Friday, 11 February 2022

GENERAL DEFENCES UNDER TORTS

                      GENERAL DEFENCE UNDER LAW OF TORTS 






WHAT ARE GENERAL DEFENCE ?


THE GENERAL DEFENSES ARE BASICALLY A SET OF DEFENSES THAT HAVE ARISEN OVER TIME AND HAVE BEEN ADOPTED BY THE COURTS FROM TIME TO TIME WHICH MAY BE REGARDED AS EXCUSES TO EVADE SENTENCING AS LONG AS THE DEFENDANT'S ACTION FITS THE RELEVANT TERMS AND CONDITIONS. SELF-DEFENSE RESPECTIVELY. THERE ARE OTHER FORMS OF SELF-DEFENSE THAT ARE PARTICULARLY ASSOCIATED WITH CERTAIN CASES, SUCH AS DEFAMATION, PROTECTION OF THE TRUTH, RIGHTS AND THE RIGHT COMMENTS, WHILE THERE ARE OTHER PROTECTIONS THAT CAN BE APPLIED TO ALL OR MOST OF A CASE SUCH AS THE CONSENT AND ERROR OF A THIRD PARTY. .


SOME OF THE MOST COMMON DEFENSES IN THE HARASSMENT ACT ARE AS FOLLOWS:


VOLENTI NON FIT INJURIA I.E. PERMISSION

PLAINTIFF IS THE WRONG DOER 

INEVITABLE ACCIDENT

AN ACT OF GOD

PRIVACY PROTECTION

NECESSITY 

LEGAL AUTHORITY

VOLENT NON FIT INJURIA (PERMISSION)


THE LATIN PHRASE VOLENTI NON FIT INJURIA MEANS A PERSON WHO IS WILLING TO SUFFER AND GIVE PERMISSION FOR THE SUFFERING AND INJURY CAUSED BY THE ACTIONS OF THE DEFENDANT AND CANNOT COMPLAIN ABOUT SUCH HARM TO HIS OR HER LEGAL RIGHTS. IN THE EVENT THAT THE PLAINTIFF, WITH HIS OR HER OWN CONSENT TO THE INJURY, IS UNABLE TO HOLD THE DEFENDANT LIABLE FOR SUCH INJURY AND THE DEFENDANT MAY USE THE DEFENSE OF THE VOLENT NON FIT INJURIA TO BE EXEMPT FROM ANY LIABILITY THAT MAY ARISE. THE RATIONALE FOR THIS DEFENSE IS THAT THE PERSON CANNOT DELIBERATELY ENFORCE SUCH RIGHTS WHICH HE OR SHE HAS DELIBERATELY AND WITH HIS OR HER CONSENT BEEN GRANTED. SUCH INTENTIONAL CONSENT MAY BE SUBJECT TO EXPLICIT OR IMPLIED TERMS.


IN THE CASE OF HALL V. BROOKLANDS AUTO RACING CLUB THERE WAS A CAR RACE GOING ON AND THE PLAINTIFF WAS A SPECTATOR OF THAT RACE RUNNING ON THE DEFENDANT'S TRAIL. TWO VEHICLES COLLIDED, ONE OF WHICH SWERVED TOWARDS THE SPECTATORS, INJURING THE COMPLAINANT. IN THE ACTION BROUGHT BY HIM, THE COURT SAID THAT THERE WERE PLAINTIFFS WHO DELIBERATELY CONSENTED AND DELIBERATELY RISKED WATCHING THE EVENT WHERE SUCH INJURIES COULD BE SEEN AND THE DEFENDANT WAS INNOCENT.

PLAINTIFF IS THE PERPETRATOR OF THE ERROR


THE LATIN WORD MAXIM ‘EX TURPI CAUSA NON ORITUR ACTIO’ MEANS ‘FROM IMMORALITY, NO ACTION ARISES’. THE DEFENDANT HAS BEEN ACQUITTED OF THE CHARGES AGAINST WHICH THE PLAINTIFF'S ACTION IS UNLAWFUL OR UNLAWFUL. IN THESE CASES, THE PLAINTIFF IS UNABLE TO SEEK LEGAL ASSISTANCE IN COURT AS HE IS ALSO AT FAULT INITIALLY AND HIS ACTIONS LED TO HIS LEGAL INJURY.


 IN THE CASE OF PITTS V. HUNT , AN 18-YEAR-OLD PASSENGER ENCOURAGED HIS 16-YEAR-OLD FRIEND BY SPEEDING UNDER THE INFLUENCE OF ALCOHOL. THE CAR WAS INVOLVED IN AN ACCIDENT AND A YOUNG BOY WAS KILLED AND AN OLDER MAN WAS INJURED. THE COURT REJECTED THE CLAIM AS THE PLAINTIFF IN THIS CASE IS THE PERPETRATOR AND THE DEFENDANT CAN USE THIS DEFENSE TO EVADE PROSECUTION.


