Justifications of ToABCrt

Law Of Tort
1
GENERAL DEFENCES (JUSTIFICATIONS / EXCEPTIONS / EXCUSES /
EXEMPTION) IN TORT
How to secure oneself, a concept.
Similarly justifications are safeguards against tortuous liability.
Director (edu) Chiniot Law College
Muhammad Riaz
MA Pol sc LLM
Legaladvisor84@gmail.com
Law Of Tort
2
GENERAL DEFENCES/JUSTIFICATIONS IN TORT
1.
2.
3.
4.
Introduction
Purpose of justifications
Scope of justifications
What are general defences / justifications in torts
(A) Volenti Non Fit Injuria (leave and Licence)
(I)
General Rule
(II)
Explanation
(III)
Examples
(IV)
Scope
(V)
Exceptions
Unlawful act
Statutory duty
Rescue cases
Negligence
Defendants duty to prevent
(VI)
Case law
(B) Acts of State
(I)
Technical Implication
(II)
Explanation
(III)
Scope
(IV)
Case law
(C) Judicial Acts
(I)
(II)
Explanation
(III)
Scope
(D) Quasi judicial Acts
(I)
(II)
Explanation
(III)
Scope
(E) Executive Acts
(I)
(II)
Explanation
(III)
Scope
(F) Parental and quasi-parental Authority
(I)
(II)
Explanation
(III)
Scope
(G) Damage incident to authorized Acts
(I) Explanation
(II) Scope
(IV)
Example
(H) Exercise of common Rights
(I) Technical Implication
(II) Explanation
(III) Case law
(I) Authorities of Necessity
(I) Technical Implication
(II) Explanation
(III) Case law
(J) Vis major (act of God)
Muhammad Riaz
MA Pol sc LLM
Law Of Tort
5.
(I)
(II)
Scope
(III)
Case law
(K) Inevitable accident
(I)
(II)
Explanation
(III)
Scope
(IV)
Exception
(V)
Case law
(L) Self Defence
(I)
(II)
Explanation
(III)
Examples
(IV)
Scope
(M) Mistake
(I)
(II)
Explanation
(III)
Scope
(N) Contributory Negligence
(I)
(II)
Explanation
(III)
Scope
(IV)
Exception
(O) Statutory Authority
(I)
(II)
Explanation
(III)
Scope
(IV)
Case laws
(P) Novus Actus Interveniens
(I)
(II)
Explanation
(III)
Exception
Summary
Muhammad Riaz
MA Pol sc LLM
Law Of Tort
4
GENERAL DEFENCES/JUSTIFICATIONS
DEFEN
IN TORT
1. Introduction
There are certain justifications which when present will prevent an act from being
regarded as wrongful. Generally, a plaintiff has to prove his case in a court of law
and if he does so successfully, judgment is passed against the defendant. The
defendant on the other hand may defend the case against himself successfully with
justification,, thus making the plaintiff s action fail. There are some general
defences which may be taken to eescape from tortuous liability.
2. Purpose of justifications
The purpose of justification is to limit the tortuous liabilities under exceptional
cases.
3. Scope of justifications
Justifications safeguard the torious liabilities for bonafide intention. It does not
extend to malafide intent.
4. What are general defences / justifications in torts
(A) Volenti Non Fit Injuria (leave and Licence)
(I)
General role
The general rule is that a person cannot complain for harm done to him
if he consented to run the risk of it.
Muhammad Riaz
MA Pol sc LLM
Law Of Tort
5
(II)
(III)
(IV)
(V)
(VI)
Explanation
Where a defendant pleads this defence, he is in fact saying that the
plaintiff consented to the act and he was aware of the nature and extent
of the risk involved, which he is now complaining of.
Examples
A boxer, foot baler, cricketer, etc cannot seek remedy where they are
injured while in the game to which they consented to be involved.
Scope
The maxim extends to the act which plaintiff consented. And the
consent can not be given to an unlawful act.
Exceptions
There are however some limitations to the application of the maxim
volenti non fit injuria.
Unlawful act
No unlawful act can be legalized by consent, leave or license.
Statutory duty
The maxim has no validity against an action based on breach of
statutory duty.
Rescue cases
The maxim does not apply in rescue cases such as where the
plaintiff has, under an exigency, caused by the defendants
deliberate wrongful misconduct, faced a risk, to rescue another
from imminent danger, whether the person endangered is one to
whom he owes a duty of protection as in a member of his
family, or is a mere stranger to whom he owes no such special
duty.
Negligence
The maxim does not apply to cases of negligence.
Defendants duty to prevent
This maxim does not apply where the act of the plaintiff relied
upon the very act, which the defendant was under a duty to
prevent.
Case Law
Khimji Vs Tanga Mombasa Transport Co. Ltd (1962)
Facts
The plaintiffs were the personal representatives of a deceased
who met his death while traveling as a passenger in the
defendant's bus. The bus reached a place where road was
flooded and it was risky to cross. The driver was reluctant to
continue the journey but some of the passengers, including the
deceased, insisted that the journey should be continued. The
