The law of tort is a branch of civil law that deals with civil wrongs, where one person’s injury to another leads to legal liability. Unlike felonious law, where the state prosecutes the lawbreaker, tort law allows the injured party to seek compensation or remedy for the wrong through a civil action. The original meaning of the English term tort means ‘wrong’.
The primary purpose of tort law is to give remedies for victims who have been wronged. These remedies are generally in the form of financial damages or orders for the defendant to stop certain dangerous conduct. It evolved over centuries and has been shaped by societal changes, legal gospel and judicial opinions.
Essentials of a Tort
- In tort law, an act refers to a purposeful action that causes injury to another person or their property, similar to cases of battery, vilification or trespass. On the other hand, an omission occurs when someone fails to take action when they have a legal obligation to do so, which results in detriment.
- Another essential element of a tort is legal damages, the detriment or injury suffered by the complainant as a direct result of the defendant’s unlawful act. For a tort claim to succeed, the complainant must prove that they’ve honoured damage, whether it’s physical injury, property damage, fiscal loss or detriment to the character. The two legal bywords related to legal damage are-
- Injuria sine damno:– Injuria sine damno refers to the violation of a legal right without causing any harm, loss, or damage to the affected party.
- Damnum sine Injuria:– It refers to harm that occurs without any unlawful interference with the complainant’s legal rights.
Introduction to General Defences in Tort
General Defences can be defined as a set of excuses or legal principles that are used by the defendant when sued by the plaintiff for a particular tort. The defences are used by the defendant to escape the accountability for a specific tort. There must be proper justification while using a particular general defence. For example:- to use the general defence of “volenti-non-fit-injuria” which means “willingness doesn’t make injury” the essential of free consent must be present. Likewise, there are eight general defences under tort each having its own essentials and exceptions. The defences are listed and explained below:-
- Volenti-non-fit-injuria
- Statutory Authority
- Private Defence
- Inevitable Accident
- Act of God
- Plaintiff, the Wrongdoer
- Necessity
- Status of minor
Volenti-non-fit-injuria
Voleti-non-fit-injuria is a Latin term which means “to someone who is willing for an act, injury is not done.”, in simpler terms can be defined as when a person voluntarily agrees to an act and while performing the act he/she gets injured then he/she cannot move before the court to seek legal remedy or compensation. The plaintiff is not entitled to compensation because he/she willingly performed the act. For example:- if I invite a person to my house for dinner and the person shows up, I cannot sue the person for trespassing to my property because I voluntarily invited him for dinner. But if that person came to my house and I hadn’t invited him then I can sue him for trespass because I didn’t give consent to inviting him to my house.
For the defence of “volenti-non-fit-injuria” to be available the consent obtained from the plaintiff must be free. There must not be any use of fraud, misrepresentation, coercion, threat, etc. In Padmavati v. Dugganaika, two strangers asked for a lift from a driver. During the ride, one of the bolts of the front wheel came out and the car met with an accident in which one of the strangers died and another got injured. The driver wasn’t held liable for the accident and the surviving stranger wasn’t compensated as he voluntarily gave consent for the ride.
Essentials
- Free consent:- The consent of the plaintiff must be free i.e. it must not be obtained by fraud, threat, misrepresentation, coercion etc. and if obtained the defence won’t be applicable. In R. v. Williams,[1] the defendant who was a music teacher was held guilty of rape when he had sexual intercourse with one of his students who was 16 years old. He misled her by saying that this would improve her singing skills by opening her air passages. The consent was obtained by fraud and the teacher was held guilty before the court.
- The method of performing the act must be lawful:- Only acts that are legal and not debarred by the law is counted.
Exception
Only the work for which consent is taken must be performed. “Volenti-non-fit-injuria” won’t apply if another act is performed after consent is taken. In Lakshmi Rajan v. Malar Hospital Ltd.[2] the plaintiff consented to surgery on her breast which had a lump. But instead of operating the lump in her breast, the doctor removed her uterus. The hospital authorities were held liable as they performed other work for which consent was not given.
Statutory Authority
Statutory authority means a statute which is set up by law. It is authorized to implement certain rules and regulations which becomes an act after it is authorized in the legislative body of the particular country. In Indi,a legislative proposition is brought as a bill in the Houses of Parliament(Lok Sabha and Rajya Sabha). The Bill gets passed in the Houses of Parliament only when 2/3 majority of both the Houses agree on it. Then it is sent to The President and it becomes a law after The President approves it.
Now if that law injures someone then he/she can’t seek compensation before the court as the particular act has been passed by the legislative body. In certain exceptional cases, compensation may be provided if it has been provided by the statute.
Exception
Duty of care[3] must be there while performing the act authorized by the legislative body. The act must be performed responsibly without any negligence. In Smith v. London and South Western Railway Co.,[4] the staff of the railway company negligently left grass cuttings near the railway tracks. Sparks from the engine caused fire and the fire was carried 200 yards away to Smith’s house by wind. As a result, the house of Smith was burned and the railway company had to compensate him because there was negligence from their side.
