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DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

LAW OF TORTSFINAL DRAFTGENERAL DEFENCES

Submitted to: Submitted by:Dr. R.K Yadav Shivani Chauhan (Assistant Professor) Roll no. - 127 B.A. (LL.B) 1st Semester

ACKNOWLEDGEMENT The whole case analysis in Law of Torts has been given shape and success by the effort of a lot of people who has contributed in it completion. I express my humble thanks to Dr. R.K. Yadav(Assistant Professor), my subject teacher of Basics of Case Law under whose supervision the whole project has been made and without whose teachings and insights this project could not have been fructified. I also extend my heartiest thanks to my seniors for their insights into the concerned final draft of the project and helping with me with everything I asked them. The role of the library department is also noteworthy. All the staff members helped me generously in getting the material and information I needed to complete this project.

TABLE OF CONTENT(1) INTRODUCTION...4(2) VOLENTI NON FIT INJURIA...5(3) PLAINTIFF, THE WRONGDOER6(4) INEVITABLE ACCIDENT7(5) ACT OF GOD..9(6) PRIVATE DEFENCE.11(7) MISTAKE12(8) NECESSITY14(9) STATUTORY AUTHORITY..16(10) BIBLIOGRAPHY .18

INTRODUCTIONThis chapter addresses defences to liability in tort. The concern is not to identify the rationales for specific defences (or lack thereof). Nor is it to determine the circumstances in which individual defences are enlivened (or should be enlivened). Rather, its purpose is to explain how defences operate as a coherent system. How many types of defences are recognised by tort law? What can be learned about a defence from the way in which it is categorised? Although defences are an important part of tort law and have existed since its inception, an analysis of this kind has never been undertaken. The chapter begins by defining the term defence. Taxonomy of defences will then be delineated. Thereafter, it will be suggested how a substantial number of defences should be categorised within the taxonomy. The analysis here will be illustrated with examples from commercial law where appropriate. Finally, it will be shown that the way in which defences are classified has important implications.There are generally 8 defences in law of torts. These are:(1) Volenti non fit injuria(2) Plaintiff, the wrongdoer(3) Inevitable accident(4) Act of god(5) Private defence(6) Mistake(7) Necessity(8) Statutory authority

VOLENTI NON FIT INJURIAVolenti non fit iniuria (or injuria) (Latin: "to a willing person, injury is not done") is a common law doctrine which states that if someone willingly places themselves in a position where harm might result, knowing that some degree of harm might result, they are not able to bring a claim against the other party in tort or delict. Volenti only applies to the risk which a reasonable person would consider them as having assumed by their actions; thus a boxer consents to being hit, and to the injuries that might be expected from being hit, but does not consent to (for example) his opponent striking him with an iron bar, or punching him outside the usual terms of boxing. Volenti is also known as a "voluntary assumption of risk."Volenti is sometimes described as the plaintiff "consenting to run a risk." In this context, volenti can be distinguished from legal consent in that the latter can prevent some torts arising in the first place. For example, consent to a medical procedure prevents the procedure from being a trespass to the person, or consenting to a person visiting your land prevents them from being a trespasser.There are some points to be kept in mind that:(a) The consent must be free(b) Consent must not be obtained by fraud(c) Consent must not be obtained under compulsion(d) Mere knowledge does not imply assent(e) Negligence of the defendantThough there are certain limitations on the scope of this doctrine:(a) In rescue cases(b) By the Unfair Contract Terms Act, 1977Important cases in this defence are:(a) Haynes v. Harwood(b) Wagner v. International Railway(c) Baker v. T.E.Hopkins & Son(d) Dann v. Hamilton