driver eventually continued with some of the passengers,
Muhammad Riaz
MA Pol sc LLM
Law Of Tort
6
including the deceased. The bus got drowned together with all
the passengers.
Decision of the court
On the base of this maxim, it was held that the plaintiff's action
against the defendants could not be maintained.
(B) Act of the State
(I)
(II)
(III)
(IV)
Technical implication
An act done by the ruler of an independent State in his political and
sovereign capacity is called act of state.
Explanation
This justification safeguards acts of the state against tortuous liability if
the act being complained of is done in sovereign capacity.
Scope
The justification applies on official matters in sovereign capacity. It
does not extend to the acts done in private capacity, even if done by the
ruler of a state.
Case Law
Buron Vs Denman (1848)
Facts
This was an action against Captain Denman, a captain in the
navy, for burning certain barracoons (slave warehouse) on the
West Coast of Africa, and releasing the slaves contained in
them. His conduct in so doing was approved by a letter written
by Mr. Stephen, then Under Secretary of State for the Colonies,
by the direction of Lord John Russell, then Secretary of State.
It was held that the owner of the slaves could recover no
damages for his loss, as it was the act of state.
Muhammad Riaz
MA Pol sc LLM
Law Of Tort
7
(C) Judicial Acts
(I)
(II)
(III)
Technical implication
No action will lie against a judge for any acts done or words spoken in
his judicial capacity in a court of justice.
Explanation
It is founded on the necessity of judges being independent in the
exercise of their office. In order to establish the exemption as regards
proceedings in an inferior court, the judge must show that at the time
of the alleged wrong-doing some matter was before him in which he
had jurisdiction and the act complained of must be of a kind which he
had power to do as judge.
There are cases in which by statute an action does or did lie against a
judge for misconduct in his office, such as, if he refuses to grant a writ
of habeas corpus in vacation time.
Scope
The exemption is not confined to judges of superior courts. But the
justification extends to the courts of any jurisdiction whether ordinary
civil tribunals or military courts.
(D) Quasi judicial Acts
Muhammad Riaz
MA Pol sc LLM
Law Of Tort
8
(I)
(II)
(III)
No action will lie against a quasi judicial authority, such as against an
arbitrator, for any act done or words spoken during exercise of such
authority.
Explanation
The persons exercising these powers are protected from civil liability if
they observe the rules of natural justice, and also the particular
statutory or conventional rules, if any, which may prescribe their
course of action. If the conditions of natural justice be satisfied, a court
of justice will not interfere, not even if it thinks the decision was in fact
wrong. If the rules of natural justice are not adhered to, the act
complained of will be declared void.
Scope
The exemption extends to all quasi judicial authorities if the rules of
justice are not violated.
(E) Executive Acts
(I)
(II)
(III)
As to executive acts of public officers, he is protected by the law while
executing any sentence or process of law, or by the necessary use of
force for preserving the peace.
Explanation
If this would not be the rule, it is evident that the law could not be
enforced at all. If a public officer goes beyond his authority such
officer is not protected by this justification. Such as using needless
violence to secure a prisoner; but he is protected if he has only acted in
a manner in itself reasonable, and in execution of a warrant or order
which on the face of it, he was bound to obey. A constable or officer
acting under a justices warrant is protected.
Scope
It is observed that private persons are in many cases entitled, and in
some bound, to give aid and assistance, or to act by themselves, in
Muhammad Riaz
MA Pol sc LLM
Law Of Tort
9
executing the law; and in so doing they are similarly protected as any
public officer.
quasi
Authority
(F) Parental and quasi-parental
(I)
(II)
(III)
Imp
Parents, guardian and teachers etc are protected by law if they use
reasonable force for the betterment of their child or ward.
Explanation
There are also several kinds of authority in the way of force or restraint
which are necessities of the society. And persons exercising such
authority are protected in exercise thereof, if they act in good faith and
in a reasonable and moderate manner. Parental authority (whether in
the hands of a father or guardian, or of a person to whom it is
delegated, ssuch
uch as a school teacher) is the most obvious and universal
