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Tort law is basically protecting people's rights from the wrongdoings of others. When a person complains that his right has been harmed by another's actions, the law of torts comes to the rescue to ensure justice is done. But what happens when a defendant has some reason or explanation for their actions? This is where General defences cames into play.
What is General Defences under Law of Torts ?
In tort law, General defences are legal arguments standard to a defendant seeking to avoid liability for doing a tort, even as the plaintiff has shown to have satisfied all the ingredients of the tort: duty, breach, causation, and damage. If proven, all these defences can completely remove the defendant from responsibility for said harm. General defences are essentially reasons or excuses for the defendant to justify his actions, revealing that, under certain circumstances, the actions should not lead to liability.
There are total of 8 common defences in law of tort which serve as defence shields against legal claims and one of the General Defence is Necessity. General defence in Torts law under its Necessity section provides for justification where a defendant argues that its actions, otherwise qualified under tort, were necessary so as to prevents greater major harm. This basically constitutes a legal justification of otherwise wrongful acts when such actions was takens to prevents an even greater dangers.
The Necessity defence, therefore, follows the principles that, in such extreme circumstances, it is within the realm of acceptability to break another person's rights if it was necessary to stop greater or more serious harm. For instance, if a person had to invade private property in order to be saved from an imminent life situations, trespassings may become excusable due to it being necessary to survive.
GENERAL DEFENCES UNDER LAW OF TORTS
It holds that when a plaintiff makes a lawsuit against a defendant alleging certain tort or infringement of certain legal right leading to some legal damages, and thereby establishes the necessary elements /essentials of the tort, the defendant would become liable.
But there are defences the defendant can use to free himself from the liability resulting from the wrongdoing. These are known as General or common Defences in Law of Torts.
General or common torts law defences said to the legal principles by which a defendant may defend their case and avoid liability against a tortious act. It is a safeguard to confirm and securethat the defendant's rights and interests are not offended upon. The burden of proving lies with the plaintiff, while that of establishing and setting up a defense in order to ward off liability lies with the part of the defendant.
General defences in tort law, primarily, aim to balance out the legal rights of the claimant and the defendant so as to be fair to them. These defences help ensure that the rights of the defendant are protected so as not to be liable for actions that they have no control over. Besidesthis, these general defences provide a framework for determining or indicating whether the acts done by the defendant were right for the given set of circumstances.
Torts General defences can be applied in different scenarios. However, it should be noted that the efficacy and availability of these defenses will depend on the circumstances of each case. A defendant must prove that his or her actions fall within a particular defense to avoid liability.
As per the books of R.K Bangia and Ratanlal & Dhirajlal, there are eight general defences under law of torts:
EIGHT TYPES OF GENERAL DEFENCES
- Below mentioned are defences in Torts.
- Volenti non fit injuria or the defence of ‘Consent’
- The Plaintiff is the wrongdoer.
- Inevitable accident.
- Act of God.
- Private defence.
- Mistake.
- Necessity
- Statutory authority.
TYPES OF GENERAL DEFENCES UNDER TORTS LAW
Now, let’s explore the general defences available under law of tort.
1. VOLENTI NON FIT INJURIA, OR THE DEFENCE OF ‘CONSENT’
The defense “volenti non fit injuria" holds that-the plaintiff has voluntarily or willingly accepted the risks of injurys or harm. In this sense, we can state that the defendant can organize that the plaintiff was aware of the risk involved in the activity and willingly accepted it; from this, he or she cannot claim or seek damages for any harm or injuries suffered as a result.
The essential agents of this defence of tortss law are:
- The plaintiff must have voluntarily or we can say willingly or knowingly accepted the risk of harm or injury.
Some of the examples of this defence are:
When participating in cricket or football, players are considered to accepts the risks of injurys that can happen during the game.
In the same way, a person driving on a highway is assumed to consent to the chance of accidental incidents.
The spectators at a cricket match or a motor race cannot recover if they are hitted by the ball or injured by a car coming on the track.
In the case of Hall v. Brooklands Auto Racing Club, this is a evergreen case, in this case the plaintiff going to attended and see a car racing event held on the defendant’s track. While running, two cars collided into each other and one car move forward into the spectators injuring the said mentioned plaintiff. The Court considered that the plaintiff had assented to the risk of getting injured as a result of his attending the race since this would be reasonably predictable. On those grounds, the defendant is acquitted.
In “Padmavati v. Dugganaika”, two strangers accepted a lift in a jeep, which later overturned due to a mechanical failure, causing one of them to die. The court ruled that neither the driver nor the employer was liable, as the accident was purely accidental and the strangers had willingly entered the vehicle. The principle of volenti non fit injuria applied, but in rescue cases where someone voluntarily risks harm to save another, this defense is typically not upheld.
