By Aditi Agarwal, NUALS
Editor’s Note: The writer goes into detail with respect to the term defence and its meaning. She describes defence as conventionally used to refer to arguments used to persuade the court to conclude that the defendant is not to be blamed, whether the case be that of common law tort or that of crime. She lays out seven fundamental defences used in torts: Consent-where the plaintiff had agreed beforehand to the acts. This is a case of volenti non fit injuria. Then there is the case where the plaintiff himself is the wrongdoer (i.e.) where the cause of action arose out of the plaintiff’s illegal activities. The next defence talked about is vis major, or Act of God, where the damage caused is out of the control of both the plaintiff and defendant. Inevitable Incident is the term use to describe the next defence, in which the best has been done in order to prevent the incident, but it could not be averted. The next two are, in the editor’s opinion, closely related- that of necessity and of requirement by statutory authority. In these, the defendant acts in the interests of his own by either following a rule or carrying out an act without which his private interests would have been hampered.
Before we can proceed to evaluate the circumstances in which a defence can be used in any tort case it is absolutely essential to understand what the word “defence” means. The word “defence” bears several meanings in the tort context and a great deal of confusion has been spawned of a general failure by courts and commentators to make their intended meaning clear. Although conventionally the word defence is used to refer to those arguments which when used persuades the court to conclude that the defendant in a case is not guilty. So, they basically include “absent element defences” which are denials of the components of the tort that the plaintiff has allegedly committed. Now this can be done in two ways. First the defendant can deny that the tort was committed or second, the defendant can deny on the grounds of legal sufficiency in the allegations of the plaintiff, even if a tort has been committed.
Defence can also be used in a stricter sense in the case of “affirmative defences” where the result in a verdict is for the defendant even if all of the ingredients of the tort that the plaintiff contends were committed against him are present. Affirmative defences include absolute privilege, abuse of process, arrest, distress, honest opinion, immunity, limitation bars, necessity, qualified privilege, recapture of land or chattels, res judicata and self-defence. A defendant who relies on any of these rules seeks to avoid liability not by denying the plaintiff’s allegations but by going around them.
Then we need to discuss the “remedy restricting rules”. The word defence when used in relation to these rules encompasses the principles that limit the relief a plaintiff is entitled to. Some remedy restricting rules cut back the plaintiff’s entitlement to damages, such as the provision for apportionment for contributory negligence and the doctrine of mitigation of damage. Others prevent the plaintiff from enjoying particular remedies completely. Examples of the latter type of remedy restricting rule include the doctrines of laches and acquiescence. The law favours those who are vigilant and not those who slumber. However it is essential to note that in this case the defendant is not absolved of liability like the previous two cases.
Another very important point to be discussed while talking about defences in any law is the concept of “onus of proof”. Historically speaking, the evolution of that particular law is very important in that aspect. When in any law the burden of proof shifts from one party to another, the use of that principle of law as a defence is affected. Suppose that X is an affirmative defence to a given tort. If the legislature enacts a provision that states that the plaintiff bears the onus of disproving X, it would be stripped of its status as a defence.
These are the four fundamental concepts of defence and the different ways in which it is to be construed. Now we shall see some of the commonly known and recognised defences to any tort. The defences discussed in detail are:
- When plaintiff is the wrongdoer
- Inevitable accident
- Act of God
- Act in relation to Private Defence
- Act done in respect to statutory authority
In the discussion of each of these defences I have first given a small introduction of the defence, followed by the different aspects and conditions required to be fulfilled to successfully use the defence and then given a brief summary of some of the famous cases relating to that defence.
When a tort is committed, meaning that a defendant’s actions interfered with the plaintiff’s person or property, a plaintiff’s consent will excuse the defendant of the wrongdoing. Although a defendant’s conduct may be considered immoral, or harmful, if the plaintiff allows these interferences to occur, then the defendant is not considered to have committed a tort. Consent occurs when a plaintiff displays a willingness to participate in the defendant’s conduct. This consent can be express or implied. One of the most widely stated examples in this sense is that of a person who is hit by the ball while watching a match in a cricket stadium. The general understanding here is that when the person bought the ticket to watch the match itself he agreed or consented to suffer any such damage or face any such risks and so the players or stadium authorities are absolved from any sort of liability arising out of such an accident.
The defendant may infer consent from the plaintiff’s actions the way any reasonable man would. In some cases, silence and inaction may manifest consent when it is reasonable to assume that a person would speak or act if he objected to the defendant’s actions.
Suppose there is a pile of old things that you have kept aside to dispose or give away. Now if some worker takes an old painting from the pile in your presence and you don’t have any problem with that then, you cannot later claim the painting and it is reasonable to assume that the servant obtained your consent before taking it.
