Tuesday, 19 July 2022

General Defence Under Tort

 General Defences Under Tort

When a plaintiff brings an action against the defendant for a particular tort or violation of legal

right, resulting in legal damages, and successfully proves the essentials of a tort, the defendant is

held liable. However few exceptions are there in which the defendant can plead some defences

which can help him in absolving from liabilities. Below listed are the General defences in tort.

1. Private Defence

Among the general defences in tort, private defence is the most common. When a defendant

tries to protect his body or property or any other person’s property, harms another person by

using reasonable force, under an imminent-danger and where there is no time to report instantly

to the authority, it is Private Defence. The harm done should be proportional according to the

nature of the circumstances.

Essentials

Imminent Danger: There should be an immediate threat over the life or property of the

defendant or another person’s property in which there is no time to report to the nearest

authority. If the defendant is not able to contact that specific authority, then he can start the

private defence.

2. Proportional Force

The defendant should apply a reasonable force. It should not be in excess of what is required.

Eg. If a thief breaks into the defendant’s personal property and tries to injure the defendant by

beating him with a rod, then the defendant should tackle the thief using proportional force. If he

is using a shotgun, then he can fire it on thief’s legs instead of his chest/forehead or it would be

unreasonable.

3. Necessity

‘Necessity knows no law’. In order to avoid or prevent a great loss or harm, a defendant can

cause lesser harm that is justified. The act of the defendant may be not legal but if it is to avoid

major damage then he can plead this defence.

Essentials

 When the defendant acts to avoid a significant risk of harm.

 His causing of harm should be justified.


4. Inevitable Accident

Inevitable Accident is a mishap. Its occurrence cannot be prevented despite taking any degree

of care and attention by an ordinary and sagacious individual.

5. Act of God

A very unusual act or an event which is the result of the natural forces such as earthquakes,

volcanic eruptions, floods, droughts, etc. is coined as Act of God or ‘Vis major’. It is beyond

human imagination and could not be prevented by human intervention.

Essentials

 The act should result from a natural force.

 No human intervention.

 Extraordinary in nature

6. Mistake

When a defendant acts under a mistaken belief in some or the other situation, he may plead the

defence of mistake. A mistake is of two types:

 The mistake of law: No defence in each civil and criminal case.

 The mistake of fact: Not valid in torts


Statutory Authority

Another general defence is statutory Authority. If an act is sanctioned by a statutory enactment

or a law passed by the legislature, then the defendant cannot be held liable for the damages

resulting in the course of such an act.

When a plaintiff himself is the wrongdoer?

It is based on the maxim ex turpi causa that if the plaintiff himself is engaged in the wrongful act

or conduct, then he cannot recover damages.

But if a defendant asserts that claimant himself is the wrongdoer and not entitled to the

damages, then it does not mean that the court will declare him free from the liability.

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