PLAINTIFF, THE WRONGDOERThis defence is based on the maxim Ex turpi causa non oritur actio which means no action rises from an immoral cause. So, when the action of the plaintiff is unlawful itself, it might lead to a defence in general. This maxim means that if the basis of the action of the plaintiff is an unlawful contract, he will not, in general, succeed to his action.It is doubtful whether the defendant can take such a defence under the law of torts and escape liability by pleading that at the time of the defendants wrongful act, the plaintiff was also engaged in doing something wrongful. The principle seems to be that the mere fact that the plaintiff was a wrongdoer does not disentitle him from recovering from the defendant for latters wrongful act. The plaintiff may have to answer for his wrongful act but he does not forfeit his right of action for the harm suffered. Thus, if a trespasser enters my premises, I cannot inflict unnecessary injuries upon him and if any such injury is caused, the trespasser is liable to an action for injury sustained.According to Sir Frederick Pollock, when the plaintiff himself is a wrongdoer, he is not disabled from recovering in tort unless some unlawful act or conduct on his own part is connected with the harm suffered by him as a part of the same transaction.Thus, it has to be seen as to what is the connection between the plaintiffs wrongful act and the harm suffered by him. If his own act is the determining cause of the harm suffered by him, he has no cause of action.For example, a bridge, under the control of the defendant, gives way when an overloaded truck, belonging to the plaintiff, passes through it. If the truck was overloaded, contrary to the warning notice already given and the bridge would not have given way if the truck was properly loaded, the plaintiffs wrongful act is the determining cause of the accident. In such a case, even if the bridge was not under proper repairs, the plaintiffs action will fail.

INEVITABLE ACCIDENTThe defence of inevitable accident in personal injury litigation is one that posits a non-tortious explanation for an accident. It asserts that where an accident is purely inevitable, and is not caused by the fault of either party, the loss lies where it falls.According to the authorities, once the plaintiff establishes a prima facie case of negligence, the onus will shift to the defendant to prove inevitable accident. In so doing, the defendant is required to show how the accident took place and that the loss of control of the vehicle could not have been avoided by the exercise of the greatest care and skill.A defendant may thus escape liability by showing one of two things:(i)the cause of the accident, and the result of that cause was inevitable; or (ii)all the possible causes, one or other of which produced the effect, and with regard to every one of these possible causes that the result could not have been avoided. This standard, though certainly a high one, is not a test of perfection.In light of the foregoing general principles, a plaintiff seeking to undermine or defeat a defendants reliance on the defence of inevitable accident must challenge with evidence and argument the defendants explanation of how the accident, collision or mishap occurred without his negligence. As is clear from a perusal of the recent jurisprudence, there are definite limitations on the availability of the defence and it is unlikely to prevail if the person seeking to invoke it caused or contributed in any way to the emergency situation.Some of the factors that will be relevant in considering whether the conduct of a driver can be characterized as negligent, such that the doctrine of inevitable accident ought not to be engaged, include: road conditions, weather, speed, the condition of the vehicle, the intensity of the vehicles headlights, the drivers experience and his/her familiarity with the roadway, the drivers reaction to the risk presented, any evasive action taken, other traffic on the roadway, and the physical and mental condition of the driver (ie. fatigued, distracted, dizzy, experiencing a medical crisis or condition, etc.).The defence of inevitable accident in personal injury litigation is one that posits a non-tortious explanation for an accident. Halsburys Laws of Canada, Negligence - V.5, characterizes this defence in the following terms:

Although once useful as a defence to the action for trespass, today defendants in negligence cases normally do not need to avail themselves of the plea of inevitable accident; all they have to do is deny that they were negligent. Still, courts will invoke this defence on occasion. It is not easy to escape liability by relying on inevitable accident.

Some important cases important in this defence are:(1) Assam State Coop., etc. Federation Ltd. V. Smt. Anubha Sinha(2) Shridhar Tiwari v. U.P. State Road Transport Corporation(3) Stanley v. Powell(4) Holmes v. Mather(5) Padmavati v. Dugganaika

ACT OF GODVis Major is derived from the Latin words vis major: vis (force)+ major(greater) i.e. an overwhelming force of nature having unavoidable consequences that undercertain circumstances can exemptone from the obligations of a contract. The term Vis Major is a superior force. In law it signifies inevitable accident. This term is used in the civil law in nearly the same way that the words Act of God is used in the common law. Generally, no one is responsible for an accident which arises from vis major. Act of God can be understood as a natural catastrophe which no one can prevent such as an earthquake, a tidal wave, a volcanic eruption, or a tornado. Acts of God are significant for two reasons:1) For the havoc and damage they wreak and2) Because often contracts state that "acts of God" are an excuse for delay or failure to fulfil a commitment or cause damage to a party for which another might be held liable.

Act of God as defined by Winfield and Jolowicz:Where 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 recognize the possibility, the Act of God as defence can be applied.