Also, if certain behaviour was previously consented in the past, the defendant may continue to regard this behaviour as acceptable until he is told otherwise. Suppose A owns a library and B his friend often comes and borrows books without necessarily informing A always and A too doesn’t have any objections to this, then B can assume that he has A’s consent always and can continue books unless expressly told not to do so by A.
Consent may not always excuse a defendant of liability. Sometimes consent is ineffective under certain conditions. If the plaintiff lacks the capacity to consent, is coerced into consenting, or consents under false pretences, the consent is not valid as a defence to the tort. Incapacity to give consent may arise due to the factors of insanity, intoxication or infancy. It may also arise due to temporary abnormalities like someone under the effect of a drug or alcohol or someone who is in a very stressful situation, or due to a permanent mental illness or disorder. This incapacity must interfere with the plaintiff’s ability to weigh the benefits and consequences of the defendant’s suggested conduct. A person suffering from bouts of insanity cannot be expected to be able to give proper consent and anyone who takes advantage of that fact and puts him under any risk of injury shall not have the defence of consent.
A case with relation to incapacity to give consent is that of Gillick v West Norfolk & Wisbeck Area Health Authority [i]. Mrs Gillick was a mother with five daughters under the age of 16. She sought a declaration that it would be unlawful for a doctor to prescribe contraceptives to girls under 16 without the knowledge or consent of the parent. The court refused to give such a declaration. Lord Fraser in his judgement said that:
It seems to me verging on the absurd to suggest that a girl or a boy aged 15 could not effectively consent, for example, to have a medical examination of some trivial injury to his body or even to have a broken arm set. Provided the patient, whether a boy or a girl, is capable of understanding what is proposed, and of expressing his or her own wishes, I see no good reason for holding that he or she lacks the capacity to express them validly and effectively and to authorise the medical man to make the examination or give the treatment which he advises. After all, a minor under the age of 16 can, within certain limits, enter into a contract. He or she can also sue and be sued, and can give evidence on oath. I am not disposed to hold now, for the first time, that a girl aged less than 16 lacks the power to give valid consent to contraceptive advice or treatment, merely on account of her age. Thus, we can see how the ability to give consent is determined in different cases with respect to the facts in the given situation.
Consent is usually expressed in law through the Latin phrase “Volenti non fit injuria”. A direct translation of the phrase is, ‘to one who volunteers, no harm is done’. It is often stated that the claimant consents to the risk of harm, however, the defence of volenti is much more limited in its application and should not be confused with the defence of consent in relation to trespass. The defence of volenti non fit injuria requires a freely entered and voluntary agreement by the claimant, in full knowledge of the circumstances, to absolve the defendant of all legal consequences of their actions.
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.
In Khimji V. Tanga Mombasa Transport Co. Ltd.[ii] the plaintiffs were the personal representatives of a deceased who met his death while travelling as a passenger in the defendant’s bus. The bus reached a place where road was flooded and it was risky to cross. The driver was reluctant to continue the journey but some of the passengers, including the deceased, insisted that the journey should be continued. The driver eventually yielded and continued with some of the passengers, including the deceased. The bus drowned with all the passengers aboard. It was held that the plaintiff’s action against the defendants could not be maintained because the deceased knew the risk involved and assumed it voluntarily and so the defence of volenti non fit injuria rightly applied.
For the defence to be valid it is necessary that the consent was obtained voluntarily by the plaintiff and there was no undue influence, misrepresentation or fraud involved.
In the case of R v. Williams[iii] the defendant was a singing coach. He told one of his pupils that he was performing an act to open her air passages to improve her singing but he was actually having sexual intercourse with her. It was held that her consent was vitiated by fraud. This case has been used to illustrate the validity of a consent which has been obtained by unfair means.
In another case[iv] the claimant sued his employers for injuries sustained while in the course of working in their employment. He was employed to hold a drill in position whilst two other workers took it in turns to hit the drill with a hammer. Next to where he was working another set of workers were engaged in taking out stones and putting them into a steam crane which swung over the place where the claimant was working. The claimant was injured when a stone fell out of the crane and struck him on the head. It was said that the claimant may have been aware of the danger of the job, but had not consented to the lack of care. He was therefore entitled to recover damages.
For a claim of volenti it is necessary that there is an agreement between the parties which may be express or implied. An implied agreement may exist where the claimant’s action in the circumstances demonstrates a willingness to accept not only the physical risks but also the legal risks. In Nettleship v. Weston[v], Lord Denning said:
“Knowledge of the risk of injury is not enough. Nothing will suffice short of an agreement to waive any claim for negligence. The plaintiff must agree expressly or impliedly to waive any claim for any injury that may befall him due to the lack of reasonable care by the defendant: or more accurately due to the failure by the defendant to measure up to the duty of care which the law requires of him”.
