October 20, 2021

Torts and the Defences against the Torts

Law of torts

Introduction

Tort is a civil wrong. According to Salmond “Tort is a civil wrong for which the remedy is a common law action for unliquidated damages, and which is not exclusively the breach of a contract or the breach of a trust, or other merely equitable obligation”.

Winfield defines torts as “Tortious liability arises from the breach of a duty primarily fixed by law. This duty is towards persons generally and its breach is redressable by an action for unliquidated damages”

This is what we all are taught early on in law school. A tort is a wrong committed which has no codified redressal. Compensation is the only way through which an offence of tort can be redressed. There are several general defences to torts and specific defences to certain torts.

General defences to torts

General defence to torts are a set of defences that a respondent can resort to when a suit is filed against him. However certain basic conditions need to be satisfied if these defences are to be applied. A brief description of these are provide.

Defence of Volenti non fit Injuria is applicable where the plaintiff gives explicit or implicit permission to actions that caused the injury to arise. The consent given by plaintiff is required to be free. He supposedly knows the risk associated and out of his own volition agrees to it. In the instance where the plaintiff is the wrongdoer, the Court takes into account the maxim of ‘ex turpi causa non oritur actio’. It literally translates to no action arises out of an immoral cause. Where the plaintiff himself is engaged in illegal and immoral activities and he suffers injury in some way in the course of that, he is not entitled to any redressal.

In the landmark judgement of Stanley Vs Powell[1], Courts set the precedent for Inevitable Accident. If under unforeseeable circumstances plaintiff suffers an injury that could not have been avoided even after taking reasonable precautions and having general foresight, the defendant will not be held liable. Vis Major or Act of God is an inevitable accident where no human foresight could have predicted the disastrous outcome, however its difference with the defence of inevitable accident is that it has to be a natural calamity like floods, excessive and unprecedented rainfall, storms, tempest, tides etc. Law permits a Private Defence where there is imminent threat to one’s person or property.

However, for this defence to work, there has to be a real and imminent threat and force used to repel the invasion should be proportionate. A Mistake of law or fact is usually not a defence to tortuous liability. To prevent a greater evil of sorts, an intentional action that causes injury may be performed without consequences. But it has to be proved beyond reasonable doubt that there was absolute Necessity for said action. When an act causing injury is performed that finds sanction in any Statute it is an absolute defence.[2]

Specific Defence to Torts

There are numerous specific torts like negligence, nuisance etc.

Negligence

When a person is duty-bound to another to take reasonable care and take precautions against all foreseeable injury, there rises a duty of care. Breach of said duty gives rise to the tort of negligence. In ordinary usage the term simply means recklessness, forgetfulness, being irresponsible etc. However, in a legal premise, it means failure to comply with the necessary mandates that come with being duty-bound to another. There is medical negligence when a doctor breaches their duty of care to patients.

A construction worker who recklessly does not take requisite precaution and an unfortunate accident occurs bringing about injury to a passerby, will be held liable. Thus, the requisites for the tort of negligence is a pre-existing duty of care, breach of said duty, and injury caused as a result of that breach. The duty that arises must be legal, rather than moral or ethical.

In the case of Donoghue Vs Stevenson[3], the manufacturer of ginger ale was held liable when a customer suffered severe illness from consumption of a ginger ale that was contaminated by a decomposing snail. The manufacturer has a duty of care to the customer. The defence to negligence can be the lack of said legal duty. The duty depends on the reasonable foresee ability of the injury. How a rational man with oversight foresees possible danger of injury determines if a duty of care exists or not.

In the case of S Dhanaveni Vs State of Tamil Nadu[4], the deceased slipped and fell into a pit of water, touched a faulty electric pole to avert a fall, got electrocuted and died. The defendant was held responsible because of a prominent duty of care.

Another defence is that the injury has to be foreseeable by a reasonable man. If it is not so, there can hardly be precautions taken to prevent it. Along with it, a reasonable possibility of the occurrence of the injury has to be there as well. Another defence is the standard of care, for which three points need to be kept in consideration. Foremost is the importance of the object. For public interest, limited risk may be allowed. The law cannot demand same amount of care in all situations. The same degree maybe different in different circumstances. The magnitude of risk is calculated here. The degree of care is also dependent upon the nature of services provided by the defendant and the consideration charged.

In the case of Pillutla Savitri Vs GK Kumar[5], the amount of damage done to the plaintiff and its direct relation to the defendant’s action was discussed. The plaintiff’s husband was relaxing in his ground floor balcony where due to some construction work in the first floor, portion of roof and parapet fell on him resulting in his immediate death. The defendant was liable.

