Law of Torts Unit II

Volenti Non Fit Iniuria

Volenti non fit iniuria (or injuria) (Latin: “to a willing person, injury is not done”) is a common law doctrine which states that if someone willingly places themselves in a position where harm might result, knowing that some degree of harm might result, they are not able to bring a claim against the other party in tort or delict. Volenti only applies to the risk which a reasonable person would consider them as having assumed by their actions; thus a boxer consents to being hit, and to the injuries that might be expected from being hit, but does not consent to (for example) his opponent striking him with an iron bar, or punching him outside the usual terms of boxing. Volenti is also known as a “voluntary assumption of risk.”

Volenti is sometimes described as the plaintiff “consenting to run a risk.” In this context, volenti can be distinguished from legal consent in that the latter can prevent some torts arising in the first place. For example, consent to a medical procedure prevents the procedure from being a trespass to the person, or consenting to a person visiting your land prevents them from being a trespasser.

Trespassers

The Occupiers’ Liability Act 1984 requires all owners of property to take reasonable steps to make their premises safe for anyone who enters them, even those who enter as trespassers, if they are aware of a risk on the premises. However, the doctrine of volenti has been applied to cases where a trespasser exposed themselves deliberately to risk:

  • Titchener v British Railways Board [1983] 1 WLR 1427
  • Ratcliff v McConnell [1997] EWCA Civ 2679
  • Tomlinson v Congleton Borough Council [2003] UKHL 47

In the first case (decided before the Occupier’s Liability Act was passed), a girl who had trespassed on the railway was hit by a train. The House of Lords ruled that the fencing around the railway was adequate, and the girl had voluntarily accepted the risk by breaking through it. In the second case, a student who had broken into a closed swimming-pool and injured himself by diving into the shallow end was similarly held responsible for his own injuries. The third case involved a man who dived into a shallow lake, despite the presence of “No Swimming” signs; the signs were held to be an adequate warning.

Drunk drivers

The defence of volenti is now excluded by statute where a passenger was injured as a result of agreeing to take a lift from a drunk car driver. However, in a well-known case of Morris v Murray [1990] 3 All ER 801 (Court of Appeal), volenti was held to apply to a drunk passenger, who accepted a lift from a drunk pilot. The pilot died in the resulting crash and the passenger who was injured, sued his estate. Although he drove the pilot to the airfield (which was closed at the time) and helped him start the engine and tune the radio, he argued that he did not freely and voluntarily consent to the risk involved in flying. The Court of Appeal held that there was consent: the passenger was not so drunk as to fail to realise the risks of taking a lift from a drunk pilot, and his actions leading up to the flight demonstrated that he voluntarily accepted those risks.

Rescuers

For reasons of policy, the courts are reluctant to criticise the behaviour of rescuers. A rescuer would not be considered volens if:

  1. He was acting to rescue persons or property endangered by the defendant’s negligence;
  2. He was acting under a compelling legal, social or moral duty; and
  3. His conduct in all circumstances was reasonable and a natural consequence of the defendant’s negligence.

An example of such a case is Haynes v. Harwood [1935] 1 KB 146, in which a policeman was able to recover damages after being injured restraining a bolting horse: he had a legal and moral duty to protect life and property and as such was not held to have been acting as a volunteer or giving willing consent to the action – it was his contractual obligation as an employee and police officer and moral necessity as a human being to do so, and not a wish to volunteer, which caused him to act. In this case the court of appeal affirmed a judgement in favor of a policeman who had been injured in stopping some runaway horses with a van in a crowded street. The policeman who was on duty, not in the street, but in a police station, darted out and was crushed by one of the horses which fell upon him while he was stopping it. It was also held that the rescuer’s act need not be instinctive in order to be reasonable, for one who deliberately encounters peril after reflection may often be acting more reasonably than one who acts upon impulse.

By contrast, in Cutler v. United Dairies [1933] 2 KB 297 a man who was injured trying to restrain a horse was held to be volens because in that case no human life was in immediate danger and he was not under any compelling duty to act.