Also the plaintiff should have complete knowledge of the full nature and extent of risk involved before giving consent. Lord Diplock in the case Wooldridge v. Sumner[vi] pointed out that, “The consent that is relevant is not consent to the risk of injury but consent to the lack of reasonable care that may produce that risk… and requires on the part of the plaintiff at the time at which he gives his consent full knowledge of the nature and extent of the risk that he ran”.
The conventional understanding about the plea of volenti non fit injuria is that it is an affirmative defence to liability arising in the tort of negligence.[vii] However, Stephen Sugarman demonstrates that pleading the volenti maxim is simply a misleading way of asserting that one of the elements of the action in negligence is absent. The decision of the English Court of Appeal in Murray v Harringay Arena Ltd [viii]can be used to further prove this point. In the given case the plaintiff, who was six years old at the time, was injured by an errant puck while watching an ice hockey match. He failed in his bid to recover damages from the owner of the rink because he was found to have assumed the risk of injury by attending the match.The plaintiff failed not because he consented to the risk of injury (which was obviously impossible given his age) but because the rink owner was not negligent with respect to the plaintiff’s safety. The facts coalesce to reveal the absence of fault on the part of the defendant which is why the defence of consent was successful here.
This principle also applies to injuries caused during contact sports. A participant in sporting events is taken to consent to the risk of injury which occurs in the course of the ordinary performance of the sport. But to use this defence it is necessary to show that the rules of the sport were followed and that the players did not cause more harm than is reasonable in a game. In Blake v Galloway[ix] the plaintiff and defendant were taking a break from music practice and became involved in “high-spirited and good natured horseplay”. The plaintiff threw and struck the defendant with a piece of bark. The defendant, with no intention to cause harm, threw a piece back and struck the plaintiff in the eye, who suffered significant injury. The judges held that by participating in the game, the plaintiff must be taken to have impliedly consented to the risk of a blow on any part of his body, provided that the offending missile was thrown more or less in accordance with the tacit understanding or conventions of the game. If there are inherent risks in an activity, and someone consents to participating in the activity, they are held to have impliedly consented to being exposed to such risks.
In the medical field the importance of consent is very high. The element of consent is one of the critical issues in medical treatment. The patient has a legal right to autonomy and self determination enshrined within Article 21 of the Indian Constitution. He can refuse treatment except in an emergency situation where the doctor need not get consent for treatment. The consent obtained should be legally valid. A doctor who treats without valid consent will be liable under the tort and criminal laws. The law presumes the doctor to be in a dominating position, hence the consent should be obtained after providing all the necessary information. The patient may sue the medical practitioner in tort for trespass to person in case something goes amiss. Alternatively, the health professional may be sued for negligence. In certain extreme cases, there is a theoretical possibility of criminal prosecution for assault or battery.
WHEN PLAINTIFF IS THE WRONGDOER
The law excuses the defendant when the act done by the plaintiff itself was illegal or wrong. This defence arises from the Latin maxim “ex turpi causa non oritur action” which means no action arises from an immoral cause. So an unlawful act of the plaintiff itself might lead to a valid defence in torts. This maxim applies not only to tort law but also to contract, restitution, property and trusts. Where the maxim is successfully applied it acts as a complete bar on recovery. It is often referred to as the illegality defence, although it extends beyond illegal conduct to immoral conduct. This defence though taken very rarely has been in debate for a long time. The principle of “ex turpi causa non oritur action”, famously enunciated by Lord Mansfield as long ago as in the case of Holman v. Johnson[x]. In the case of Ashton v. Turner and another[xi], the claimant was injured when the defendant crashed the car in which he was a passenger. The crash occurred after they both had committed a burglary and the defendant, who had been drinking, was driving negligently in an attempt to escape. Justice Ewbank dismissed the claim holding that as a matter of public policy the law would not recognise a duty of care owed by one participant in a crime to another. He also added that even if there was a duty of care the claimant had willingly accepted the risk and knowingly sat in the car with the defendant. In Stone & Rolls[xii] a fraudster used a company of which he was the sole director and shareholder to commit a letter of credit fraud. Following the company’s insolvency, its liquidators, acting in the company’s name, sued its auditors in negligence for having failed to detect the fraud. The House of Lords held (by 3-2) that the claim was barred on the ground ex turpi causa, because the state of mind of the fraudster was to be attributed to the company, which was thus treated as the perpetrator of the fraud.