Private Defence
The law permits the use of reasonable force to protect one’s own property or person from any kind of threat or danger. In simpler words, the use of a reasonable amount of force by an individual to protect his/her property or person from any kind of imminent danger is known as private defence. If the defendant uses the necessary amount of force for self-defence then he/she can’t be held liable before the court. For example:- If A’s house is invaded by burglars and there is a threat to A’s property, A can injure the burglars and he won’t be held liable before the court.
In the case of immovable property such as land or buildings, constructing a wall with spikes or glass pieces which can injure invaders is permitted but not excessive means of force like spring guns which pose a threat to life. In Bird v. Holbrook, the defendant kept spring guns in his garden without any notice which injured a trespasser. The plaintiff was entitled to get compensation because here excessive means of force were used which was greater than the situation demanded.
Essentials
- Reasonable amount of force:- The amount of force used for self-defence must not be greater than the demanding situation. For example:- If a person punches me and I get injured, I can’t use a gun and shoot him at point blank. If this happens I will be held liable because I used an excess amount of force.
- There must be imminent danger:- To use private defence as a general defence, there must be an incoming threat that may put lives at risk. For example:- A can’t injure B just because he thinks that B might kill him someday. In this case, there is no imminent threat.
Act of God
An Act of God refers to a rare, unpredictable, and extraordinary event caused by natural forces, which is beyond human control. These events include occurrences such as floods, earthquakes, hurricanes, volcanic eruptions, and other extreme weather phenomena. Also known as Vis Major, an Act of God is characterized by its natural origin, occurring independently of human actions. Such events are unforeseeable and unavoidable, no matter how much care, planning, or precautionary measures one might take. The law recognizes that when these events occur, individuals or organizations may be absolved from liability, as they could not have prevented the event or its consequences through reasonable foresight or efforts. Essentially, an act of God is a defence used to explain the inability to fulfil legal obligations due to an external, uncontrollable natural cause.
Essentials
The damages caused must be due to extraordinary forces of nature like floods, landslides, tempests, etc. that are beyond human control. In Nichols v. Marsland, the defendant created some artificial lakes by damming some natural streams. Due to extraordinarily heavy rainfall, those lakes overflowed and washed away four bridges belonging to the plaintiff. The defendant wasn’t held liable as the damage was caused by natural forces.
Inevitable Accident
Inevitable accident refers to an unexpected and unforeseen event that occurs all of a sudden but it causes injury to a person. In Stanley v. Powell, both the defendant and plaintiff were members of a shooting party. During one shooting session, the plaintiff was hurt by the bullet from the defendant’s gun that ricocheted off a tree. The defendant wasn’t held liable because he took necessary care while operating the gun and there was no negligence from his side. This event was totally unpredictable and the defence of an inevitable accident was used by the defendant.
There is also a slight difference betweenan Act of God(vis major) and an inevitable accident. Act of God is also a type of inevitable accident but in this, damages must be caused by extraordinary forces of nature like landslides, tempest, floods and so on.
Accidental damage to property is non-actionable as it is included under inevitable accident. In the Nitro-Glycerine case,[5] the two defendants were delivery personnel carrying a box which had a leakage. To examine the leakage they took the box to their office and the moment they opened the box, it exploded damaging the building belonging to the plaintiff. It was held that the defendants had no prior knowledge about the box containing explosive chemicals and so the plaintiff wasn’t compensated.
Plaintiff the Wrongdoer
The general defence of Plaintiff the Wrongdoer states that a plaintiff cannot bring a successful lawsuit against the defendant if the plaintiff themselves played a role in causing the harm or injury. This defence highlights the idea that if the plaintiff’s actions contributed to the injury or harm, they should not be entitled to full compensation for the damages incurred. In other words, the defendant may argue that the plaintiff’s own negligence or misconduct partially or entirely caused the incident, and thus, the defendant should not bear the entire responsibility for the harm. In tort law, when a plaintiff’s claim is based on actions that are illegal, immoral, or contrary to public policy, the defendant may use this defence to argue that the plaintiff is not permitted to seek compensation. If the plaintiff’s conduct was in violation of the law or against the public interest, the court may decide that the plaintiff should not be allowed to seek compensation for their losses, as their own wrongdoing contributed to the harm.
Essentials
For a plaintiff to be barred from bringing legal action, they must have committed a wrongful act, whether it is illegal under the law or deemed immoral by public policy standards. Essentially, a person cannot seek legal redress for harm or injury if their own actions or misconduct contributed to or caused the situation in question. In Prabhu Dayal v. Town Area Committee, the building of the plaintiff was demolished by the defendant because he didn’t follow the norms under section 178 of the U.P. Municipalities Act for constructing a building. The defendants weren’t held liable as here the plaintiff himself was at fault.
