Defence to various kinds of individual and collective liabilities
The common defences of Inevitable Accident, Act of God, Plaintiff as the
wrongdoer, statutory authority are available to each and every defendant for a
tortuous conduct. However, in the module we shall specifically discuss the
defences under the heads of Strict Liability and Vicarious Liability.
The Law Commission recommended four exceptions to the rule of State Liability
(i.e., the following defences should be made available to the:
Defences To Strict Liability
- Act of God (vis major):
A direct violent, sudden, and irresistible act of
nature as could not, by any amount of ability, have been foreseen or if
foreseen, could not by any amount of human care and skill have been resisted.
Thus those acts which are occasioned by the elementary forces of nature,
unconnected with the agency of man or other cause will come under the category
of act of God, e.g., storm, tempest, lightning, extraordinary fall of rain,
extraordinary high tide, extraordinary severe frost, or a tidal bore which
sweeps a ship in mid water.
The mere fact that Vis Major co-existed with or followed on the negligence is no
- Wrongful act of a third party:
A Landlord using his premises in an ordinary
and proper manner is bound to exercise all reasonable care, but he is not
responsible for damage not due to his own default, whether that damage caused by
inevitable accident or wrongful acts of third persons.
- Plaintiff's own Fault:
The faults of plaintiff or his negligence could be
used as a defence against strict liability since defendant was not at fault in
certain cases and plaintiff still try to get them penalized under the rule of
- With consent of the plaintiff:
There are many instances where both plaintiff
and defendant have agreed on making use of certain equipment or area for benefit
of both but still plaint is filed for damages by plaintiff. Under such
circumstances this defence comes into play.
- Statutory Authority:
"No action will lie for doing that which the legislature
has authorized, if it be done without negligence, although it does occasion
damage to anyone; but an action does lie for doing that which the legislature
has authorized, if it be done negligently." The statute must authorize the use
of the dangerous thing either expressly or by necessary implication.
Vicarious LiabilityIn the cases of Vicarious Liability there are few defenses which could be used
by the defendant who is the master or principal of the defaulter:
In normal circumstances the negligence of servant during the
course of employment makes the master/principal liable too. However if the
negligent act is proved beyond the course of employment then the master cannot
be held liable.
- Unauthorized Act:
If the unauthorized and wrongful act of the servant is not
so connected with the authorized act as to be a mode of doing that authorized
act, then the master is not liable, for in such a case the servant is not acting
in the course of employment, but is going outside it.
- Criminal Act:
The primary exception arises through statutory interpretation
where the verb used to define the action in the actus reus is both the physical
action of the employee and the legal action of the employer. The holder of
rights can grant a license to another or permit another to do something that
would otherwise have been unlawful. Since the minds of master and servant would
always differ during and considering the criminal act, so master at most times
would not be liable.
- Sovereign Function:
The doctrine of 'sovereign immunity' implies that a State
can claim immunity from law just because it is sovereign ('the king can do no
wrong'). The defence could be made in accordance to the course of employment
- Act of State:
It mean an act of the sovereign power directed against another
sovereign power or the subject of another sovereign power not owing temporary
allegiance, in pursuance of sovereign rights.
- Judicial acts:
It means act done by judicial officers and persons executing
warrants and orders of judicial officers.
- Political Functions:
Acts done in exercise of political functions of state
e.g., foreign affairs; diplomatic, consular and trade representation; war and
peace; acts in emergency; etc.
- Defence Forces:
Acts done in relation to defence forces like Combatant
activities of the Armed Forces during the time of war; acts done in the exercise
of the powers vested in the Union for purpose of training or maintain the
efficiency of the Defence Forces.
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