The law in Australia on the illegality defence as it applies in the negligence context was, until recently, more or less identical to that in England. However, this changed when, in Miller v Miller[xiii], the High Court of Australia held that joint and unilateral illegality cases should be governed by the same rule. That rule is that no duty of care will be owed to a plaintiff who was injured while committing an offence if recognising a duty would be inconsistent with the purpose of the criminal law statute that the plaintiff infringed.
This defence of ex turpi causa can be closely related to the legal maxims “jus ex injuria non oritur” which means that no right can arise out of a wrong and “Commodum Ex Injuria Sua Nemo Habere Debet” meaning that a wrongdoer should not be enabled by law to take any advantage from his actions. We have heard the common phrase that one who approached the courts must come with clean hands. The defence of illegality is close to this principle and works on the logic that when a person is doing a wrongful act he need not be helped by the state in getting damages as this would essentially be against public policy. In the case of National Coal Board v England Lord Porter[xiv] had expressly located the ex turpi causa maxim in a public policy rationale. Thus, wrongdoing on the part of the plaintiff would not necessarily preclude him from bringing a claim where the court could be satisfied that to provide redress for the plaintiff would not offend against policy. Considering the reliance on public policy in this principle another issue which arises is the validity of ex turpi causa as a defence in itself. Some legal jurists are of the opinion that instead of a defence it should act as a barrier to the claim. In doing so, the public policy rationale is strengthened through a refusal to recognise the validity of the claim in the first place. This logical conclusion can be arrived from the judgement in the case of Anderson v Cooke[xv] as well.
An important case which raised the questions of the defence of volenti non fit injuria and ex turpi causa was Pitts v Hunt.[xvi] After an evening of heavy drinking the unlicensed and uninsured owner of a motor-cycle drove the cycle on a public road in a reckless and dangerous manner which the plaintiff, as pillion passenger, was found to have actively encouraged. There was an accident in which the rider was killed and the plaintiff badly injured. In the plaintiff’s action in negligence, the judge dismissed the claim against the first defendant, the personal representative of the rider, on the ground that the rider owned the plaintiff no duty of care, by reason of the maxim ex turpi causa non oritur actio. He held, further, that although the plaintiff had clearly accepted the risk of negligence on the rider’s part, s.148(3) of the Road Traffic Act 1972 disentitled the first defendant from relying on the defence of volenti non fit injuria, and that the plaintiff was 100% contributorily negligent. The plaintiff appealed.
Lord Beldam said that it followed from the public policy underlying the Road Traffic Acts that the claim must fail, as if anyone else had been killed the facts would have amounted to manslaughter, not merely by gross negligence, but by the doing of a dangerous act either with the intention of frightening other road users or knowing, but for self-induced intoxication, that it was likely to do so. The judge’s decision on volenti was correct. Since s.1(1) of the Law Reform (Contributory Negligence) Act 1945 presupposed that before the section could apply there must have been fault by both parties, and liability then had to be apportioned, the judge’s finding of 100% contributory negligence was wrong in principle.
Justice Balcombe, concurring, said that in the circumstances the rider owed no duty of care to the plaintiff. Justice Dillon, also concurring, said that on the facts the plaintiff’s action arose directly ex turpi causa; it was not a case of merely incidental unlawful conduct.
VIS MAJOR OR ACT OF GOD
Act of God is a defence used in cases of torts when an event over which the defendant has no control over occurs and the damage is caused by the forces of nature. In such cases the defendant will not be liable in tort law for such inadvertent damage. Act of God or Vis Major or Force Majeure may be defined as circumstances which no human foresight can provide against any of which human prudence is not bound to recognize the possibility, and which when they do occur, therefore are calamities that do not involve the obligation of paying for the consequences that result from them. Black’s Law Dictionary defines an act of God as “An act occasioned exclusively by violence of nature without the interference of any human agency.” A natural necessity proceeding from physical causes alone without the intervention of man. It is an accident which could not have been occasioned by human agency but proceeded from physical causes alone.”When a defendant pleads act of God as an answer to liability, he may deny that he was at fault. Sometimes, however, the defendant, when he relies on this plea, denies causation. He may concede that he was negligent but contend that, even if he had taken reasonable care, the damage about which the plaintiff complains would still have occurred and hence he should not be held guilty for those damages. To understand this we an illustration can be discussed. Suppose that D, an occupier, negligently omits to bring a dangerously unstable fence on his property into repair. During a ferocious storm the fence collapses onto his neighbour’s (P’s) house. P sues D in negligence. D relies on the defence of Act of God and brings unchallenged expert evidence to show that the storm was so fierce that even a sturdy fence would have given way. In pleading act of God, D is not denying fault. He is denying that his fault caused P’s damage. This is a way in which the defence of Vis Major can be used. The essential conditions that the defendant needs to prove to be able to successfully use the defence of Act of God are as follows.