Exception
The defence is not considered valid when the wrongful act committed by the plaintiff is unrelated to the harm they have suffered. In other words, if the plaintiff’s own actions are not connected to the damage they experienced, the defence cannot be used to justify or excuse the defendant’s conduct. Additionally, this defence is not applicable when the harm or injury results from the defendant’s wrongful actions, even if the plaintiff shares some degree of fault in the situation. In such cases, the fact that the plaintiff may have contributed to the harm in some way does not absolve the defendant from liability for their own wrongful behaviour.
Necessity
Necessity defence is a legal justification that allows a defendant to break the law if doing so was necessary to prevent greater harm to others, rather than for their own benefit. This defence is based on the principle that, in specific, urgent circumstances, violating the law may be the only reasonable option to avert a more significant danger or damage. While this defence is generally applicable in situations where the danger is immediate and unavoidable, it is not without its limitations. In particular, it is not available as a defence in cases involving particularly serious crimes, such as murder, where the law does not permit justifying unlawful acts that cause extreme harm. Despite its limitations, the necessity defence acknowledges that in certain critical moments, individuals may be forced to make difficult decisions that prioritize preventing greater harm over strict adherence to the law.
Essentials
The illegal action taken by the defendant must directly contribute to preventing the greater harm. The defendant’s conduct must be necessary to avert the threat. The defendant’s unlawful act must be proportional to the harm they are trying to avoid. In the case of Leigh v. Gladstone(1909),[6] a significant legal decision was made regarding the use of the necessity defence. Leigh, a prisoner, went on a hunger strike and was forcibly fed by the prison authorities. She subsequently sued the prison staff for assault and battery. The court ruled that the actions of the prison staff were justified under the principle of necessity. It held that, while personal autonomy is a fundamental right, it may be overridden in exceptional cases where failing to intervene could lead to death or serious harm. Therefore, the forcible feeding of Leigh during her hunger strike was deemed a valid response to prevent greater harm, and the necessity defence was upheld in this context.
Status of minor
A minor is typically defined as someone under the age of 18, and their legal status, particularly in terms of criminal responsibility, depends on both their age and the nature of the crime. Children under the age of 7 are presumed incapable of committing a crime due to their lack of understanding. For children aged 7 to 12, criminal responsibility is not assumed unless the state can prove they understand the nature of their actions. Minors between the ages of 14 and 21 are generally treated as adults in terms of criminal responsibility, as they are presumed to have the mental capacity to understand the consequences of their actions. At 18, individuals are legally considered adults, gaining rights such as voting, owning property, and entering contracts. However, maturity is not always tied to age, and in some cases, minors may possess the same level of maturity and understanding as adults, influencing how they are treated in legal matters.
Essentials
Minors generally lack the legal capacity to enter into contracts, as such agreements are considered void from the outset. They typically act through legal representatives in matters involving contracts. While minors can own property, they cannot independently manage or transfer it. In the case of Mohori Bibi v. Dharmodas Ghose(1903),[7] a landmark judgement, Dharmodas Ghose, a minor, mortgaged his property to Brahmo Dutt(represented by Mohori Bibi) to secure a loan. Although Brahmo Dutt’s representative knew Dharmodas was a minor at the time, Dharmodas later sought to void the mortgage on the grounds of his minority. According to Section 11 of the Indian Contract Act, 1872, contracts with minors are void ab initio, meaning Dharmodas, being a minor, was not legally capable of contracting. Therefore, the mortgage agreement was void, and the court ruled that no compensation was due, as the contract was void rather than merely voidable.
Conclusion
In conclusion, tort can be defined as a branch of civil law, primarily focused in providing legal remedies and compensation to individuals who suffer for the unlawful actions of others. It consists of several essentials like free consent, legal remedy, act, omission, etc. governed by eight general defences. These defences act as an escape for the defendant to avoid accountability for a specific tort. While Act of God and Inevitable Accidents totally depends on unforeseen circumstances, the rest depends on the actions of an individual. Overall tort law depends on the relationship between societal norms, individual actions and legal principles ensuring justice and adapting to the changing circumstances of the society.
Authors: Jyotirmoy Biswas and Sairindhri Dey, 1st Year BBA-LLB Student at Techno India University, West Bengal
[1]Reference from https://ipsaloquitur.com/criminal-law/cases/r-v-williams-owen-richard/ visited on 20th November, 2024
[2]Reference from https://lawbhoomi.com/lakshmi-rajan-v-malar-hospital/ visited on 20th November, 2024
[3]Reference from https://dictionary.cambridge.org/dictionary/english/duty-of-care/ visited on 20th November, 2024
[4]At pg. 46 of Law of Torts by Dr. R.K. Bangia visited on 21st November, 2024
[5]At pg. 43 of Law of Torts by Dr. R.K. Bangia visited on 21st November, 2024
[6]Case analysis from https://lawbhoomi.com/leigh-v-gladstone/ visited on 23rd November, 2024
[7]Case analysis from https://www.legalserviceindia.com/legal/article-232-case-analysis-mohori-bibee-v-s-dharmodas-ghose.html visited on 23rd November, 2024
