General defences are the defences that act as a safeguard or provide an opportunity for the defendant to prove himself innocent for a particular tort that has been committed. When the plaintiff brings an action against the defendant for tort providing the presence of all the essentials of that tort, the defendant is liable for the same, but the defendant can yet escape his liability by availing a plea of different general defences. For example, the general defence of ‘consent’ may be taken in case of trespass, defamation etc. This article will further mention the different general defences and when and how they can be availed.
Volenti non fit injuria
Volenti non fit injuria is one of a general defence which a defendant can avail at the time of an action being brought by the plaintiff. In this defence the person himself consents to the infliction of the harm done upon him, and he has no remedy or cannot sue the defendant for the same in tort.
In the case Hall v. Brooklands Auto Racing Club, the plaintiff was the spectator at the car racing show, which was being held at Brooklands on the trace owned by the defendant. During the race, two of the cars collided and the plaintiff suffered a severe injury due to the accident. It was held that the plaintiff implicitly took the risk of such injury as the danger being inherent in the sport which any spectator could foresee, the defendant was thus not held liable.
The defence of Volenti non fit injuria was also taken in another famous case of Padmavati v. Dugganaikathe. In this case, the driver took his jeep for filling petrol in its tank and meanwhile two strangers asked for a lift. Suddenly one of the bolts fixing the right front wheel to the axle gave way toppling the jeep due to which both of the strangers got hurt and one of them died. It was held that neither the driver nor the master could be made liable as the stranger voluntarily got into the jeep.
Another defence which a defendant can avail is of InevitableAccident. Herein, if any unexpected injury arises, which cannot be foreseen and cannot be avoided despite reasonable care taken on the part of the defendant then the defendant is absolved from any liability arising out of the accident by taking the defence of inevitable accident
In the case of Assam State Coop., etc. Federation Ltd .v. Smt. AnubhaSinha,, the premises belonging to the plaintiff were let out to the defendant. The defendant, i.e., the tenant requested the landlord to repair the electric wiring, which was defective, but the landlord failed to repair the same. There occurred an accidental fire in those premises and there was no negligence on the part of the tenant. It was held that since it was a case of an inevitable accident, the tenant could not be made liable for the same.
Act of God
The third type of defence for the defendant can be of Act Of God, which is somewhat similar to an inevitable accident. There is only a slight difference between the two, the defence of Act of God can only be availed when any loss arises due to the working of natural forces such as extraordinary rainfall or any other natural disaster or calamity. For taking this as a plea two essentials need to be fulfilled: 1.There should be natural forces 2. The occurrence should be extraordinary
Nichols V. Marsland is one of the landmark cases in which this defence was used. In this case, the defendant created some artificial lakes in his premises by diverting some natural streams and suddenly one day an extraordinarily heavy rainfall occurred and the water in the premise overflowed and damaged the bridge of the petitioner. It was held that the defendant was not liable because there the injury happened due to the working of natural forces, that is, extraordinarily heavy rainfall and therefore the defendant can take the plea of Act Of God.
In Kallulal v. Hemchand, the defendant’s building collapsed due to rainfall of 2.66 inches which killed 2 children of the plaintiff. It was held that the defendant is liable, as he did not take reasonable care of the building and the natural forces were not extraordinary.
The fourth type of defence which a defendant can avail is of Private Defence. This is one of the most used defences by people all over the world. In this defence the law allows one person to use any reasonable force to protect oneself or a person or a property. If the force is reasonable the defendant will not be liable but an unreasonable can’t be justified. For example ‘A’ slaps ‘B’, ‘B’ cannot take the defence of private defence if he cuts A’s hand by a sword because the force used is unreasonable and thus unjustified.
In RamanujaMudali v. M. Gangan, the defendant was a land owner who laid some electric wire in his field, the plaintiff tried to cross the land of the defendant in order to reach his land and the defendant has given no warning regarding the electric wires. He was therefore held liable for the injuries caused.
The fifth type of defence available to the defendant is Statutory Authority. When the damage is caused by the act which the legislature or the authority authorizes or directs to do then no action can be brought against the authority.
In Hammer Smith Rail Co. V. Brand, the property value of the plaintiff depreciated due to the noise smoke of railways build near his land. It was held the railway is authorized by statute and thus no action lies.
In conclusion, we can say that these are few of the defences which a defendant can avail to prove himself to be innocent or escape his liability in case of any tort committed. General defences have the importance of their own as they helps a person to escape from his liability.
The word ‘intension’ to commit a criminal act is replaced by ‘recklessness’ in tort law. Some torts for example trespass are actionable per se i.e. there is no need to prove any harm. Intention and recklessness depend on the conduct of the person and the mental state of mind while performing his actions. Crimes are defined as a combination of actus reus and mens rea (action and mental state) and the ultimate result is not important to determine the crime as the attempt to perform such an action is also a crime. Crimes are committed against the state and this is why the role of the victim is very less, as the state prosecutes on their behalf, whereas tort law is concerned with the situation and thus varies from case to case. Victim himself initiates the litigation under tort law. There is no offence of attempt in tort and it is concerned with the victim only to the extent of conduct of the tortfeasors. Tortfeasors sometimes take undue advantage of these defences. This can be seen in the case of Nichols v. Marsland mentioned above, the person made artificial lakes for his advantage and for that he diverted natural streams. Natural resources are not for private use, they belong to the public. He took the advantage of the defence of the Act of God, to save himself from the liability. This is an example of the misuse of the law. But as we know, the Law of Torts is uncodified and is based on the precedents laid down by the courts; it becomes very difficult to reach an amicable conclusion. In my opinion, these defences are very important, though they are sometimes misused. We perform many activities in our day-to-day lives and if these defences are removed and absolute liability is applied it will make the mere act of moving on the road difficult because of the fear of committing a tort. For example, anyone can get hurt in a cricket stadium with the ball hit by the batsman, but this doesn’t mean that one can file a suit against him. This is where the general defences play an important role. So I would conclude this article with the words of John Locke:
“The only defence against the world is a thorough knowledge of it.”
He is a third year student of Rajiv Gandhi National University of Law, Punjab. Along with studies, he likes to explore emerging and developing fields of law. He is also a member of Centre for Alternate Dispute Resolution of his college.
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(1869) LR 4 HL 171