Firstly, it is important that the event that occurred was due to the forces of nature or unnatural circumstances. The event should be proved to be in excess of the normal standards. So only in cases of heavy torrential rainfall or natural disasters like earthquakes, tsunami etc this defence can be invoked. A regularly goes to a park and gets injured one rainy day when a branch accidentally falls on him. The park authorities cannot use the defence of act of god as the rainfall was normal and they were negligent in not maintain the park during the monsoons when it is reasonably foreseeable that the trees need more maintenance during the rains to avoid such an event from occurring.
In the case of Nichols v. Marshland[xvii] the defendant has a number of artificial lakes on his land. Unprecedented rain such as had never been witnessed in living memory caused the banks of the lakes to burst and the escaping water carried away four bridges belonging to the plaintiff. It was held that the plaintiff’s bridges were swept by act of God and the defendant was not liable.
In another case Ryde vs. Bushnell (1967), Sir Charles Newbold observed, “Nothing can be said to be an act of God unless it is an occurrence due exclusively to natural causes of so extraordinary a nature that it could not reasonably have been foreseen and the result avoided”.
It is also important to prove that the defendant had no knowledge or could not have done anything about the event to try and reduce the damages. As set out in Tennant v. Earl of Glasgow[xviii] “Circumstances which no human foresight can provide against, and of which human prudence is not bound to recognize the possibility, and which when they do occur, therefore, are calamities that do not involve the obligation of paying for the consequences that may result from them” fall under the category of Act of God.
Greenock Corp. v. Caledonian Railway Co.[xix] contrasts with the decision in Nichols. The House of Lords criticised the application of the defence in Nichols v. Marshland. In this case, the Corporation obstructed and altered the course of a stream by constructing a padding pool for children. Due to rainfall of extraordinary violence which would normally have been carried away by the stream overflowed and caused damage to the plaintiff’s property. It was held that rainfall was not an Act of God. The House of Lords followed Rylands in holding that a person making an operation for collecting and damming up the water of a stream must so work as to make proprietors or occupants on a lower level as secure against injury as they would have been had nature not been interfered with. Nichols was further distinguished on two bases: the escape in Nichols was from a reservoir rather than a natural stream, and a jury in Nichols found the flood was due to an act of God. There had been ‘no negligence in the construction or maintenance of the reservoirs,” and “the flood was so great that it could not reasonably have been anticipated’.
In the case of Blyth v. Birmingham Water Works Co[xx] the defendants had constructed water pipes which were reasonably strong enough to withstand severe frost. There was an extraordinarily severe frost that year causing the pipes to burst resulting in severe damage to the plaintiff’s property. It was held that though frost is a natural phenomenon, the occurrence of an unforeseen severe frost can be attributed to an act of God, hence relieving the defendants of any liability. In the Indian case of Ramalinga Nadar v. Narayana Reddiar[xxi]the plaintiff had booked goods with the defendant for transportation. The goods were looted by a mob, the prevention of which was beyond control of defendant. It was held that every event beyond control of the defendant cannot be said Act of God. It was held that the destructive acts of an unruly mob cannot be considered an Act of God.
Thus we have seen how the defence of Act of God can be used. Now we shall see another defence which is very closely related to this one.
An inevitable accident is one which could not have been possibly been avoided by the exercise of due care and caution. Charlesworth on Negligence, 4th Edn, in paragraph 1183 describes an ‘inevitable accident’ as follows:–
“There is no inevitable accident unless the defendant can prove that something happend over which he had no control and the effect of which could not have been avoided by the exercise of care and skill.’
In A. Krishna Patra v. Orissa State Electricity Board[xxii], The Orissa High Court defined ‘Inevitable accident’ as an event which happens not only without the concurrence of the will of the man, but in spite of all efforts on his part to prevent it.
In the pre nineteenth century cases, the defence of inevitable accident used to be essentially relevant in actions for trespass when the old rule was that even a faultless trespass was actionable, unless the defendant could show that the accident was inevitable. This is however not relevant anymore. The emerging conception of inevitability can be seen most clearly in Whitelock v.Wherwell[xxiii], the bolting horse case from 1398. The complaint in Whitelock was unusual because the plaintiff, rather than just reciting that the defendant had hit him with force and arms, also alleged that the defendant had “controlled the horse so negligently and improvidently” that it knocked him down. The defendant conceded that the horse had knocked down the plaintiff, but pleaded that the plaintiff’s fall was “against the will” of the defendant. The defendant went on to explain that he had hired the horse without notice of its bad habits, that it ran away with him as soon as he mounted it, and that he “could in no way stop the horse” although he “used all his strength and power to control” it. It was a plea of inevitable accident. The collision may have been inevitable, but it had become inevitable by virtue of the defendant’s negligence, and was thus not held to be an accident.