The Act of God was recognized by Blackburn J. in Rylands v. Fletcher.The facts of the case were that B, a mill owner, employed independent competent contractors to construct a reservoir to provide water for his mill. In the course of work, the contractors came across some old shafts and passages on Bs land. They communicate with the mines of A, a neighbour of B, although no one suspected this for the shafts were appeared to be filled with earth. The contractors did not block them up, and when the reservoir was filled, the water from it burst through the old shafts and flooded As mines.Here, Blackburn J. ruled that the defendant can excuse himself by showing that the escape was owing to the plaintiffs default or perhaps the escape was the consequence of vis major or the Act of God.Other important cases are:(1) Ramalinga Nadar v. Narayan Reddiar(2) Nicholas v. Marsland(3) Kallulal v. Hemchand

PRIVATE DEFENCEEvery person has the right to protect himself and his property and for this purpose, he can use the necessary force. Thus, if a person uses the necessary force to protect himself or his property and causes harm to another person, no action can be brought against him.There are two conditions for the use of force in self-defence. First, the use of force for self-defence will be justified only when there is an imminent threat to a person or his property. Secondly, the use of force must be in proportion to what is necessary in the particular circumstances. In other words, the use of force should not be more than the anticipated harm.For example, if a person strikes me, I cannot be justified to use a sword or a gun against him in self-defence. The force should not be excessive. What force can be used in the particular circumstances, to protect himself or his property, is a difficult question to decide. However this depends on the facts and circumstances of each case.

Consider this dispute between two people. When the defendant was passing in front of the plaintiffs house he aimed to shoot the plaintiffs dog that attempted to bite him. The dog ran away. But when the dog returned, the defendant shot the plaintiffs dog dead. It was held that the right of private defence could not be pleaded in this case. The act was unlawful because he shot at the dog at the time what it was not attacking and the force used was excessive and therefore he was liable to pay compensation.

The Texans for Public Justice (TPJ) was always in the forefront campaigning for comprehensive reforms in the civil laws in Texas. Dubious interpretations of the tort laws governing private defence has been a cause for concern because many innocent people were hauled to courts over minor issues. The earnest efforts of the TPJ have saved many people who would have been otherwise held responsible for acts not done by them.Some important cases in this defence are:(1) Bird v. Holbrook(2) Ramanuja Mudali v. M.Gangan(3) Collins v. Renison(4) Creswell v. SirlMISTAKEWhere the defendant acts under a mistaken belief of the circumstances they may be afforded the defence of mistake. Where a defendant acts under such a mistake, the mistake prevents them forming the mens rea of the crime and thus mistake is not really a defence as such, but relates to the absence of the elements of establishing liability. The defence of mistake was first recognised in R v Tolson (1889) 23 QBD 168 but has developed since then. Often the defence of mistake is complicated by being combined with other defences such as intoxication or self-defence (or both).

Initially a defence would be allowed if the mistake was both honest and reasonably held: A mistake as to law will not generally suffice, for the defence of mistake, since ignorance of the law is no excuse (Ignorantia juris non excusat)

Although a mistake of civil law may be sufficient to find the defence of mistake:A mistake of fact will suffice provided the mistake was such as to prevent the defendant forming the mens rea of the offence. Whilst initially the mistake was required to be both honest and reasonably held, in DPP v Morgan the House of Lords held that the mistake need only be honest.

There was no requirement that it was a reasonable mistake for the defendant to make.

The defence of mistake in relation to public/private defenceThe defence of mistake may be raised in conjunction with self-defence and prevention of crime where for example the defendant mistakenly believed he was under attack or using reasonable force in the prevention of crime. The same principle applies that the mistake must be honest, but need not be reasonably held.

Implications where the mistake is induced by intoxicationWhere the mistake is induced by voluntary intoxication, and the crime is one of basic intent, the defendant is not allowed the defence of mistake.If, however, the crime is criminal damage and the defendant is relying on the special defence in S.5(2) Criminal Damage Act, a mistake induced by voluntary intoxication will not bar the application of the defence.

