(..3..)

DEFENCES OF AN ACTION IN TORT[1]

Table of Contents

(GENERAL EXCEPTIONS)[2]

QUESTION BANK

Q.1. Discuss the maxim “volenti nonfit injuria.”

Q.2. Every injury imparts damage, but every damage is not injury. Discuss.

Q.3. Explain the defense- ‘Volenti nonfit injuria’ fully

Q.4. Discuss the defense- ‘necessity’ and ‘inevitable accident’ with the help of

case law.

SHORT NOTES

Vis major
Act of God
Volenti non-fit injuria.
Inevitable Accident.

SYNOPSIS

I] Introduction

II] General Exceptions.

Act of the state.
Executive acts.
Judicial or Quasi-judicial acts.
Leave and Licence (volenti nonfit injuria)
Act of God and inevitable accident.
Private Defence.
Acts causing slight harm.
Statutory authority.

I] Introduction: –

Under certain conditions, an act ceases to be wrongful, although the same act would amount to a wrong in the absence of those conditions. Under such conditions, the act is said to be justified or excused. Those conditions which excuse the act are divided into two categories. Firstly, those conditions which excuse or justify some specific tort but do not excuse or justify tort generally, e.g., truth and fair comments, are defences available for the tort of defamation only. Secondly, those conditions which apply to all types of torts, e.g., defence of consent, necessity, private defence, etc., can excuse any tort. Thus, the second category reflects Sir Fredrick Pollock’s idea. He calls it the “rule of immunity, which limits the rules of liability in general and therefore is called general exceptions”.

(The special exceptions mentioned in the first category dealt with particular topics.) (This topic is similar to that of general defences in I.P.C).

II] General Exceptions:-

These general exceptions or justifications or rules of immunity are-

1] Act of State[3].

English Law: –

An act of state is an act injurious to the person or property of some person who is not, at the time of the act, a subject of Her Majesty (i.e. British subject) and which is done by any representative of Her Majesty’s authority (Kings Authority), civil or military and is either previously sanctioned or subsequently ratified by Her Majesty.”

Thus, an act of state is an injury –

Done against an alien (who is not subject to Her Majesty).
By a servant of the crown (state).

which act is either previously authorised or subsequently ratified by the crown on state policy and

This would otherwise constitute a wrong, but being done under state policy is not recognisable by any municipal court.

Indian Law:-

The same principle is applicable to India.

In Etti V/s. Secretary of State for India[4]

Facts: The plaintiff’s child was wrongly delivered to somebody else by a government hospital that couldn’t be found afterwards.

Held: The government is not liable because it is running a hospital under sovereign power.

Dharua Marali V/s K. B. Patil[5]

Facts: The revenue Inspector opened the outlet of the reservoir to provide water to the cultivator’s lands (the cultivator had the right to receive water from the reservoir). In the process of supplying the plaintiff’s water crops, the cultivators were damaged.

Held: – Action of opening an outlet in a reservoir is taken in due discharge in their official duty in good faith, without oblique motive. So, the action was protected even as the head of the Act of State and under the executive act. Damages not awarded.

2] Executive acts[6]:-

Under this exception, a public officer exercising his power within the limits of law in good faith is exempt from tortuous liability. However, misfeasance (doing a lawful act unlawfully) must not be present.

In India, the Judicial Officers’ Protection Act protects court officers, and various police Acts protect police officers.

3] Judicial or quasi-judicial acts[7]:-

Persons enjoying quasi-judicial powers are protected from civil liability if they observe the rules of law and natural justice.

To get protected, the authority must exercise powers –

In good faith.
After issuing fair and sufficient notice.
Giving the opponent an opportunity for defence.

These exceptions protect various persons and bodies, such as universities, colleges, committees of societies and clubs, etc.

In Dawkins V/s Antrobus.

Facts: The plaintiff was dismissed from his club membership for misconduct by serving due notice, but he remained absent at the hearing.

Held: – Dismissal is valid because the order was made bonafide.

4] Leave and License OR (Volenti-non fit injuria) OR (Consent)[8]–

This maxim ‘volenti non-fit injuria’ means the harm suffered voluntarily does not constitute a legal injury and is not actionable. In other words, one who has invited or assented to an act being done towards him cannot complain of it being wrong when he suffers from it.

It protects the surgeon who amputates a limb, the football player, boxer, sword fencer, and cricketer, so long as they play fairly according to the game’s rules.

In Cutler V/s. United Dairies[9]

Facts: The plaintiff saw a horse belonging to a driver getting out of control. He voluntarily went to his assistance, but the horse threw him back and injured him.

Held: – The maxim applies, i.e. volenti nonfit injuria. He still knew the nature of the dangerous act; he willingly undertook the same.

There are certain limitations/ exceptions to the application of this maxim:-

No consent: – no leave or license can legalize an unlawful act, e.g. fighting with bare fists or a duel with sharp swords.
The maxim cannot apply against an action based on a breach of statutory duty. Thus, the maxim is no answer to a claim made by a workman against the employer for injury caused by the employer’s breach of a duty imposed upon him by a statute.

Rescue cases: –

The maxim does not apply where the plaintiff has, under an emergency caused by the defendant’s wrongful misconduct, consciously and deliberately faced a risk, even of death, to rescue another from imminent danger of personal injury or death whether the person endangered is one to whom he owes a duty of protection (i.e. a member of his family) or is a mere stranger to whom he owes no such special duty.