In another case, Stanley v. Powell[xxiv] the plaintiff was employed to carry cartridge for a shooting party when they had gone pheasant-shooting. A member of the party fired at a distance but the bullet, after hitting a tree, rebounded into the plaintiff’s eye. When the plaintiff sued it was held that the defendant was not liable in the light of the circumstance of inevitable accident.
In the case of Fardon v. Harcourt-Rivington[xxv] the defendant parked his saloon motor car in a street and left his dog inside. The dog has always been quiet and docile. As the plaintiff was walking past the car, the dog started jumping about in the car, smashed a glass panel, and a splinter entered into the plaintiff’s left eye which had to be removed. Sir Frederick Pollock said: “People must guard against reasonable probabilities but they are not bound to guard against fantastic possibilities” In the absence of negligence, the plaintiff could not recover damages.
The use of inevitable accident in early actions interpreted inevitability as impracticality. In the present scenario, to speak of inevitable accident as a defence, therefore, is to say that there are cases in which the defendant will escape liability if he succeeds in proving that the accident occurred despite the use of reasonable care on his part, but is also to say that there are cases in which the burden of proving this is placed upon him. In an ordinary action for negligence, for example, it is for the claimant to prove the defendant’s lack of care, not for the defendant to disprove it, and the defence of inevitable accident is accordingly irrelevant and it is equally irrelevant in any other class of case in which the burden of proving the defendant’s negligence is imposed upon the claimant.
There was a major shift in the use of inevitable accident as a defence after the rule of strict liability was evolved after Rylands v. Fletcher[xxvi]. The plea of inevitable accident lost its utility in cases involving accidents in any enterprise dealing with hazardous substances or which is inherently dangerous. As laid down in M C Mehta v. Union of India[xxvii], inevitable accident in any form is no defence to a claim based on the rule of strict liability which is not subjected to any exception.
ACTS DONE FOR PRIVATE DEFENCE
Every individual has the right to protect his life and his property and in doing so he may use certain amount of force if necessary. This right doesn’t extend to protecting just yourself and your own family members but all other people and their property in general. The law of torts recognises this right and so any act done by a person in exercise of this act will not give rise to a tortiuous liability.
To use this defence three conditions need to be satisfied. Firstly, there must be a real and imminent threat to the defendant. A very widely stated illustration in this reference is where a ferocious dog starts barking violently at you but doesn’t bite. And then when it turns back and starts walking away if you hit it or throw a stone at it you cannot claim private defence. This is because the dog was no longer a threat to you after it turned away and started walking back and so the act committed by you is wrong and cannot be justified under the defence of private defence.
Also it needs to be shown that the force used was only for the purpose of protection or private defence and not for revenge. There should be no mala fide or bad intention involved for a successful private defence claim. Example: A and B lived in houses adjacent to each other and were not in very good terms. One day A’s cow entered B’s house and destroyed some of his plants. B gets angry and shoos the cow away, but later he plans to take revenge on A and shoots at it. He claims he did this in private defence but this claim shall fail because it is evident that he used more force than that was necessary and had wrong intentions while doing the act. This brings us to the third essential component of the defence of private defence, which is, the force used by the defendant should be in proportion to the act committed and enough to ward off the imminent danger. Suppose a person installs an electric wired fence around his property to keep away trespassers without any warning signs at all. He is not only doing an act which is grossly negligent but also he doesn’t have the right to claim private defence as the means used are way more dangerous than required.
In case of protection of property it is essential that the person must be in possession of the property at the time of the incident. It means that if a person is staying in a house on rental then he has the right to defend the property in which he is staying. The owner also has such right but he must be in possession of the property. A person who does not have possession of the land may use reasonable force against persons who obstruct him in carrying out his own duties. In case of trespass one must use reasonable force in the course of protecting the property.
The case of Bird v. Holbrook,[xxviii] deals with the defence of protection of property. Holbrook, the defendant set up a spring-gun trap in his garden in order to catch an intruder who had been stealing from his garden. He did not post a warning. Bird, the petitioner chased an escaped bird into the garden and set off the trap, suffering serious damage to his knee. Bird sued Holbrook for damages. It was held that while setting traps or “man traps” can be valid as a deterrent when notice is also posted, D’s intent was to injure someone rather than scare them off. Hence he was held liable.
The famous case of Morrisv. Nugent[xxix] , discusses the importance of the presence of a threat at the time when the act of private defence is committed. In the case as the defendant was passing by a house the defendant’s dog came and bit him. When the defendant turned around and raised his gun the dog ran away but he shot the dog anyway. It was held that the defendant’s act was not justified as there was no real threat at the time the defendant shot and so he could not claim the plea of private defence.
