GENERAL DEFENCES IN TORT

    Edited by: Vaani Garg

    Torts: Torts are civil wrongs for which injured parties can seek legal redressal. ‘Tort’, a French word that means ‘wrong’, is derived from the Latin word “Tortum”, which means to twist. It implies to something crooked or twisted. It can be equated to a wrong and here it implies to a civil wrong. Thus law of torts applies to the acts that are twisted, wrong and unlawful.

    General Defences in Torts:

    Consent: (Volenti non fit Injuria)

    Volenti non fit Injuria means voluntary taking of risks. It’s when you choose to put yourself in a situation that causes injury. It implies that if person gives the consent regarding infliction of some harm on him, then he cannot ask for the legal remedy for the damages or harm caused. Thereby, his consent becomes a valid defense for the defendant.

    When a tort is committed, meaning that a defendant’s actions inferred with the plaintiff’s person or property, a plaintiff’s consent will excuse the defendant of the wrong doing. Although the 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. Consent may either be expressed or implied and it should be real and given without force, fear and fraud.

    Sometimes consent is ineffective under certain conditions. If the plaintiff lacks the capacity to consent, is coerced into consenting, or consents under false pretenses, the consent is not valid as a defense to the tort. Incapacity to give consent may arise due to the factors of insanity, intoxication or infancy.

    Elements of consent to present:

    • That the plaintiff had knowledge of the risk
    • That he fully appreciated the risk
    • That he freely and voluntary accepted the risk

    For instance, if you are spectator at a cricket match and the batsman hits a six, and ball lands on your head, then you cannot claim compensation from either the stadium authority or batsman because when you took the seat in match you accepted the risks that are part of sitting in stadium. Therefore if defendant can prove that plaintiff voluntarily put himself in a situation, then he can escape liability.

    The Plaintiff is the wrongdoer:

    The law excuses the defendant when the act done by plaintiff itself was illegal or wrong. This defense 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 defense in torts.

    In this case the defense includes that the plaintiff did something wrong which caused him the injury. Since the plaintiff did something wrong he cannot claim the damages for the injury caused to him.

    For example, a person who tries to illegally enter into house and gets bitten by defendant’s dog. The plaintiff cannot claim the compensation cause he himself was a wrong doer.

    Inevitable accident:

    When the injury is caused to a person by an event that could not be foreseen and avoided despite reasonable care on part of the defendant, then defense of inevitable accident must be used. There is no inevitable accident unless the defendant can prove that something happened over which he had no control and the effect of which could not have been avoided by exercise of care and skill.

    An example of a situation where this defense could be used is that of a person who while trying to separate two people fighting, hits another person accidentally. Here, clearly the injury was an accident and no negligence was involved.

    Act of God:

    “An act occasioned exclusively by violence of nature without the interference of any human agency.” – Black’s Law

    This includes the events over which the defendant has no control over occurs and the damage is caused by the forces of nature. In such case the defendant is not liable in tort law for such inadvertent damage.

    Act of God or Vis Major or Force Majeure may be defined as the circumstances which no human foresight can provide against, any of which human prudence is not bound to recognize the possibility of, and which, when they do occur therefore, are calamities that do not involve the obligation of paying for the consequences that result from them.

      Two requirement need to be satisfied to avail of this defense:

    • The injury must be caused by the effect of natural forces.
    • The natural forces must be unforeseen or the effects must be unavoidable.

    For example, If plaintiff’s crops damages due to breaking of defendant’s reservoir due to heavy rain. Then, defendant is not liable of act and he can use the defense of Act of God.

    Act done in relation to private defense:

    Nothing is an offence which is done in exercise of the right of private defense. Every person has a right, to defend: Firstly, his own body, and the body of any other person, against any offence affecting the human body; Secondly, The property, whether movable or immovable, of himself, or of any other person.

    In order to claim the defense following must be satisfied:

    • The defendant must be under a threat or attack.
    • The response must be necessary for self defense and not for retribution.
    • The response must be proportional to the attack or threat.

    For example, A is attacked by a mob who attempts to murder him. He cannot effectually exercise his right of private defence without firing on the mob, and he cannot fire without risk of harming young children who are mingled with the mob. A commits no offence if by so firing he harms any of the children.