instance. Persons,
Persons having the lawful custody of a lunatic, and those
acting by their direction, are justified in using such reasonable and
moderate restraint as is necessary to prevent the lunatic from doing
doing.
Scope
The exemption extends to parental as well as quasi parental authority if
same is exercise for the well being of the person under authority.
(G) Damage incident to authorized Acts
Muhammad Riaz
MA Pol sc LLM
Law Of Tort
10
(I)
(II)
(III)
Explanation
Damage from execution of authorized work is justified by law. A man
cannot be held a wrong-doer in a court of law for acting in conformity
with the direction or allowance of the supreme legal power in the State.
In other words no action will lie for doing that which the Legislature
has authorized, if it be done without negligence.
Scope
Apart from the question of statutory compensation, it is settled that no
action can be maintained for loss which is the necessary consequence
of an authorized thing being done in an authorized manner.
Example
A person dwelling near a railway constructed under the authority of
Parliament for the purpose of being worked by steam engine cannot
complain of the noise and vibration caused by trains passing and re
passing in the ordinary course of traffic.
(H) Exercise of common Rights
(I)
(II)
If some one is entitle to exercise a common right and in such exercise
if some one else, having same right, suffers the loss then it is justified
by the law. Maxim damno sine injuria also elaborates the same
principle.
Explanation
It is impossible to carry on the common affairs of life without doing
various things which are more or less likely to cause loss or
inconvenience to others, or even which obviously tend that way; and
this in such a manner that their tendency cannot be remedied by any
means short of not acting at all. Competition in business is the most
obvious example. If A and B are booksellers in the same street, each of
them must to some extent diminish the profits of the other.
Muhammad Riaz
MA Pol sc LLM
Law Of Tort
11
(III)
Case Laws
The case of Gloucester Grammar School
Facts
The action was trespass by two masters of the Grammar School
of Gloucester against one who had set up a school in the same
town, whereby the plaintiffs, had suffered substantial loss.
Decision
It was held that such an action could not be maintained.
(I) Authorities of necessity
(I)
(II)
(III)
It exists in every system of law, acts done of necessity to avoid a
greater harm, and on that ground justified.
Explanation
Pulling down houses to stop a fire, or otherwise sacrificing property, to
save a ship or the lives of those on board, are the regular examples.
The destruction of property under such conditions of danger is
justifiable.
It has never been supposed to be even technically a trespass if any one
throws water on his neighbours goods to save them from fire, or
seeing a house on fire, enters for help. Nor is it an assault for the first
passer-by to pick up a man rendered insensible by an accident, or for a
competent surgeon, if he perceives that an operation ought to be
performed to save the mans life, to perform it without waiting for him
to recover consciousness and give his consent.
Case Laws
Cope Vs Sharpe (1912)
Facts
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
Muhammad Riaz
MA Pol sc LLM
Law Of Tort
12
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.
Decision
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.
Esso Petroleum Ltd Vs Southport Corporation (1956)
It was held that the safety of human beings belongs to a
different scale of value from the safety of property. These two
are beyond comparison and the necessity for saving life has all
times been considered, as a proper ground for inflicting such
damage as may be necessary upon another's property.
(J) Vis major (act of God)
Muhammad Riaz
MA Pol sc LLM
Law Of Tort
13
(I)
This is an inevitable accident caused by natural forces beyond the
control of human beings e.g. earthquake, floods, thunderstorm, etc.
(II)
Scope
(Ryde Vs Bushnell (1967)
It was observed, "Nothing can be said to be an act of God unless it is
an occurrence due to exclusively natural causes of so extraordinary a
nature that it could not reasonably have been foreseen and the result
avoided.
(III) Case Laws
Nichols Vs Marshland (1876)
Facts
In this case the defendant had a number of artificial lakes on his
land. Unprecedented rain such as 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 away by act
of God and the defendant was not liable.
(K) Inevitable accident
Muhammad Riaz
MA Pol sc LLM
Law Of Tort
14
(I)
(II)
(III)
(IV)
(V)
Technical Implication This means an accident, which cannot be