Unsuccessful attempts to rely on volenti

Examples of cases where a reliance on volenti was unsuccessful include:

  • Nettleship v. Weston [1971] 3 All ER 581 (Court of Appeal)
  • Baker v T E Hopkins & Son Ltd [1959] 3 All ER 225 (Court of Appeal).

In the first case, the plaintiff was an instructor who was injured while teaching the defendant to drive. The defence of volenti failed: that is, because the plaintiff specifically inquired if the defendant’s insurance covered him before agreeing to teach. In the second case, a doctor went in to try to rescue workmen who were caught in a well after having succumbed to noxious fumes. He did so despite being warned of the danger and told to wait until the fire brigade arrived. The doctor and the workmen all died. The court held that it would be “unseemly” to hold the doctor to have consented to the risk simply because he acted promptly and bravely in an attempt to save lives.

Inevitable Accident

An inevitable accident or “unavoidable accident” is that which could not be possibly prevented by the exercise of ordinary care, caution and skill. It does not apply to anything which either party might have avoided. Inevitable accident was defined by Sir Frederick Pollock as an accident

“not avoidable by any such precautions as a reasonable man, doing such an act then there, could be expected to take.”

It does not mean a catastrophe which could not have been avoided by any precaution whatever, but such as could not have been avoided by a reasonable man at the moment at which it occurred, and it is common knowledge that a reasonable man is not credited by the law with perfection of judgment. As observed by Greene M.R., an accident is“one out of the ordinary course of things, something so unusual as not to be looked for by a person of ordinary prudence.” All causes of inevitable accident may be divided into 2 classes

  • Those which are occasioned by the elementary forces of nature unconnected with the agency of man or other cause
  • Those which have their origin either in the whole or in part in the agency of man, whether in acts of commission or omission, nonfeasance, or in any other causes independent of the agency of natural forces. The term “Act of God” is applicable to the former class.

An accident is said to be ‘inevitable’ not merely when caused by Vis major or the act of God but also when all precautions reasonably to be required have been taken, and the accident has occurred notwithstanding. That there is no liability in such a case seems only one aspect of the proposition that liability must be based on fault. Act of God or Vis Major or Force Majeure may be defined as circumstances which no human foresight can provide against any of which human prudence is not bound to recognize the possibility, and which when they do occur, therefore are calamities that do not involve the obligation of paying for the consequences that result from them. Vis Major includes those consequences which are occasioned by elementary force of nature unconnected with the agency of man. Common examples are falling of a tree, a flash of lightening, a tornado or a flood. The essential conditions of this defence are:

  • The event causing damage was the result of natural forces without any intervention from human agency.
  • The event was such that the possibility of such an event could not be recognized by using reasonable care and foresight[3].

The American Jurisprudence defines act of God as:

An event may be considered an act   of God when it is occasioned exclusively by the violence of nature. While courts have articulated varying definitions of an act of God, the crux of the definition typically is an act of nature that is the sole proximate cause of the event for which liability is sought to be disclaimed[4].

Act of God as a defence arises only where escape is caused through natural causes without human intervention, in circumstances which no human foresight can provide against and of which human prudence is not bound to recognize the possibility[5].

Origin and Historical Evolution of the Defences

In the pre nineteenth century cases, the defence of inevitable accident used to be essentially relevant in actions for trespass when the old rule was that even a faultless trespassery contact was actionable, unless the defendant could show that the accident was inevitable. It was for long thought that the burden of proof in trespass upon the person rested with the defendant and that trespass, therefore, offered scope to the defence of inevitable accident, but it has now been held that here too the burden is with the claimant In trespass as well as in negligence, therefore, inevitable accident has no place. In these cases inevitable accident is irrelevant because the burden is on the claimant to establish the defendant’s negligence, but it does not follow that that it is any more relevant if the claimant has no such burden. The emerging conception of inevitability can be seen most clearly in Whitelock v. Wherwell ,the bolting horse case from 1398. The complaint in Whitelock was unusual because the plaintiff, rather than just reciting that the defendant had hit him with force and arms, also alleged that the defendant had “controlled the horse so negligently and improvidently” that it knocked him down. The defendant conceded that the horse had knocked down the plaintiff, but pleaded that the plaintiff’s fall was “against the will” of the defendant. The defendant went on to explain that he had hired the horse without notice of its bad habits, that it ran away with him as soon as he mounted it, and that he “could in no way stop the horse” although he “used all his strength and power to control” it. It was a plea of inevitable accident in a case of latent defect (the horse is a “bolter”). The collision may have been inevitable, but it had become inevitable by virtue of the defendant’s negligence, and was thus not held to be an accident.