For example: A man jumps into a river to save a child who is drowning, with full knowledge that the river is dangerous and the chance of drowning. In the event that the rescuer gets hurt or dies in the process, the defendant cannot plead this defence.
2. PLAINTIFF THE WRONGDOER
The defence of wrongdoer is the plaintiff says that the plaintiff shared responsibility for the harm or injury generated or suffered. The defendant might also argue that the plaintiff's actions contributed to the harm, and they should not be solely held responsible for the damages.
Key elements or essentials for this general defence in tort are:
- Plaintiff should be a substantial contributor in generating the harm or injury.
- The plaintiff must substantially contribute in bringing about the harm or injury.
Kijuz was driving on the wrong side or we can say the road’s other side when he hit into Mizke's car. Both end up with injuries. Kijuz can, however claim partial blame for Mizke because he was speeding. Therefore, Kijuz cannot entirely be blamed for the losses.
In the “Pitts v. Hunt” case, a case were a person who is 18+ or major encouraged his friend who is 16 year old to drive recklessly while intoxicated. The that vehicle they were riding crashed, killing the driver instantly. The pillion rider, who was severely injured, sued the relatives of the deceased for damages. The court dismissed the case, ruling that the plaintiff also had a hand in the accident. This case focuses on the defence of the wrongdoer is plaintiff, which can be claimed to dispute a claim of compensation when the plaintiff has been responsible for causing their own injuries through wrongful behavior.
3. INEVITABLE ACCIDENT
The defence of inevitable accident contends that the harm or injury originated was not avoidable. The defendant can contend that the harm or injury generated is because the result of unforeseeable circumstances, and thus, they cannot be held liable for it.
- The essential agent of this inevitable accident of general principle or defences in tort are:
- The harm or injury suffered or what can be said harm generated was not foreseeable.
- This means the harm or injury that was established or occurred was by unpredictable causes.
For Instance, a car is crushed majorly by a falling branch of a tree. A tree's owner cannot be sought after to get compensation since falling branch caused the fall, which could not be foreseen or even prevented.
In Stanley v. Powell historic case, where both we can say the defendant and the plaintiff were participating and attending in a pheasant shooting contest. As the defendant was taking aim at a pheasant, the bullet rebounded from an oak tree and the plaintiff got hit, seriously injuring him. After this injury was held to be one that could not be avoided and the defendant was discharged from liability.
4. ACT OF GOD
The defence/principle of the act of God refers to that situation in which harm or injury, due to or because of the natural events in which the human element would not have any control, takes place. Under such circumstances, even the defendant can argue on the plea that the damage suffered was on account of Act of God, and thus that damage could not be considered his liability.
The key constituent essentials or elements of these general defences under tort are:
- The harm or injury was caused by natural events, which cannot be controlled by man.
- The defendant had no way of preventing the harm or injury.
Here is the example quoted in book R.K. Bangia that a sudden flood injures a property but which the owner of the property cannot claim because there was a flood which by being a natural act fell completely out of human willpower.
Kallu Lal v. Hemchand is a historic case were we know a building's wall collapsed because or we can say due to rainfall which is about 2.66 inches of, that was considered normal. The collapse brought and generated tragic death of children of that said respondent. The court pass away that the appellants could not plead Act of God because the amount of rainfall was not sufficient to invoke the plea of Act of God. Hence, here the appellants of this case were held liable for the mishap.
5. PRIVATE DEFENCE
The concept of private defence permits and allow a defendant to contend that he acted in self-defence or in defence of another person or property. They can plead that their acts were necessary to protect themselves or others from actual or apprehended harm or injury.
There are three essential agents of this defence:
- The defendant must have done any things or acted in self-defence or to save someone which we can say defence of another person or property.
- A actions of the defendant should be necessary to prevent harm or injury.
For instance: Zincov sees someone attacking his friend and steps in to protect and save him. Zincov cannot be held liable for any harm caused because he is acting to protect his friend.
In the case of Bird v. Holbrook, the main issue revolved around a trespasser who, while on his way through someone's garden, got hurt from spring guns set up or installed by the defendant without prior cautions or what can say warning. The court found the defendant's actions to be unjustified and ordered him to compensate the plaintiff for injuries suffered.
6. MISTAKE
Mistake of defence refers to an error on the part of the defendant who did not have an intention of causing injury or harm. He is permitted to argue that he lacked sufficient information or knowledge that could have led to a different course of action.
The core elements or essentials of this defence include:
- He committed a bonafide mistake.
- His error was not in bad faith.
- His mistake was not committed with intention.
For instance: Kajdy, a physician, prescribes the wrong medication to a patient through miscommunication regarding the patient's medical history. The patient experience suffers from an adverse and opposite reaction of that drug. Nevertheless, Kajdy cannot be held liable for the injury as he acted on a good faith mistake.
