Professional Documents
Culture Documents
Acts 2
Justification
DEFENCES
1.1
Though some torts have special defences, e.g privilege in the tort of
defamation, there are certain general defences which when present
will prevent an act from being actionable in court, they include:1. Volenti non fit injuria
2. Mistake
3. Inevitable accidents
4. Acts of God
5. self defence
6. Necessity
7. Statutory authority
8. Contributory negligence
1.1.1 Volenti non fit Injuria
A literal meaning of this terms is, no injury is done to one who
consent , and in simple words it means that a person who consents to
run a risk voluntarily cannot maintain an action
person who inflicts an injury. This defence can be seen as involving two
important factors:a) Consent to intentional harm
b) Assumption of risk to negligent harm.
Consent to intentional harm means that you have expressly or
impliedly consented to the risk of harm. No man can enforce a right,
which he has voluntarily waived or abandoned e.g. consent to bodily
harm, which would otherwise be assault. This situation occurs
especially in relation to sports. In case of Simms vs. Leigh Rugby
Football Club 1969, Simms, a visiting player broke a leg as he was
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artificial lakes on her land which had been created earlier when natural
streams was dammed. An exceptionally heavy rainfall occurred which
swelled the lakes and caused the lakes to burst. The tide of water
carried away four bridges belonging to the county council. The county
surveyor sued marsland. The court held that the defendant was not
liable because the escape of water was an Act of God. It was sufficient
to provide against the operation of nature, but it was not necessary to
provide against miracles.
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Statutory Authority
Necessity
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Contributory negligence
Where any person suffers damage as a result partly of his own faukt
and partly by the fault of any other person(s) a claim in respect of that
damage shall not be defeated by reason of the fault of the person
suffering the damage but the damage recoverable in respect thereof
shall be reduced to such an extent as it reflect his participation.
In Bird vs. Holbrook, the plaintiff was a trespasser as he claimed over
the defendants wall in pursuit of a fowl, but he was held entitled to
damages for the injury caused by a spring gun set by the defendant
without notice in his garden, although the injury would not have
occurred if the plaintiff had not trespasses on the defendant land.
Persons engaging in an unlawful act may not sue for any injury caused
by one to the other unless it is outside their common pursuit. The
conduct and the relative moral culpability of the parties may eb
relevant in determining whether or not ex turpi causa non oritur1
action fails to be applied
In order to prove contributory negligence, the defendant must prove
the following:a) that the claimant acted carelessly
b) it is also necessary to show that the claimant owed the
defendant a duty of care. All that need to be established is
that the claimant refused to take reasonable care for his
safety.
1
The maxim means a Petitioner who comes into court founding his cause of action on an illegality, will
not het any assistance from the court.
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1.7
Judicial Authority
When a judge acts within jurisdiction, no action lies for acts done or
words spoken by him in the exercise of his judicial office, even though
his motive is malicious and the acts or words are not done or spoken in
bad faith.
1.8
Mistake
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