The first explicit statement that a defendant can escape liability in trespass if the accident was inevitable occurs in Weaver v. Ward decided in 1616. The category “inevitable accident” was understood, in its inception as distinguished from the defence of “accident,” or “mischance,” which was available in felony but not in trespass, and which was a true no-negligence defence. The defendant in Weaver inadvertently shot the plaintiff when his musket discharged while their company of soldiers was skirmishing with another band. The defendant pleaded that he “accidentally and by misfortune and against his will, in discharging his musket, injured and wounded the plaintiff; which wounding is the same trespass of which the plaintiff complains.” Substantively, this was a plea of accident. The plaintiff demurred, and the court held the defendant’s plea bad. In trespass, the plaintiff needed only to allege that the defendant had done harm with force and arms, rather than done harm negligently. In actions on the case, however, allegations of negligence seem always to have been necessary

In property damage cases involving heavy weather, where there was typically a presumption of fault against the moving vessel, and the vessel owner’s efforts to rebut liability take the inevitable accident form. The inevitable accident defence was typically invoked when a vessel, caught in the full force of a storm, has been driven against another vessel or vessels, or against a fixed structure. Property damage cases also involved destruction by fire.  In Tucker v. Smith (1359), the defendant said simply that his house “caught fire by mischance and was burned down so that the fire there from being blown by the wind to [plaintiff’s] house” burned it “by mischance.” It can be quite as impractical to stop an ordinary wind from spreading fire as a tempest. The plaintiff therefore elected to join issue on how the fire started rather than how it spread. His special traverse claimed that the defendants burned the house “of their own wrong and by their fault” and denied that it “was burned down by mischance.”

In Ellis v. Angwyn (1390), the defendant pleaded that unknown to him and “against his will, a fire suddenly arose by mischance” in his house, and was spread by “a great gust of wind” to the plaintiff’s houses. The plea says nothing about what the defendant did to prevent the fire from arising or spreading. The act of God was thus incorporated (though not by that name) in a plea of accident to show that the harm was inevitable.The last pre-nineteenth century case that directly deals with how inevitable accident should be pleaded is Gibbons v. Pepper[13]. The defendant pleaded that his horse became frightened and “ran away with him so that he could not stop the horse,” that the plaintiff ignored his warning “to take care,” and that the horse thus ran over the plaintiff “against the will of the defendant.” In substance, this was a plea of inevitable accident. Gibbons thus holds that inevitable accident should be raised by pleading the general issue when the substantive nature of the plea amounts to a complete denial of causal responsibility. The Gibbons court put the “runaway horse” on a par with the hypothetical case of A using B’s hand to strike C, and treated both as denials.

In Mitchell v. Allestry (1676), the plaintiff was run over by two untamed horses the defendants were breaking in a public square. The plaintiff initially brought an action claiming that the defendants “did negligently permit” the horses to run over her. But at the first trial “the evidence as to the negligence” went against the plaintiff, and she was non-suited. She then brought a second suit, in which, as counsel for the defendant said, her “own declaration excused” the defendants of that “negligence,” because it said “that on account of their ferocity they could not govern them, but that they did run upon her.” The first suit failed because the evidence-given that the plaintiff did not challenge the defendants’ antecedent decision to break horses in a public square-showed that the harm was both accidental and inevitable. The court (Hale, C.B.) pointed out, however, that the plaintiff could sue again on a different theory. This accordingly illustrates the way in which some decisions about precautions were governed only by accident, while others were also governed by inevitability. In the Nitro Glycerine[15] case, the defendants, a firm of carriers, received a wooden case to be carried to its destination and its contents were not communicated. It was found that the contents were leaking. The case was taken to the defendants’ office, which they had rented from the plaintiff and the defendants proceeded to open the case for examination but the nitro glycerine which was present had already exploded. All present were killed and the building was badly damaged. The defendants were held not liable “in the absence of reasonable ground of suspicion, the contents of the package offered them for carriage” and that, they were “without such knowledge in fact and without negligence.”