Morrison v. Ritchie & Co, here the said defendant inadvertently published or we can say publicity a statement alleging/ claiming that the plaintiff had twins whilst the plaintiff was just for two months in the matrimonial bond. In that regard, the court found liability of the defendant to a case of defamation with regard to good faith as an irrelevant issue for the court to take in that particular case.
7. NECESSITY
Meaning and referring that the defence and principle of necessity is that the defendant's acts done were necessary to prevent greater harm or injury. A defendant can contend or plead that his or her actions done, considering the circumstances, were necessary to avoid injury or harm to themselves or others.
The main agents of this defence are:
- The defendant's act was necessary or what we say done to prevent a greater harm or injury.
- What ever defendant's done were not disproportionate to the harm or injury prevented.
For instance: A firefighter goes to a house to extinguish a fire that and some how he has caused some damage to the property. However, the firefighter cannot be held responsible for the damage since their actions done were crucial in protecting human life.
A Cope v. Sharpe, historic case where the defendant entered the plaintiff's property to prevent a fire reaching nearby land on which his master had shooting rights. As the defendant's act done was held to be reasonably necessary for the protection of the game from actual and imminent danger, the action of trespass was held not to lie against the defendant.
8. STATUTORY AUTHORITY
This defence means that the defendant is operating under the power given through statute. The defendant can present the argument that his acts were legally allowed and so they cannot be held liable for injuries or damages that might have arisen due to their actions.
This defence has the following ingredients :
- The said acts done by the defendant was in the authority of a statute.
- The acted act of the defendant were condoned by law.
For instance: A police officer with the help of his forces, uses to restrain a suspect while making an arrest. The said officer is not liable for the harm generated or injury caused because his actions were legally sanctioned or authorized by law.
The decision in the case of Hammer Smith Rail Co. v. Brand, it held the plaintiff had suffered damage of property due to noise and vibrating caused by trains passing from under the railway line erected, under the provisions of statue. It ruled that where building was permitted by the Statute, defendant cannot be claimed with any damages since that act gave perfect defence.
NECESSITY AS A GENERAL DEFENCE IN TORT.
An act causing damages is not liables for prosecutions when done out of necessity to prevent a greater harm or evil. It doesn’t matter whether the harm done was deliberately or not. One must know the difference between necessity and private defence and what distinguishes one from the other. In cases of necessity, it is an innocent person that suffers harm while in cases of private defence, the one who suffers harm is the plaintiff who is wrongdoer. Another difference between necessity and inevitable accident is a fact that in the case of necessity, the harm is intended while in inevitable accident, the harm occurs without the person actually willing it to happen.
The defence or principles of this necessity owns that there are situations in which an individuals oughts to be allowed to breach the law. This rule is based on the maxim salus populi suprema lex, or 'the welfare of the people is the highest law'. Normally, necessity consists of a defendant's contention that his criminal act was done to avert a greater harm by natural forces.
Necessity is a defence to both criminal law and civil law that is, if an act was necessary to prevent a greater harm, that can be used to avoid criminal and civil liabilities.
Meaning and Definition
Necessity as a defence is explained under the mentioned section 81 (of IPC) in the Indian Penal Code as:
“Act likely to cause harm, but done without criminal intent, and to prevent other harm. —Nothing is an offence merely by reason of its being done with the knowledge that it is likely to cause harm, if it be done without any criminal intention to cause harm, and in good faith for the purpose of preventing or avoiding other harm to person or property.”
“Explanation—It is again a question of fact on such an occasion whether the harm sought to be averted or avoided was of such a character and so imminent as to justify or to mitigate the peril of doing the act with a knowledge that it may likely cause harm”.
For Example: J, see everywhere fire, so pulls down houses that adjacent in order to prevent and stop the flames from spreading. He does this with the bona fide intention and thought to saving human life or property. So, it is founding wrong but his act done to prevented harm. J is not guilty of an offence.
Essentials of Necessity
- The harm caused was lesser than what would have occurred otherwise.
- the person reasonably believed that his actions were necessary to prevent imminent harm.
- there was no practical alternative available for avoiding the harm.
- the person died not to cause the threat of harm in the first place.
Restrictions of Necessity
It is said that there are some limitations or what we say restrictions of necessity following as:
The defence or the protection will not succeed in the first place if the necessity is arising out of the negligence act of the defendant or respondent himself.
There must be a real/ actual or imminent danger to the person or property.
Distinction is maintained between the safeguarding and protection of human life and the safety of property for obvious reasons.
In Cope v. Sharpe, the defendant went upon the plaintiff's property to prevent a fire from spreading to adjacent land where the master of the defendant or what we say defendant's master had shooting rights. The court held that the defendant or respondent was not liable for trespass because his actions were reasonably necessary to protect the game from a real and immediate threat.