The idea behind this principle is that it is the State that shall mete out punishment for the wrong doer and the defendant cannot use force to that effect. He only has the right to defend himself and cannot do anything further than that.
The defence of necessity is very closely related to that of private defence. In tort common law, the defence of necessity gives the State or an individual a privilege to take or use the property of another. A defendant typically invokes the defence of necessity only against the intentional torts of trespass to chattels, trespass to land, or conversion. It is often said that necessity knows no law. This defence has been recognised on the principle of Salus Populi Suprema Lex i.e. the welfare of the people is the Supreme Law. Hence the act which causes certain intentional damage is excused when done for the greater good of the people or to avoid any greater harm. The Latin phrase “necessitas inducit privilegium quod jura private” which highlights this defence literally translates to necessity induces a privilege because of a private right.
If A sees a small fire starting on a field nearby and trespasses B’s farm to reach the place and extinguish it, he can claim the defence of necessity and he shall have not committed trespass. Surroco v. Geary[xxx] is a case based on very similar facts. Wildfires had swept through San Francisco around the time when this incident occurred, destroying houses and businesses. Surocco’s house was directly in the path of the fire, and he was racing to get his possessions out of the house as quickly as possible before the house was consumed. Geary, the mayor of San Francisco, ordered the fire department to demolish Surocco’s house so that the fire would not spread any further into the neighbourhood. The fire department complied, using dynamite to level Surocco’s house. Surocco sued Geary, claiming that had Geary not ordered the fire department to blow up his house, Surocco could have saved more of his personal possessions. The court, however, found that the public necessity defense applied because the damage to the city would have been far worse if Geary had not given the order to have Surocco’s house demolished.
In the case of Dhania Daji vs. Emperor [xxxi] the accused was a toddy-tapper. He observed that toddy was being stolen from the trees regularly. To prevent it, he poisoned toddy in some of the trees. He sold toddy from other trees. However, by mistake, the poisoned toddy was mixed with other toddy, and some of the consumers injured and one of them died. He took the plea of necessity however it was rejected and he was prosecuted.
The limits of this defence of necessity were closely examined in the case of Olga Tellis & Ors v. Bombay Municipal Corporation[xxxii]. Under the Law of Torts, necessity is a plausible defence, which enables a person to escape liability on the ground that the acts complained of are necessary to prevent greater damage, inter alia, to himself”. The defence is available if the act complained of was reasonably demanded by the danger or emergency. In this case the slum dwellers claim of necessity was not accepted and they had to vacate the public spaces which they had encroached upon.
Private necessity is the use of another’s property for private reasons. A property owner cannot use 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.
Vincent v. Lake Erie Transportation Co[xxxiii]. is one of the most important and commonly cited American cases relating to private necessity. A steamship owned by Lake Erie Transportation Co. was moored at Vincent’s dock to unload cargo. A storm arose and the vessel was held secure to the dock causing $500 in damage to the dock. Vincent sued to recover damage to the dock and the jury decided in favour of Vincent. The defendant appealed, alleging that it was not liable under the defence of private necessity. The court held that while the defendant cannot be held liable for trespass due to private necessity, he used the plaintiff’s property to preserve his own and is therefore liable for resulting damages to the plaintiff. If the boat had remained secured to the dock without further action by the defendant, he would not have been liable. He was held liable because affirmative measures were taken to secure the boat.
ACT DONE IN RESPECT TO STATUTORY AUTHORITY
When the commission of what would otherwise be a tort, is authorized by a statute the injured person is remediless. This is unless legislature has thought it proper to provide compensation to him. The statutory authority extends not merely to the act authorized by the statute but to all inevitable consequences of that act. But the powers conferred by the legislature should be exercised with judgment and caution so that no unnecessary damage is done, the person must do so in good faith and must not exceed the powers granted by the statute otherwise he will be liable.
For example, if there is a railway line near your house and the noises of the train passing disturbs then you have no remedy because the construction and the use of the railway is authorized under a statute. However, this does not give the authorities the license to do what they want unnecessarily; they must act in a reasonable manner. It is for this reason that we see that there are certain guidelines that need to be followed during construction of public transport facilities.
The philosophy behind this principle is that the lesser private rights must yield to the greater public good. Hence the state and people working for the state are given certain immunity and are allowed to do acts in pursuance of the public order even if they may lead to tortious liability. The extent to which this immunity is available to a public authority depends on whether the authority is absolute or conditional.Such a condition may be express or implied. In case of absolute statutory authority the immunity is available against both the act and its natural consequences. If absolute, then the authority is not liable provided it has acted reasonably and there is no alternative course of action.