In the case of Holmes v. Matherthe defendant’s horses while being driven by his servant on a public highway ran away from a barking dog and became unmanageable that the servant could not stop them, but could, to some extent guide them. While trying to turn a corner safely, they knocked down and injured the plaintiff on the highway. It was held that the action was not maintainable since the servant had done his best under the circumstances. In the case of Fardon v. Harcourt-Rivington the defendant parked his saloon motor car in a street and left his dog inside. The dog has always been quiet and docile. As the plaintiff was walking past the car, the dog started jumping about in the car, smashed a glass panel, and a splinter entered into the plaintiff’s left eye which had to be removed. Sir Frederick Pollock said: “People must guard against reasonable probabilities but they are not bound to guard against fantastic possibilities” In the absence of negligence, the plaintiff could not recover damages. In the case of Brown v. Kendal the plaintiff’s and defendants dogs were fighting. The defendant was hitting the dogs to stop them from fighting while the plaintiff was standing at a distance watching them. Accidentally, the stick hit and hurt the plaintiff’s eye. In an action for damages it was held that the defendant would not be liable since the damage was the result of a pure accident and not the negligence of the defendant.

Private Defense

Harm inflicted in defense of one’s person, property is justified if it is reasonably necessary. It includes defense of one’s own property, life, but also people close to you like one’s family. Force used must be reasonable and proportionate to the force applied. Moreover force used for prevention of injury and not reprisal. Apprehension is good enough for private defense. Every man has the right to defend himself when it is urgent. The person may not have to wait till he gets a blow from someone else. He may strike before that. But one is not justified in using sword to repel a blow. But if the person is attacked with a deadly weapon, he can defend himself with any weapon. “When a man strikes at another within a distance capable of the latter being struck to resist it, and he is justified in using such a degree of force as will prevent a repetition”. But in case of verbal provocation blow is not justified. The person on the defensive can use as much force as is reasonably necessary.

In case of private defense necessity has to be proved. In case of defense of property the property has to be possessed by the person. It means that if a person is staying in a house on rental then he has the right to defend the property in which he is staying. The owner also has such right but he must be in possession of the property. A person who does not have possession of the land may use reasonable force against persons who obstruct him in carrying out his own duties. In case of trespass one must use reasonable force. One must not use deadly dogs, spring guns to protect his property. If such measures are used then the plaintiff or the injured may get compensations. The principal of private defense extends to killing of other animal if it is reasonably necessary in order to save his property, life and his animals. Killing is justified if the defendant proves that the animal (as well as humans) was attacking, damaging his property, imminent risk of such attack or damage & there was no means other than shooting, or stopping the injury from being committed. In case of injury to third party private defense may apply if the defendant can prove that he acted under that he did not mean to harm, was not negligent and he acted merely under self defense. He may also rely on defense of necessity. Sec 96 IPC says “Nothing is an offence which is done in exercise of the right of private defense”. Private defense may be regarded as a species of self help or self-redress. When a person trespasses into ones house and use derogatory methods then one can repeal the attack by using reasonable force against him to preserve oneself but later one may also go after him and retake from him the goods stolen. The former is private defense and the later is self help. The person are allowed to repel force by force, not for the redress of injuries but for their prevention, not in order to undo a wrong done or to get compensation for it but to cut wrong short before it is done; & the right goes only to the extent necessary for this purpose.

CASE STUDIES

 

Holmes v Bagge.

 

The claimant and the defendant were both members of a cricket club. During the match defendant asked the claimant a spectator to act as a substitute for one of the players. But during the match the defendant rudely asked the claimant to remove his coat which he refused. The claimants neither removed his coat nor leave the field. The defendant forcefully removed the claimant. The defendant when sued for assault pleaded possession of ground but the plea was rejected as the possession of land was in the committee of the club.

Scott v Shepherd. (1773) 2 W & B L 892.