Therefore, protecting or rescuing the life of any relative or even of a stranger if the plaintiff endangered his life and, consequently, injured, can not be deprived of action against the defendant if the defendant creates such a dangerous situation.

iv) Generally, the maxim does not apply to cases of negligence.

In Haynes V/s. Harood[10]

Facts:- The defendant’s horse carriage, negligently left unattended in a crowded street, ran away when a boy threw a stone at them. The plaintiff, a constable on duty inside a police station, saw that persons were in grave danger, ran out, stopped the horses, and was severely injured in doing so.

Held:- In such circumstances, he was entitled to recover damages because the defendant was negligent in keeping the carriage unattended in the public street.

5] Act of God / Inevitable accident/ Vis. Major[11]:-

An inevitable accident is one that the exercise of ordinary care, caution, and skill could not possibly prevent. It means an accident, which is physically unavoidable.

All the cases of inevitable accidents may be divided into two classes.

Those which occur by the factors beyond the control of man, i.e., those caused by forces of nature (i.e., Acts of God (Vis Major), or
Those which occur by the factors wholly or partly within human control. (inevitable accident)

If an accident arises in doing a lawful act, no action can be sustained for any injury arising therefrom.

In Holmes V/s. Mather (Runaway horses case)[12]

Facts: – The horses of a cart ran away on a public highway to the barking of dogs. They became so unmanageable that the cart driver could not stop them but tried to guide them as best as he could. However, eventually, it hurt the plaintiff.

Held: The plaintiff could not maintain an action because the driver had done his best to manage the cart.

Brown V/s. Kendall ( fighting dogs case )[13]

Facts: In this American case, the plaintiff and the defendant’s dogs were fighting. The defendant was beating them to separate them. While doing so, the defendant accidentally hit the plaintiff’s eye, injuring it. Therefore, the plaintiff filed a suit.

Held: – the action of the defendant was lawful and proper. The defendant did the act by proper and safe means. So, it was the result of a pure accident. Therefore, the defendant was not liable

6] Necessity[14]: –

This exception is based on the maxim ‘salus populi suprema lex’, which means the welfare of the people is the supreme law. ‘Necessity knows no law’ is a common saying. It means if the circumstances are crying for immediate action, then the law doesn’t need to be strictly followed, so necessity justifies an act that would otherwise be wrongful. An act causing damage, evil is not actionable even though harm was caused intentionally. But suppose the necessity has been brought about by the negligent conduct of the defendant himself. In that case, it does not afford a defence, e.g. if pulling down a house on fire to prevent the spread of fire or throwing goods overboard to lighten a boat in a storm are necessities [I. P. C. sec. 81 also provides for necessities.)

In Gregson V/s. Gilbert & Dultti vs Sterams[15]

Facts: – In this case, 150 Negro slaves were ordered by the captain of a ship to be thrown overboard owing to the shortage of water and food.

Court Held: – No necessity justifies the killing of a human being.

7] Private Defence[16]: –

No action is maintainable for damage done in the exercise of one’s right of private defence of person or property, provided that the force employed for the purpose should not be out of proportion to the harm apprehended.

In India, the right of private defence has been given statutory recognition in Ss. 96 to 106 of the I. P. C. These criminal law principles may easily be imported into the law of Torts.

In Morris V/s. Nugent[17]

Facts: The defendant shot dead a dog of the plaintiff while it was running away after an attempt to bite him.

Held: The defendant was not justified in killing the dog, which was running away.

8] Acts causing slight harm[18]: –

Nothing is wrong, and a person of ordinary sense and temper would not complain. Courts of justice generally do not take trifling and immaterial matters into account. This principle is recognised in the Indian Penal Code (S. 95). The maxim does not apply where there is an injury to a legal right.

Illustration

A bystander touched a fireman on the arm to attract his attention to another part of a building where a fire was raging. The bystander is not liable for battery.

9] Statutory Authority[19]: –

Statutory authority means an authority or power given by law to do certain acts. If a tort is committed in the course of any such action, the injured person will have no claim unless the act was negligent. Statutory authority may be absolute or unconditional.

Absolute statutory authority confers immunity, not in respect of the act itself but all the necessary consequences of the act. For example, it is necessary to acquire land to lay down the railway track, and it is equally essential that the noise and vibration are caused by running the train on it. In such cases, there is no remedy unless the statute itself provides one. No action can lie either for interference with the land or incidental harm, except for payment of compensation that the act may have provided.

*****

[1] अपकृत्यासाठीचे बचाव [अपकृत्य कार्रवाई से बचाव]

[2] सर्वसाधारण अपवाद [सामान्य अपवाद]

[3] राष्ट्राची कृत्ये [राष्ट्र का कृत्य]

[4] 1939

[5] AIR 2002,orissa 121

[6] प्रषासकीय कृत्ये

[7] न्यायिक, समन्यायिक कृत्ये

[8] संमती [अनुमति]

[9] 1933

[10] 1935

[11] दैवी कृत्य [दैवीय कार्य]

[12] 1875

[13] 1850

[14] गरज [जरूरत]

[15] 1783

[16] स्वसंस्रक्षण

[17] 1836

[18] कृत्य की ज्यामुळे एकदम षुल्लक नुकसान होते.

[19] कायदयाने दिलेल्या अधिकारात केलेले कृत्य