In Kasturi Lal v. State of UP[xxxiv], the plaintiff had been arrested by the police officers on a suspicion of possessing stolen property. On a search of his person, a large quantity of gold was found and was seized under the provisions of the Code of Criminal Procedure. Ultimately, he was released, but the gold was not returned as the Head Constable in charge of the malkhana (wherein the said gold was stored) had absconded with the gold. The plaintiff thereupon brought a suit against the State of UP for damages for the loss caused to him. It was found by the courts below, that the concerned police officers had failed to take the requisite care of the gold seized from the plaintiff, as provided by the UP Police Regulations. When the matter was taken to the Supreme Court, the court found, on an appreciation of the relevant evidence, that the police officers were negligent in dealing with the plaintiff’s property and also, that they had also not complied with the provisions of the UP Police Regulations in that behalf. In spite of the said holding, the Supreme Court rejected the plaintiff’s claim, on the ground that “the act of negligence was committed by the police officers while dealing with the property of Ralia Ram, which they had seized in exercise of their statutory powers. The power to arrest a person, to search him and to seize property found with him, are powers conferred on the specified officers by statute and in the last analysis, they are powers which can be properly categorized as sovereign powers; and so, there is no difficulty in holding that the act which gave rise to the present claim for damages has been committed by the employee of the respondent during the course of its employment; but the employment in question being of the category which can claim the special characteristic of sovereign power, the claim cannot be sustained.”
In Metropolitan Asylum District Board v. Hill[xxxv], a local authority being empowered by a statute to erect a small-pox hospital was restrained from erecting it at a place where it was likely to prove injurious to the residents of the locality. The authority to construct a hospital was construed as impliedly conditional only, i.e. to erect the hospital provided that the hospital authorities selected a site where no injurious results were likely to be caused to others.
Thus we have seen how the various general defences in torts can be used. Apart from these defences there are others too which are sometimes used. Death for example is now used as a defence only in cases of defamation alone. And truth is widely used as an affirmative defence in defamation cases too. Mistake is a fault negating absent element defence to torts that require proof of certain states of mind or negligence on the part of the defendant. The defence of act of third party can function as a causation denying absent element defence. Consider the tort of private nuisance. In order to establish liability in this tort the plaintiff must be able to show that his right to enjoy his land was unreasonably interfered with and that the defendant was responsible for the interference. The defendant can prevent the plaintiff from discharging his onus by demonstrating that the nuisance was caused by a third party. Thus, defendants have been absolved of liability in nuisance in respect of interferences on their land consisting in falling roof tiles and burning refuse on the basis that third parties were responsible for creating them.
The purpose of the paper was to highlight the importance of understanding the term defence itself as it is used in tort law and then show the various torts and the ways in which they can be applied to various civil wrongs.
Edited by Nikhil Variyar
[i]Gillick v West Norfolk & Wisbeck Area Health Authority,  AC 112 House of Lords
[ii] Khimji V. Tanga Mombasa Transport Co. Ltd  E.A. 419
[iii] R v. Williams  1 KB 340
[iv] Smith v Baker & Sons  AC 325
[v]Nettleship v. Weston  3 WLR 370
[vi]Wooldridge v. Sumner  2 QB 43
[vii]Winchester v Solomon, 322 Mass. 7
[viii]Murray v Harringay Arena Ltd,  WN 38
[ix] Blake v Galloway  EWCA (Civ) 814
[x] (1775) 1Cowp 341
[xi] Ashton v Turner and Anr.  l QB
[xiii]  HCA 9; (2011) 275 ALR 611
[xiv] National Coal Board v England  AC 403 (HL
[xvi] Pitts v Hunt  1 QB 24 (CA)
[xvii] Nichols v. Marshland (1876) 2 ExD 1
[xviii] Tennant v. Earl of Glasgow House of Lords, (1864) 2 M (HL) 22
[xix]  AC 556
[xx] (1856) 11 Ex Ch 781
[xxi] AIR 1971 Ker 197
[xxii]AIR 1997 Orissa 109
[xxiii]43 Emory L.J. 57
[xxiv] Stanley v Powell  1 QB 86 (QBD)
[xxv] (1932) 146 LT 391 (392)
[xxvi] (1868) LR 3 HL 330
[xxvii] (1987) 1 SCC 395
[xxviii] 4 Bing. 628, 130 Eng. Rep. 911 (1825).
[xxix] 7 Car. & P. 572
[xxx] 3 Cal. 69, 1853 Cal.
[xxxi] (1868) 5 BHC (CrC) 59)
[xxxii] AIR1986SC180, 1985(2)SCALE5
[xxxiii] 109 Minn. 456, 124 N.W. 221, 1910 Minn.
[xxxiv]AIR 1965 SC 1039
[xxxv](1889) LR 4 PC 628