 

A threw a lighted squib into a crowded market. It fell upon a stall of B. C a bystander to prevent injury to himself takes and throws it away. It fell in D’s

Stall who inturn threw it away which exploded on the face of E and blinded his one eye. In such case the intermediate involuntary agents who acted under right of private defense are not liable. The judges decided that even if action has been bought against them they would not have been liable for they acted “under a compulsive necessity for their own safety and self-preservation”

Cook v Beal. (1697) Lord Raym 176.

 

In this case A strikes B, B draws his sword and cuts the head of A. This will not come under private defense as B used unreasonable force.

Bird v Holbrook. (1821) 4 Bing 628.

 

Defendant set some spring guns on his garden because his flowers were stolen from his garden. The plaintiff a boy did not knew the existence of spring guns entered the garden in search of his fowl got injured. The defendant was held liable as he used unreasonable methods to protect his land.

Necessity

In tort common law, the defense of necessity gives the State or an individual a privilege to take or use the property of another. A defendant typically invokes the defense of necessity only against the intentional torts of trespass to chattels, trespass to land, or conversion. The Latin phrase from common law is necessitas inducit privilegium quod jura privata, “Necessity induces a privilege because of a private right.” A court will grant this privilege to a trespasser when the risk of harm to an individual or society is apparently and reasonably greater than the harm to the property. Unlike the privilege of self-defense, those who are harmed by individuals invoking the necessity privilege are usually free from any wrongdoing. Generally, an individual invoking this privilege is obligated to pay any actual damages caused in the use of the property but not punitive or nominal damages.

Private necessity is the use of another’s property for private reasons. Well established doctrines in common law prevent a property owner from using force against an individual in a situation where the privilege of necessity would apply. While an individual may have a private necessity to use the land or property of another, that individual must compensate the owner for any damages caused. For example:

A strong wind blows a parachuting skydiver off course from his intended landing zone. He must land in a nearby farmer’s field. The skydiver tramples on the farmer’s prized roses, and the farmer hits the skydiver on the head with a pitchfork. The skydiver can invoke the privilege of private necessity for trespassing in the farmer’s fields but will have to pay for the damage caused to the roses. The farmer will be liable for battery because the use of force in defense of property is not privileged against an individual who successfully claims private necessity.

In American law, the case most often cited to explain the privilege of private necessity is Vincent v.

Lake Erie Transp. Co., 109 Minn. 456, 124 N.W. 221 (1910).

Vincent v. Lake Erie Transportation Co.

  • Facts

Defendant Lake Erie was at the dock of plaintiff Vincent to unload cargo from Reynolds, the steamship owned by the defendant. An unusually violent storm developed. Lake Erie was unable to leave the dock safely and deckhands for the steamship instead tied the Reynolds to the dock, continually changing ropes as they began to wear and break. A sudden fierce wind threw the ship against the dock significantly damaging the dock.

  • Issue

Is compensation required when there is damage to another’s property due to a private necessity?

  • Decision

(Judge O’Brien) Yes. A private necessity may require one to take or damage another’s property, but compensation is required. If the Reynolds had entered the harbor at the time the storm began, and the wind knocked her against the dock, this force of nature would not have allowed Vincent to recover. The defendant, Lake Erie, deliberately kept the Reynolds tied to the dock. If they had not done so, the ship could have been lost creating a far greater damage than what was caused to the dock. Although this was a prudent thing to do, Lake Erie is still liable to Vincent for the damage caused.

  • Dissent

(Judge Lewis) One who constructs a dock and conducts business assumes a risk of damage that may occur from storms. For this reason, Judge Lewis did not agree with the majority and believed that Vincent had assumed the risk of damage caused by Lake Erie.

To invoke the private necessity privilege, the defendant must have been actually threatened or have reasonably thought that a significant harm were about to occur. The ruling in Vincent v. Lake Erie assures private citizens from a public policy stand point that they will be compensated for their loss. Vincent will be compensated for repairs and Lake Erie can rest assured that their ship will not sink.

