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General Defences In Law Of Tort

General Defences: Nature and Scope

A defence is a plea put forth by the defendant against the claims of the plaintiff. The following are the defences open to a defendant in an action for tortious liability.
  1. Volenti non-fit injuria.
  2. Inevitable accident.
  3. Act of God.

Volenti non fit injuria (Also called leave and licence):

This means that ‘if the suffering is willing, no injury is done. Accordingly harm or even grievous hurt may be inflicted on a person for which he has no remedy if he has consented to take the risk. To this group belong injuries sustained in lawful games or sports or surgical operations. The origin of this can be traced to the writings of Aristotle. Roman jurists had recognized it. Later Bracton explained it in his De Legibus Angliae.

The modern meaning is confined to the injuries sustained by persons. Here the risk to which a person gives his consent is the risk of an operation being unsuccessful, similarly, in respect of injured but, if he is injured in a legal incident then, there is no injury because he has consented to the legal risk which is natural in such sports or events. The consent is not merely to the physical risk, but to the legal risk as well. Consent may be express or implied.

This maxim is subject to a number of exceptions:

  1. The game or sports or the operations must not be one which is banned by law. Football, Cricket, Hockey etc. are lawful games. However, boxing with open fists, duel with poisonous swords are legally prohibited. Similarly notoriously dangerous processes in cinema shootings. In such cases the maxim does not apply. The injury may be sustained by the persons who are participating in the games or by the spectators or by third parties.

  2. Consent: The consent must be free and voluntary. If consent is obtained by fraud it is no consent. In a case a music teacher obtained the consent from his pupil fraudulently to improve her voice and seduced her. Held: Music teacher was liable.

  3. Knowledge does not necessarily imply consent. The test of consent is objective, for the rule is not Scienti (Knowledge), but volenti non fit injuria. This is evident from two leading cases:
    1. Thomas v. Quarter Maine:
      In this case, Thomas, working in a Brewery, was removing the top roof of a boiling vat. But the lid came off suddenly and he fell into another vat containing scalding liquid and was injured. It was held that the damage was accidental to the legal act and hence the defendant was not liable. This was a wrong decision. The error was corrected in the leading case:

    2. Smith v. Baker:
      In this case a crane was jibbing from one place to another. The plaintiff p had no notice of it but had the knowledge of jibbing work being carried on by D. He knew the possible risk, involved, but was not warned as to when the jibbing work commenced. A stone glanced off from the crane and hit P who was injured. The House of Lords held that D was liable: Mere knowledge was not sufficient according to the court.

  4. Negligence: Cases of negligence are exceptions to the rule. In Dann v. Hamilton, P a lady passenger had knowledge that D who was driving a Taxi, was under the influence of drink. There was an accident due to negligence of the driver and P was injured. Held : D liable.

  5. Rescue cases: In circumstances where a person goes out to rescue another, the maxim does not apply. The leading case is Haynes v. Harwood. In this case a policeman P darted out from his police station to stop a van run by horses without a driver in a crowded street. The defendant D had left the van unattended on the highway and the horse had bolted when some boys threw stones at the horse. The police-man went to rescue and to stop the horses, but was seriously injured in this process. Held: D liable.

Inevitable accident:

Accidents are of two kinds:

  1. Act of God (Vis major)
  2. inevitable accident.

In Act of God there is the operation of natural forces so unexpected that no human foresight or skill could reasonably be expected to anticipate. In inevitable accident, the accident is not avoidable by any such precautions as a reasonable man doing such an act then and there could be expected to take. (Pollock)

Inevitable accident is a defence recognized in law. Hence, the defendant may set up a plea and prove that act was beyond a reasonable man and hence no liability would arise.

Leading Cases:
  1. Nitroglycerin case: In this case Nitroglycerin packed in a box was sent through a common carrier. As there was some leakage, the servants of the carrier opened the box in the premises of P with a view to preventing the leakage. There was an explosion resulting in damage to the premises of P. P sued for damages.

    It was held that the defendant had taken all precautions and that he was not negligent. The defendant did not know the contents of the box and had no knowledge also. The accident was beyond the standard of a reasonable man. Hence the defendant was held not liable.

  2. Fighting Dogs case: In this case the dogs of P and D were, fighting. D was beating with a stick to separate them. P was the onlooker. Accidentally D hit P in the eye resulting in a serious injury. It was held: D was not liable as there was no negligence. The hit was inevitable and could not be prevented (Brown v. Kendal)

  3. Dog and Motor-car Case: A dog, quiet and docile, had been put by D in his motor car which had been parked on the road side. P was walking along- side the road. The dog jumped, barked and smashed the window glass pane. A splinter entered the eye of P causing injury. Held this was inevitable accident and D was not liable. (Fordon v. Harcourt)

Act of God: (Vis major)

This is a circumstance where the injury is directly due to certain natural causes. There would be no human intervention, and no human foresight could visualise the act thereof. In such a case the primary reason is traced to nature or to God. No liability arises.

Nichols v. Marsland: The natural stream of a river had been dammed up. An extraordinary rainfall came and broke the embankments and water escaped and destroyed 4 country bridges for which the court held that D was not liable. Such a rainfall was an extraordinary act of nature which nobody could reasonably expect to happen.

Act of God is a question of fact and must be established. In Greenock Corporation v. Caledonian Railways, the corporation built a padding pool for children, by deviating the natural flow of the stream of water. Owing to extraordinary rainfall, the stream overflowed. Water entered the property of P and damaged it. It was held that though rainfall was an act of God, the deviation of the stream was a human intervention and hence the corporation was liable. The contention of act of God as a defence was rejected.

Lightning, earth quake, cloudburst, tempest, hurricane, snowfall, frost etc., are acts of God. In Noble v. Harrison a branch of a tree fell on a car and the car was smashed. It was an act of God and hence the owner of the tree was not liable. In another case, a Tiger had been tied, in the premises of a circus, with iron chains. A lightning struck the chain. As a result the chain was cut off and the tiger escaped. It went to the nearby village and killed a person. This was an act of God and the circus owner was held not liable.

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