In Carter v. Thomas, the trespasser, who had entered upon the plaintiff's premises or what we say in normal talking the property or house with good faith to extinguish fire at which the firemen had already been working, was not exempt from liability.
KINDS OF NECESSITY
There are two kinds of Necessity in Tort law.
Public Necessity & Private Necessity.
1. PUBLIC NECESSITY
Public Necessity is the acts of public authorities or what we say private individuals to prevent a public disaster that may cause damage to the community at large. This principle is called when someone trespasses in order to protect a greater group. Public Necessity is an absolute defence; that is, the person who trespasses is not liable to pay damages to the owner of the property. Generally, public servants like firefighters, police, army personnel, etc. plead public necessity.
For Example: The Russian Army forced its way into a building of M/s X to expel rioters who were stabbing citizens and causing many difficulties. In the process, the army damaged the said building. The owner of M/s X sued the Russian Government for the loss and claimed compensation. On the other hand, the Russian Government pleaded that their conduct was based on the reasons that were protecting the public. As such, the damage incurred should not be liable on them.
Surocco v. Geary- There was a serious fire case at San Francisco.
Plaintiff is attempting to move out some of his personal properties when flames were spreading within that region. The defendant is the Mayor. He was forced to pull down the plaintiff's house to make sure the advance of fire was slowed. The houses surrounding him are saved that way from destruction. Hence, plaintiff has filed suit against him that he could have saved some more if he had not demolished the plaintiff's house. According to this judgment, it has established the principle of necessity to stand with natural law in addition to breaking free from society and its governance. Individual rights must defer to the higher law of impending necessity. In this situation, the destruction of the plaintiff's home was necessary in order not to allow the fire to spread. The delay to await the taking out of more belongings from the plaintiff would make the demolition too late.
2. PRIVATE NECESSITY
Private necessity usually involves trespassing or interfering with someone's property to protect oneself or one's own property. Usually, a person has the right to continue this trespass or use the property as long as the emergency lasts. The concept of private defence becomes a partial defence for the defendant, which means even though the defendant raises private necessity after trespass, he is still liable to pay for all damages to the plaintiff's property which his act has caused. However, the defendant cannot be held liable for the nominal or punitive damages.
The principle of private necessity applies when:
It is fairly apparent that it is to avoid serious hurt to the person, or his goods or chattels
The entry is for the benefit of the person.
For instance, Shena was on her way walking on a public highway. Shena took Oggy's adjacent farmland to circumvent a part of the highway blocked by snow without making unnecessary damage to the field. Oogy resolved to sue Shena for trespassing, but Shena can claim right of way on the grounds of necessity because the highway is impassable.
The facts of the case Vincent v. Lake Erie Transportation Co. show that the defendant or the respondent was at the plaintiff's dock to unload cargo from his steamship.
When a violent storm came, he could not leave the dock safely so he tied the ship to the dock. However, with a sudden gust of wind, the ship collided into the dock causing heavy damages. Compensation must still be given even in case of private necessity if property has to be taken or damaged by someone else. Defendant kept the ship tied at the dock in an intentional way, otherwise the ship would have drifted away with greater loss and damage.
CONCLUSION
General defences in tort law play a very central role in justifying the protection of justice in giving fair chance to defend the defendant's acts against certain circumstances. These generally help defend against wrongful liability when the harm was beyond their reasonable powers or control. This is important to ensure that trust and balance are maintained in the legal system because it prevents a wholesale imposition of liability without regard for the case and judgments that reflect the nuances of each.
General defences will allow courts to look at specific circumstances in which a tortious act occurred, and by doing so, it will actually help in the allocation of blame because it ensures that the wrongdoer is penalized while protecting the other party who acted in good faith, necessity, or under inevitable conditions. For instance, a defence such as Act of God or Necessity takes into account scenarios where natural forces or dire circumstances compel certain actions that might otherwise fall under a legal wrong.
Such defences can be effective only when applied cautiously, considering all aspects, including the intent of the act, the proportion of harm caused in relation to the harm prevented, and precedents set by the ruling. The approach will always lead to an outcome in tort cases that is not only legally tenable but also just and fair.
General defences are indispensable to the justice system. They offer a framework for courts to give judgments that are both just and reasonable, thus avoiding undue penalties and the principle of fairness and proportionality which are core to tort law.
Disclaimer: All the study done based on the knowledge of the Author. Here the Author is not responsible for any loss or damages occurs to any visitor/viewer.
REFERENCES
R.K. Bangia: The Law of Torts, Allahabad Law Agency, 23rd edition, 2023.
Ratanlal & Dhirajlal, The Law of Torts, 26th edition, LexisNexis, 2023.
Ipleaders.in article on Necessity
Sehgal, Diganth Raj. "Necessity and Authorities of Necessity as a Defence in Tort." iPleaders, 2023, https://www.ipleaders.in/necessity-authorities-necessity-defence-tort/
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