prevented by the exercise of ordinary care, caution or skill of an
ordinary man.
Explanation
It occurs where there is no negligence on the part of defendant because
the law of torts is based on the fault principle; an injury arising out of
an inevitable accident is not actionable in tort.
Scope
It does not extend on negligence cases. It justifies the defendant if he
uses reasonable care and attention.
Exception
Inevitable accident is not a defense in strict liability.
Case Laws
Stanley Vs Powell (1891)
Facts
The plaintiff was employed to carry cartridge for a shooting
party when they had gone pheasant-shooting. A member of the
party fired at a distance but the bullet, after hitting a tree,
rebounded into the plaintiff's eye.
Decision
It was held that the defendant was not liable in the light of the
circumstance of inevitable accident.
Fardon Vs Harcourt-Rivington,(1932)
Decision
It was observed, "People must guard against reasonable
probabilities, but they are not under duty to guard against
fantastic possibilities".
(L) Self Defence
Muhammad Riaz
MA Pol sc LLM
Law Of Tort
15
(I)
(II)
(III)
(IV)
(M)
Everyone has a right to defend his person, property and family from
unlawful harm with a reasonable force.
Explanation
A person who is attacked does not owe his attacker a duty to escape.
Everyone whose life is threatened is entitled to defend himself and
may use force in doing so.
Examples
An occupier of property may defend it where his right or
interest therein is wrongfully interfered with.
A trespasser may be lawfully ejected using reasonable force.
. It is sound to take reasonable steps to protect property e.g. by
keeping fierce dog, broken glass on a boundary wall etc
Scope The force used must be reasonable and proportionate to that of
the attacker. Normally, no verbal provocation can justify a blow.
Mistake
Muhammad Riaz
MA Pol sc LLM
Law Of Tort
16
(I)
(II)
(III)
Mistake of fact may be relevant as a defence to any tort in some
exceptional cases. Its application is very limited.
Explanation
The general rule is that a mistake is no defence in tort, though it is a
mistake of law or of fact. Mistake of fact, however may be relevant as
a defence to any tort in some exceptional circumstances e.g. malicious
prosecution, false imprisonment and deceit. Thus where a police
officer arrests a person about to commit a crime but the person arrested
turns out to be innocent the police officer is not liable.
Scope
Mistake of law has never been an excuse so in tort cases only mistake
of fact is an excuse but in exceptional cases. Mistake of fact, cannot be
a defence in actions for defamation.
(N) Contributory negligence
(I)
(II)
(III)
(IV)
It implies if the plaintiff was also a party to a tort of negligence then
the defendant would not exclusively be blamed for compensation.
Explanation
The defendant may rely upon this defence if the plaintiff is also to be
blamed for his suffering. 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.
Scope This defence does not absolve the defendant from liability. It
merely apportions compensation of damages between the parties who
contributed to the loss.
Exception
This defence is not available if the plaintiff is a child of tender age.
Muhammad Riaz
MA Pol sc LLM
Law Of Tort
17
(O) Statutory Authority
(I)
(II)
(III)
(IV)
When the commission of what would otherwise be a tort, is authorized
by a statute the injured person can not claim remedy, unless so far as
the legislature has thought it proper to provide compensation.
Explanation
The powers conferred by the legislature should be exercised with