INEVITABLE DANGER


ACCIDENT MEANS UNFORESEEN INJURY AND IF SUCH AN ACCIDENT IS OF A PREVENTABLE NATURE IN SPITE OF ALL THE PRECAUTIONARY MEASURES AND PRECAUTIONS THAT CAN BE TAKEN BY THE DEFENDANT, THEN IT IS KNOWN AS THE PREVENTABLE ACCIDENT WHICH SERVES AS A PROTECTION AGAINST THE ACCIDENT. DEFENDANT TO FREE HIMSELF FROM ANY OBLIGATION. 


IN THE CASE OF STANLEY V. POWELL , BOTH OF THEM WENT ON TO BE SHOT IN THE HEAD WHEN THE DEFENDANT FIRED A SHOT AT THE PHIASANT. HOWEVER, A BULLET WAS FOUND IN AN OAK TREE AND STRUCK THE COMPLAINANT, CAUSING HIM SERIOUS INJURIES. IN THE ACTION BROUGHT BY THE PLAINTIFF AGAINST THE DEFENDANT, THE COURT HELD THAT THE INCIDENT WAS INESCAPABLE AND THAT THE DEFENDANT COULD BE ACQUITTED OF ANY KIND OF OFFENSE.


ACTION OF GOD / VIS MAJOR


GOD'S ACTION SERVES AS A FINE PROTECTION FROM THE LAW OF TORT. DEFENDING THE ACT OF GOD STILL APPLIES EVEN WHEN COMPARED TO THE STRICT LIABILITY LAW THAT EMERGED FROM THE CASE OF RYLANDS V. FLETCHER . THE DEFENSE OF ACT OF GOD FINDS ITS APPLICATION IN THOSE CASES WHERE AN INCIDENT OCCURS THE DEFENDANT IS OUT OF CONTROL AND THE RESULTING DAMAGE IS DUE TO NATURAL FORCES. 


THERE ARE TWO IMPORTANT TYPES OF GOD'S ACTION:


1. NATURAL FORCES MUST WORK:


IN RALINGA NADAR V. NARAYAN REDDIAR , AN UNRULY MOB LOOTED EVERYTHING FROM THE COMPLAINANT'S TRUCK. IN THE ACTION BROUGHT BY THE PLAINTIFF, THE COURT FOUND THAT THE DEFENSE OF GOD'S LAW COULD NOT BE TAKEN AND THE PLAINTIFF SHOULD BE COMPENSATED.


PRIVATE DEFENCE 


THE LAW GIVES EVERYONE THE RIGHT TO PROTECT THEIR HEALTH AND PROPERTY AND EXTENDS TO THE WHOLE LIFE OF OTHER PEOPLE AND PROPERTY. THE HARASSMENT ACT RECOGNIZES THIS RIGHT AND ANY ACTION ON THE PART OF THE PERSON EXERCISING THIS RIGHT IS DEEMED NOT TO BE THE CAUSE OF ANY VIOLATION OF THE LEGAL OBLIGATION. THE FOLLOWING ARE TWO IMPORTANT FACTORS IN THIS DEFENSE:


1. THERE MUST BE A REAL AND IMMEDIATE THREAT TO HEALTH OR PROPERTY.


2. POWER IS USED ONLY FOR THE PURPOSE OF PROTECTION AND NOT FOR RETALIATION.


3. THE ENERGY USED SHOULD BE EQUAL TO THE THREAT.


NECESSITY


THE GENERAL DEFENCE OF NECESSITY PROVIDE THE DEFENDANT WITH THE PRIVILEGE TO GIVE RISE TO LEGAL INJURY TO THE PLAINTIFF IN IN ORDER TO AVOID GREATER HARM. AS PER THIS DEFENCE, IF AN ACT IS INTENTIONALLY DONE RESULTING IN LEGAL INJURY TO ANOTHER PERSON IN ORDER TO PREVENT GREATER HARM, THE DEFENDANT WOULD NOT BE HELD LIABLE.


IN CASE OF LEIGH V. GLADSTONE , THE COURT OBSERVED THAT FORCIBLY FEEDING A PERSON WHO IS ON HUNGER STRIKE IN PRISON AMOUNTS TO NECESSITY AND THE DEFENDANT CANNOT BE MADE LIABLE FOR BATTERY.


STATUTORY AUTHORITY:


AN ACT WHICH IS AUTHORISED BY THE ACT OR STATUTES PASSED BY CONCERNED AUTHORITIES DOES NOT BECOME ACTIONABLE EVEN THOUGH OTHERWISE IT WOULD AMOUNT TO TORT. IT SERVES AS A TOTAL DEFENCE FROM LIABILITY . IN THE CASE OF VAUGHAN V. TAFF VALDE RAIL CO. THE SPARKS FROM THE RAILWAY ENGINE OF DEFENDANT’S COMPANY AUTHORISED, SET FIRE THE WOODS OF PLAINTIFF IN THE ADJOINING LAND. SINCE THE AUTHORITY WAS PROVIDED UNDER STATUTE, THE DEFENDANT WAS HELD NOT TO BE HAVING ANY LIABILITY TORT AS THE DEFENCE OF STATUTORY AUTHORITY .


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