Public necessity is the use of private property by a public official for a public reason. The potential harm to society necessitates the destruction or use of private property for the greater good. The injured, private individual does not always recover for the damage caused by the necessity. In American law, two conflicting cases illustrate this point: Surocco v. Geary, 3 Cal. 69 (1853) and Wegner v. Milwaukee Mutual Ins. Co. 479 N.W.2d 38 (Minn 1991).

Surocco v. Geary

  • Facts

San Francisco was hit by a major fire. The plaintiff, Surocco, was attempting to remove goods from his home while the fire raged nearby. The defendant and mayor of San Francisco, Geary, authorized that the plaintiff’s home be demolished to stop the progress of the fire and to prevent its spread to nearby buildings. Surocco sued the mayor claiming he could have recovered more of his possessions had his house not been blown up.

  • Issue

Is a person liable for the private property of another if destroying that property would prevent an imminent public disaster?

  • Decision

No. The right of necessity falls under natural law and exists independent of society and government. Individual rights must give way to the higher law of impending necessity. A house on fire or about to catch on fire is a public nuisance which is lawful to abate. Otherwise one stubborn person could destroy an entire city. If property is destroyed without an apparent necessity, the destroying person would be liable to the property owner for trespass. Here, blowing up Surocco’s house was necessary to stop the fire. Any delay in blowing up the house to allow him to remove more of his possessions would have made blowing up the house too late.

The decision in Surocco v. Geary differs from the private necessity doctrine that a trespasser must compensate a property owner for any damage she may cause. The next case coincides with the private necessity doctrine and shows that American courts are conflicted on the issue of compensation for damage.

Wegner v. Milwaukee Mutual Ins. Co

  • Facts

A suspected felon barricaded himself inside of plaintiff, Wegner’s house. The Minneapolis police department fired tear gas canisters and concussion grenades into the house causing extensive damage. Wegner sued the defendant, the City of Minneapolis for trespass. Wegner claimed that the City’s actions constituted a “taking” of his property under principles similar to those outlined in the Fifth Amendment to the US Constitution: this was a taking of his private property for public use and so the City was required to compensate him for it. The City claimed there was no taking because the police’s actions were a legitimate exercise of police power. Lower courts ruled that the City was justified under the doctrine of public necessity and that the City was not required to compensate Wegner. Wegner appealed to the State Supreme Court in its claim against the City’s insurance company.

  • Issue

Must a city compensate a homeowner whose property was damaged in the apprehension by police of a suspect?

  • Decision

(Judge Tomljanovich) Yes. Under Minnesota’s constitution, the government must compensate a landowner for any damage it causes when it takes private land for public use. Whether the police acted reasonably is not relevant. The constitutional provision is not limited to an improvement of property for public use. The doctrine of public necessity does not change our holding. Once a taking has been found to exist, compensation is required. If the public necessity doctrine were to apply to a situation like this, no taking would ever be found. Fairness and justice require this result. It would not be fair for Wegner to suffer the burden of his loss for the public good. Therefore, the City must bear his loss. In addition, the individual police officers are not personally liable; the public must bear the loss.

It is an issue of public policy to determine if either private individuals or the public at large through taxes should bear the loss for damages caused through public necessity. Wegner v. Milwaukee allocates the loss that benefits the public to the public rather than to Wegner, the innocent citizen. Cases with similar facts to Wegner have used the public necessity doctrine under Surocco, and the individual must bear the cost of the greater public good. Courts determine this issue as a matter of public policy.

 

Necessity and private defense, are they interrelated?

 

This defense (necessity) may be presented by a defendant in cases where action has been undertaken out of necessity for public or private good, such as to save a life. Such actions often involve trespass on another’s property, or even damage to their goods, but under the circumstances, were necessary.

E.g. A car accident late at night causes several serious injuries requiring immediate ambulance assistance. One of the victims breaks the window of a nearby gas station to use their phone to call 111.

 

Necessity is such a defense that it is widely applicable under different heads, e.g., executive and military authority and in case of private defense.