judgment and caution so that no unnecessary damage is done, the
person must do so in good faith and must not exceed the powers
granted by the statute otherwise he will be liable.
Scope
The statutory authority extends not merely to the act authorized by the
statute but to all inevitable consequences of that act.
Case Laws
Vaugham Vs Taffvale Railway Co. (1860)
Facts
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.
Decision
It was held that the railway company was not liable. It had
taken all known care to prevent emission of sparks.
(P) Novus Actus Interveniens
Muhammad Riaz
MA Pol sc LLM
Law Of Tort
18
(I)
(II)
(III)
Technical Implication.
It means 'a new intervening act'. The word 'new' is used in the sense
that it was not the accused's act. So he may not be responsible.
Explanation
This is when a chain of events results from a tort so that the loss
suffered is not within the scope of those that would naturally occur
from the first tort. A chain of causation is sometimes referred to when
the defendant triggers a series of events involving others who may also
contribute to the harm or injury of the victim. The question then arises
whether the original perpetrator should be responsible for the eventual
outcome.
A break in the chain of causation means that when this occurs the
courts interpret this to mean that the accuseds conduct was not the
cause of the harm or injury. This is unusual but when it does occur it
will result in the accused being acquitted. A break in the chain of
causation arises where there is a new intervening act or novus actus
interveniens.
Exception
This maxim does not become an excuse if:
An act done in the agony of the moment created by the
defendants tort. For example if someone throws a lighted
firework into a crowded market place. Several people will
throw the firework from their vicinity until it explodes on
anothers face. Scott Vs Shepherd (1773)
Where the intervening act is a rescue.
5. Summary
Defences as explained above annul the tortuous liabilities. Though technically all
ingredients of torts may be there but the justifications, if available, safeguard the
defendant from liabilities. These justifications are safeguard against liabilities only
if the act so done was with bonafide intent and by adopting reasonable care.
Muhammad Riaz
MA Pol sc LLM

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Law Of Tort

Similarly justifications are safeguards against tortuous liability.

Director (edu) Chiniot Law College

Director (edu) Chiniot Law College

Director (edu) Chiniot Law College

(A) Volenti Non Fit Injuria (leave and Licence)

Director (edu) Chiniot Law College

Director (edu) Chiniot Law College

Director (edu) Chiniot Law College

(D) Quasi judicial Acts

Director (edu) Chiniot Law College

(E) Executive Acts

Director (edu) Chiniot Law College

(G) Damage incident to authorized Acts

Director (edu) Chiniot Law College

(H) Exercise of common Rights

Director (edu) Chiniot Law College

(I) Authorities of necessity

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Director (edu) Chiniot Law College

Director (edu) Chiniot Law College

Technical Implication This means an accident, which cannot be

(L) Self Defence

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Director (edu) Chiniot Law College

(N) Contributory negligence

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(P) Novus Actus Interveniens

Director (edu) Chiniot Law College

Director (edu) Chiniot Law College

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