TOPIC ELEVEN: GENERAL DEFENCES FOR TORTS

When a person has committed a tort, he can avoid or limit his liability by providing a
legal justification or excuse. This is what is called a defence. A defence is raised by
the defendant in a direct attempt to avoid what would otherwise result in liability. A
defendant is liable for a tort if the plaintiff can prove that the tort was committed
against him.

But even if the plaintiff has proven this fact, the defendant can still avoid or limit his
liability by providing a defence. There are several general defenses available. (those
that apply to most of the torts).

On the other hand, there are specific defenses available in a suit for tort. These
defences are specific and find application in relation to a fixed nature of tort. e.g. Self-
defence is a specific defence for Battery or Assault, while Justification or Truth or
Fair comment are Specific defences for Defamation.

1. DEFENCE OF CONSENT/ VOLENTI NON FIT INJURIA

A direct translation of the Latin phrase ‘Volenti non fit injuria’ is ‘to one who
volunteers, no harm is done’. Where the defence of volenti applies it, operates as a
complete defence absolving the defendant of all liability.

It is often stated that the Claimant consents to the risk of harm, however, the defence
of volenti is much more limited in its application and should not be confused with the
defence of consent in relation to trespass. The defence of volenti non fit
injuria requires a freely entered and voluntary agreement by the Claimant, in full
knowledge of the circumstances, to absolve the Defendant of all legal consequences
of their actions.

It does not apply if the defendant did the act intentionally i.e. in battery, assault, false
imprisonment, trespass to land and interference to goods.
The requirements of the defence are:
a. Voluntary Consent: The agreement must be voluntary and freely entered for the
defence of volenti non fit injuria to succeed. If the Claimant is not in a position to
exercise free choice, the defence will not succeed. In Hargetry v. Shiner, The
plaintiff woman consented to have sex with a man who had an STI and she sued
in tort claiming that the defendant had committed fraud and intentionally infected
her with a STI. The court held that there was no fraud because the consent was
given freely with full knowledge of the act.
b. Agreement: The agreement may be express or implied. An example of an
express agreement would be where there exists a contractual term or notice. An
implied agreement may exist where the Claimant’s action in the circumstances
demonstrates a willingness to accept not only the physical risks but also the legal
risks.
c. Knowledge: The claimant must have knowledge of the full nature and extent of
the risk that they ran.

2. DEFENCE OF CONTRIBUTORY NEGLIGENCE

Contributory negligence is negligent conduct by the injured party that is a
contributing cause of her injuries, and that falls below the legal standard for protecting
oneself from an unreasonable risk of harm.

At common law, the defense of contributory negligence was an absolute defense and
served as a complete bar to recovery. Most jurisdictions today have adopted the
doctrine of comparative negligence, whereby the amount of the plaintiff’s award is
reduced by the extent to which plaintiff’s conduct contributed to the harm.

The defendant must prove that:

 - The plaintiff exposed himself to the risk by his act or omission.
 - The plaintiff was at fault or negligent.
 - The plaintiff‟s negligence or fault contributed to his suffering.

The defense of contributory negligence generally is not available for intentional torts
or where the defendant is found to be guilty of wanton and willful misconduct. It can
also be unavailable where the defendant has violated a statute clearly designed for the
protection of the plaintiff. Contributory negligence is not a defense for strict liability
torts unless the plaintiff has knowingly assumed an unreasonable risk.

In Butterfield vs. Forrester [1809], Lord Ellenborough stated that, “A man is under a
duty to use common and ordinary caution or his own good. Even if a party is observed
to be riding on the wrong side of the road, a man of ordinary sense does not ride
against them after seeing them in the wrong. One person being in fault will not
dispense with the requirement that the other must use ordinary care for himself”

3. INEVITABLE ACCIDENT
Accident means an unexpected injury and if the same accident could not have
been stopped or avoided in spite of taking all due care and precautions on the
part of the defendant, then we call it an inevitable accident. It serves as a good
defence as the defendant could show that the injury could not be stopped even after
taking all the precautions and there was no intent to harm the plaintiff.

In Stanley v. Powell, the defendant and the plaintiff went to a pheasant shooting.
The defendant fired at a pheasant but the bullet after getting reflected by an oak tree
hit the plaintiff and he suffered serious injuries. The incident was considered an
inevitable accident and the defendant was not liable in this case.

4. ACT OF GOD
Act of God is a kind of inevitable accident in which the natural forces play their role
and causes damage. For example, heavy rainfall, storms, tides, etc. The act of God is a
defence used in cases of torts when an event over which the defendant has no control
occurs and the damage is caused by the forces of nature.

In such cases, the defendant will not be liable in tort law for such inadvertent damage.
An essential required for this defence is that there must be an extraordinary
occurrence and not the one which could be anticipated and guarded against
reasonably. In Nichols vs. Marshland (1876), the defendant had a number of artificial
lakes on his land. Unprecedented rain that had never been witnessed in living memory
caused the banks of the lakes to burst and the escaping water carried away four
bridges belonging to the plaintiff. It was held that the plaintiff's bridges were swept by
act of God and the defendant was not liable.

5. NECESSITY
Where intentional damage is done so as to prevent greater damage, the defense of
necessity can be raised. In Cope vs. Sharpe (1912), the defendant committed certain
acts of trespass on the plaintiff's land in order to prevent fire from spreading to his
master's land. The fire never in fact caused the damage and would not have done so
even if the defendant had not taken the precautions he took. But the danger of the fire
spreading to the master's land was real and imminent. It was held that the defendant
was not liable as the risk to his master's property was real and imminent and a
reasonable person in his position would have done what the defendant did.

6. STATUTORY AUTHORITY
When the commission of what would otherwise be a tort, is authorized by a statute the
injured person is remediless, unless so far as the legislature has thought it proper to
provide compensation to him. Immunity under statutory authority is not given only
for the harm which is obvious but also for the harm which is incidental.

In the Case of Vaugham v. Taffvale Railway Co. (1860), a railway company was
authorized by statute to run a railway, which traversed the plaintiff's land. Sparks
from the engine set fire to the plaintiff's woods. It was held that the railway company
was not liable. It had taken all known care to prevented emission of sparks. The
running of locomotives was statutorily authorized.