 

The defense is available if the act complained of was reasonably demanded by the danger or emergency. (Pollock, torts 15th ed p 122)

 

In this case there is an immediate threat of danger and it’s reasonable to defend oneself. Every man has the right to defend himself when it is urgent. Acts of defense of oneself or another in a sense falls under necessity. The common link between necessity and private defense is “defendants conduct has to be reasonable in the circumstances”. The plea of necessity will succeed if the defendant can show that his that his act is reasonably necessary to prevent harm to a third party like say for e.g. family or strangers which comes under private defense. In case of third party the case Scott v Shepherd. (1773) 2 W & B L 892 clearly explains it.  Necessity is a defense when it comes to trespass. This is also applicable when it comes to trespass of fierce animal, robbers, thief’s etc. A person who does not have possession of the land or who has may use reasonable force against persons who obstruct him in carrying out his own statutory rights. In case of trespass one must use reasonable force. The test is same for actions in defense of persons and property, if it is reasonably necessary in the circumstances but application is different in two cases. Devlin. J said “The safety of human lives belong to different scale of values from the safety of property. The two are beyond comparison and the necessity of saving life has at all times been considered a proper ground for inflicting such damage as may be necessary upon another’s property” in case of private defense attack, apprehension, threat are important. In case of necessity attack, apprehensions, threats are not the conditions.

 

Act of defense itself falls under private defense. Private defense presupposes some kind of attack or threat against the person acting in defense, while necessity does not; and in case of self defense it would usually be the case that the plaintiff is in wrong himself. Acts of private defense is itself a necessity when it comes to trespass. Private defense is available against one self but necessity is available against the public at large. Acting in the public interest can itself be a necessity but such rights are not available when it comes to private defense. Necessity is the macro aspect of private defense and private defense is a micro aspect. In case of private defense necessity has to be proved.

Act of God

Act of God is a legal term for events outside human control, such as sudden floods or other natural disasters, for which no one can be held responsible.

When something occurs over which you have no control and it is effected of accentuated by the forces of nature then you are not liable in tort law for such inadvertent damage that may arise out of such. However if you were well aware of the risks and could have possibly taken steps to stop the wrongful act or damaging act or have in anyway mitigated it then you cannot duck responsibility under this defence. Constituents of this defence:

  • Due to forces of nature or unnatural circumstances.
  • You had no control over it and it happened suddenly.
  • You had no knowledge or could not do anything to mitigate the damage.

Statutory Authority

Act in respect to Statutory Authority Any damage arising out of an act that the law prescribes or the statute authorises will never become actionable even though in absence of such statutory authority it is an offence in tort.

Some other defenses

Mistake (which is of two types):

  1. Mistake of Law.

Mistake of law is no defense and ignorance of law, no excuse.

  1. Mistake of Fact.

Mistake of facts is a defense in crime but inn torts, nistake of facts is not a defense every time.

This     would make    you      clear     that      when   is          mistake            of         fact      a             defense.

Mistake can be pleaded as a defense in the following cases:

  1. Malicious prosecution of an innocent

Where motive or intention is essential, mistake is a defense. (e.g. in case of malicious prosecution). Malice takes away the defense of mistake. If there is a malice on the part of police officials in prosecuting an innocent person, then it is a tort for which mistake is no defense.

  1. Mistaken Arrest of an innocent person

Mistaken arrest of an innocent person can be pleaded as a defense. However, a reasonable and well-founded suspicion, even if proven false at a later stage, is not a tort, provided, of course, that it is free from any vengeance and negligence.

  • Right to private defense:- This right entitles a person to go to any extent to protect one’s life, property, or any third person. Provided, of course, that such a force used in private defense must be reasonable force to repel the attack and it should always be in defensive and not offensive.

Also, the danger must be imminent. If there is malice and one is not naturally reacting to the attack on oneself but such a reaction is pre-planned then such a force is deemed to be unreasonable and the defense is not available.

The following case should make the application of the defense clearer. Please note that you are under no compulsion to memorise these facts. These are only for your convenience.

In this case , a dog belonging to Tewari, began chasing the Chauhan’s servant Raju and bit him. Then Tewari turned around and raised his gun. The dog on seeing an imminent threat to his life, ran away, however, he shot the running dog.

Here the private defense is not available as the act of shooting the dog was an offence and not a defense ( as Tewari shot a dog that was already leaving the site and there was no imminent threat to him in that situation).

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