sandipan’s 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. Sanya’s house was on fire so she trespassed onto Anindita’s property to draw water from the latter’s well to douse the fire (prevent a greater harm). Thus she is covered under the defence of necessity.

All the Best for Legal!

Next in the series : Vicarious Liability