Some important cases under this defence are:(1) Jaggard v Dickinson [1981] 1 QB 527 (2) R v Fotheringham (1989) 88 Cr App R 206(3) R v O'Grady [1987] QB 995 (4) R v Hatton [2006] 1 Cr App R 16

NECESSITYIn tort common law, the defense of necessity gives the State or an individual a privilege to take or use the property of another. A defendant typically invokes the defense of necessity only against the intentional torts of trespass to chattels, trespass to land, or conversion. The Latin phrase from common law is necessitas inducit privilegium quod jura privata, "Necessity induces a privilege because of a private right." A court will grant this privilege to a trespasser when the risk of harm to an individual or society is apparently and reasonably greater than the harm to the property. Unlike the privilege of self-defense, those who are harmed by individuals invoking the necessity privilege are usually free from any wrongdoing. Generally, an individual invoking this privilege is obligated to pay any actual damages caused in the use of the property but not punitive or nominal damages.

Private necessity is the use of another's property for private reasons. Well established doctrines in common law prevent a property owner from using force against an individual in a situation where the privilege of necessity would apply. While an individual may have a private necessity to use the land or property of another, that individual must compensate the owner for any damages caused. For example:A strong wind blows a parachuting skydiver off course from his intended landing zone. He must land in a nearby farmer's field. The skydiver tramples on the farmer's prized roses, and the farmer hits the skydiver on the head with a pitchfork. The skydiver can invoke the privilege of private necessity for trespassing in the farmer's fields but will have to pay for the damage caused to the roses. The farmer will be liable for battery because the use of force in defense of property is not privileged against an individual who successfully claims private necessity.In American law, the case most often cited to explain the privilege of private necessity is Vincent v. Lake Erie Transp. Co., 109 Minn. 456, 124 N.W. 221 (1910).

Public necessity is the use of private property by a public official for a public reason. The potential harm to society necessitates the destruction or use of private property for the greater good. The injured, private individual does not always recover for the damage caused by the necessity. In American law, two conflicting cases illustrate this point: Surocco v. Geary, 3 Cal. 69 (1853) and Wegner v. Milwaukee Mutual Ins. Co. 479 N.W.2d 38 (Minn 1991).

Some important cases are:(1) Leigh v. Gladstone(2) Cope v. Sharpe(3) Carter v. Thomas(4) Kirk v. Gregory

STATUTORY AUTHORITYA duty imposed by law, or an authority or permission given by law, constitutes a defence in all three legal systems analysed herein. Article 122-4 (1) of the new French Code pnal is crystal-clear in this respect: a person who commits an act prescribed or authorized by legislative or regulatory provisions is not criminally liable. Statutory duty and statutory authority are most often invoked to justify the acts of public authorities when they interfere with a persons property or personal rights. Examples of interferences with a persons property include compulsory purchase, nuisance to an occupier in the public interest, and the right of a bailiff to enter the dwelling of a debtor by force. Examples of interferences with a persons personal rights include the power of a police officer (provided all legal conditions are observed) to arrest a person for whom he has a judicial warrant or who has been caught flagrante delicto.

Under certain conditions private persons may rely, by way of defence, on orders emanating from a legitimate authority (le commandement de lautorit lgitime), or on a statutory permission, in order to escape liability for injury caused to another individual. Article 122-4 (2) of the new French Code pnal acquits a person from criminal liability when he or she accomplishes an act ordered by a legitimate authority, except if the act is manifestly illegal. In other words, the public authority involved must be legitimate, i.e. must have the competence to act and act within that competence, and the order itself may not be manifestly illegal or morally inacceptable. In contrast, English law does not recognize a general defence of obedience to orders, whether given by an administrative authority, or by a private person having authority (such as an employer): if a person orders another to commit a tort, they are both answerable as joint tortfeasors. In German law, the issue has most often arisen with regard to soldiers and enforcement officers carrying out orders. Whilst following an order or instruction does normally relieve them from liability, they may not obey an order if this would lead them to commit a crime or infringe human dignity. More generally, where someone acts under orders, or in compliance with statutory obligations, it would be wrong for him or her to adhere to a legal rule where that would be in contradiction with a fundamental rule or interest. The judgment of the BGH of 24 June 1953 reproduced below provides an illustration with regard to the denunciation to the Gestapo of a person who had made unpatriotic statements.

Some important cases under this defence are:(1) Vaughan v. Taff Valde Rail Co.(2) Hammer Smith Rail co. Brand(3) Smith v. London and South Western Railway Co.

BIBLIOGRAPHY(1) Law of Torts by Dr. R.K. Bangia(2) Law of Torts by Ratanlal and Dhirajlal(3) www.wikipedia.com