General defences in tort
Moving ahead fromÂ What is torts,its essentialsÂ in the last article,lets now get to know,general defences in tort,available when a person commits tort.
1. Vis Major or Act of God.
Anything that is beyond human control and forseeability,constitutes Act of God.
For example: Earthquake,flood etc.
2. Plaintiff the Wrongdoer.
An example here will make things clear.
Ketan and Shailesh are next door neighbours. However they cannot stand each other and have frequent quarrels which often turn nasty. In the dead of night Ketan steals into Shaileshâs property claiming he wanted to take a walk in the latterâs gardens. Shailesh had a pet dog called YenYalYas who jumped at Ketan. Ketan files a suit claiming damges from Shailesh. Shailesh can take the plea of âplaintiff the wrongdoerâ as Ketan himself had first trespassed onto his property and thus could not claim a suit having committed a wrong himself in the first place.
Should the plea of âplaintiff the wrongdoerâ succeed, the plaintiffâs case falls.
3. Volenti non fit injuria.
This principle states that if one voluntarily takes the risk of something then he may not claim a suit of action of such risk leads to injury.
However this risk must have been taken under free consent and not under coercion and with the full knowledge of the risk.
For example: Arun gets hit by a ball during a match,while watching a match from stands. He cannot claim compensation,given,when he bought the ticket,he agreed to risks.
4. Private Defence
Nothing is wrong if done with regard to protecting oneâs own self, another self, oneâs property or anotherâs property against a threat to such.
However there are limitations to such rule with regard to the force being used which must be proportional to the risk presented.
Points to remember about private defence:
- Risk must be immediate and sudden.
- Force used must be proportionate to the risk at hand.
5. Inevitable Accident.
This is a defence that can be claimed under a situation where inspite of taking reasonable care and protection the harm could not be averted.
For example: Sakshi and Shalini went to a park to shoot pheasants. Sakshiâs bullet skidded off the bark of a tree and hit Shalini while she was talking on the phone. Shalini was injured and sued her friend for compensation. The defence of inevitable accident could herein be rightfully claimed by Sakshi.
This refers to a particular case wherein a person was under mistaken knowledge usually and even after taking reasonable precautions could not have been reasonably expected to not commit the so called âmistakeâ.
For example: Rupali runs an auction shop on the beaches of Goa. Shraddha is a Nepalese entrepreneur who asks her friend Rupali to auction off some ill gotten goods that the former has smuggled in from Nepal. Rupali ran all the usual checks on the goods and was reasonably confident that the goods were genuine. She auctioned off the goods and then the anomaly was detected and the new owners sued Rupali. Herein Rupali can claim the defence of âmistakeâ.
Under dire conditions if one does something which results in a tort then once can usually claim the defence of necessity. Such condition should however be able to come under the bracket of âgeneral goodâ or âgreater goodâ and to prevent a bigger harm.
Sakshi and Utkarsh are nighbours. Sakshi’s house was on fire so she trespassed onto Utkarshâs property to draw water from the latterâs well to douse the fire (prevent a greater harm). Thus she is covered under the defence of necessity.