Nuisance

Interference of a person’s enjoyment of land in the form of fumes, smoke, smell or in any other way constitutes nuisance. It may be public nuisance which disrupts the activities or causes harm in any way to the general public and is a punishable offence. Or it may be a private nuisance which hampers the convenience or comfort of a single landowner or resident. Only private nuisance is a tort. There are certain essentials to constitute a nuisance however. It has to be unreasonable interference. If the plaintiff is sensitive to an issue greatly which hampers everyone in a similar way, he is not entitled for redressal. For example, however much a sick man may be distressed in traffic, if it is the foreseeable status quo to an ordinary man, it will not constitute a nuisance. Nuisance has to be continual in nature, like a continuous smell, or constant loud banging noise etc. Malice is not a component to it. If an action is considered legal, even if it done with malicious intention will not constitute nuisance. However, if said action conducted bearing ill will becomes an unreasonable interference, it will be actionable per se. The damage thus carried out can be to the property itself or to the enjoyment of the property by the residents. However, in the case of a public nuisance, the plaintiff can ask for compensation only if he proves that there is some special damage to him.

In the case of Fay Vs Prentice[6], a corner of the defendant’s house projected over the plaintiff’s garden. It was considered a nuisance considering the fact in rainy season, the rain water would percolate down and damage the garden.

There are several accepted and rejected defences to the tort of nuisance. Sturges Vs Bridgman[7] provides a landmark judgement on prescriptive right to commit nuisance. If for 20 years the defendant had a practice of particular ‘nuisance’ and attained prescriptive right over it, after 20 years it will be considered a right ab initio. If the nuisance continued on another person’s property and went on peacefully for 20 years, only then can it be legalised. Otherwise through an easement the prescriptive right is gained. If a statutory authority permits it, it is an absolute defence. There is no liability under law of torts then.

Trespass

Trespass is a direct interference with the enjoyment of land of someone by some material or tangible objects. It consists several other torts mentioned below

Battery

It is a use of force on someone without any lawful justification. The force may not be something too huge, even touching another person in anger, hurling stones, water etc constitutes a battery. There has to be no lawful justification behind it. On a trespasser, the plaintiff may use only reasonable amount of force. In the case of Stanley Vs Powell[8], the defendant fired at a pheasant but the bullet pelted off a tree and injured the plaintiff, another member of the shooting party. There was no negligence on the defendant’s part so he had no liability.

Assault

An assault is any action by the defendant which gives the plaintiff reasonable apprehension of intended harm. The defendant should have the capacity to carry out the offence for it to be considered as a tort of assault.

False Imprisonment

it constitutes of total restraint on movement of a person without any lawful justification.

Unlawful detention

If a person is not released from jail after his acquittal and is still continued to be detained, such detention is unlawful.

Defamation

A defilement of name and reputation of a person that brings him down in the eyes of society constitutes defamation. It can be a word spoken, a defamatory remark which is called Slander. It can also be written in a letter, shown in a televised and recorded interview, published in a newspaper or journal etc. which is termed Libel. To be a tort of defamation the essentials are that the remark has to be defamatory in nature even though the person making the statement may believe it to be innocent.

In the reputed judgement of Snm Abdi Vs Prafulla Kumar Mahanta[9], illustrated weekly of India published an article throwing allegations at the deposed chief minister of Assam. It was found to be defamatory and heavy damages was paid. The defamatory remark or writing or interview or picture has to be proven to have been made about the plaintiff. The statement must be published in a way that his reputation is tarnished.

There are certain defences to defamation as well. If it can be proved that the statement was a fair comment, or the truth, or said in public interest for the greater good etc. there is another defence termed privilege. When the fundamental right of freedom of speech outweighs the individual’s infringement of reputation, no case of defamation can be made. Privilege can again be divided into two types, absolute and qualified. In absolute privilege, given in parliamentary proceedings and judicial proceedings, no case of defamation can be filed whatsoever even if the statement may be false or given with malicious intent. For qualified privilege, there has to be proof of an absolute lack of malicious intent. These are usually fair comment or publications regarding judicial proceedings that had to be made on a privileged occasion ie in discharge of a duty or protection of an interest.

Conclusion

These are some of the specific defences to torts. After the commission of tort, the question of liability of the defendant arises, if his actions are directly responsible for the woes of the plaintiff, and how much the damage is. There is no objective measure. However, the tests of reasonable foresight and directness helps in understanding the remoteness of damage. The most recent view is that the defendant is the wrongdoer who will be responsible for all the injuries directly related to his wrongful act whether he could foresee the consequences or not.


[1] (1891) 1 QB 86 (QBD)

[2] Dr. RK Bangia, Law of Torts

[3] (1932) UKHL 100

[4] 1999 ACJ 728, AIR 1997 Mad 257, (1997) IIMLJ 325

[5] 2001 ACJ 1156, 2000 (5) ALD 194, 2000 (5) ALT 58

[6] [1845] EngR 79, (1845) 1 CB 828, (1845) 135 ER 769

[7] (1879) LR 11 Ch D 852 

[8] (1891) 1 QB 86

[9] AIR 2002 Gau 75

Author: Debasrita Choudhury  (K.L.E. Society Law College)

Instagram

Leave a Reply