GENERAL EXCEPTIONS
(JUSTIFICATION OF TORTS)
We have understood, what tort is and what are its elements. Now, we come to its general exceptions, that is, the grounds on which a person committing a wrongful act is absolved from his liability to make good or compensate for the loss caused to the other. These are important because when one complains of a wrongful act, the other may deny the commission of the act or plead that his case his covered under exceptions and thus cannot be held liable. They are as follows –
1. Leave & License – Volenti non fit injuria
Legally nothing is an injury to which a person consents. In other words, where the sufferer is willing, no injury is done. A man cannot complain of harm to the chances of which he has exposed himself with knowledge and of his free will. The application of the maxim is not dependent upon any valid contract but upon the competence of the decision making capacity of the person at the time the consent was given.
A simple illustration of this defence is the consent that a sportsperson impliedly gives to sustain an injury during the game play so long it is played fairly. So, a cricket fielder sustaining injury while trying to catch the ball is the result of the risk he understood right at the onset of the game. And, as a result, the batman hitting the ball is not liable for the same.
But where, in a football game, a player’s foul play injures another and causes injury such as fracture, the first player will be liable for tort, as the consent of the injured player was limited to fair play and not extend to foul play or reckless disregard of player’s safety.
It is worth noting that this consent need not be taken down in writing, it which case it would be contractual. But the consent is implied from the actions of the person. Now, to understand the extent of consent, one need not go into the nitty-gritty of the law. But the test of common knowledge and experience is sufficient. So where, a person challenged an old man to fight and gave a severe blow to his eye, it cannot be said that the old man had given consent to such an injury.
Similarly, if there is a statutory duty (duty laid down by statute or legislation), the above maxim will have no application in case of breach of the same.
Also, the maxim does not apply where plaintiff has under an exigency caused by defendant’s wrongful misconduct, consciously and deliberately faced a risk, even of death, to rescue another from imminent danger of personal injury or death, whether the person endangered is one to whom he owes a duty of protection, as a member of his family, or is a mere stranger to whom he owes no such specific duty. The rescuer will not be deprived of his remedy merely because the risk which he runs is not the same as that run by the person whom he rescues. But where there is no need to take any risk, the person suffering the harm cannot recover damages.
2. Necessity
Necessity knows no law. An act which must necessarily be done does not entail liability.
A necessity can be Public Necessity which is based on maxim – salus populi suprema lex, that is welfare of the people is the supreme law. Examples of public necessity are pulling down of houses or cutting down of trees to prevent spreading of fire, Goods thrown overboard to save the ship or its passengers.
It is only in cases of existing, immediate and over-whelming public necessity that any such right exists. This defence is not available to a defendant whose negligence has created or contributed to the necessity.
Private necessity may also give rise to a defence of necessity.
Third group of cases are concerned with action taken as a matter of necessity to assist another person without his consent. Say, for example, A is walking on the road, when a car is about to hit him. B, seeing this, drags A towards side and rescues him from the car collision, but in doing so tears A’s shirt. Now, although B’s action has damaged A’s shirt but B is not liable to compensate A for the shirt, as his action was necessitated by the on-coming car. Similarly, medical treatment of an unconscious person even without his consent gives rise to no liability as same is under compelling circumstances.
3. Inevitable Accident
An “Inevitable Accident” or “unavoidable accident” is that which could not possibly be prevented by the exercise of ordinary care, caution and skill. It is based on rule of prudence that a person must guard against reasonable probabilities but they are not bound to guard against remote or fantastic possibilities. The term “accident” presupposes their origin in whole or part in human agency.
To understand, one can take a simple illustration. Say, two dogs belonging to two individuals are engaged in fighting when one of them uses a stick to separate them and accidentally hits the other individual causing him severe injury. The first individual, since could not have foreseen such a casualty, cannot be held liable towards the second.
Similarly, when a person A fires a bullet which hits a series of object and then ultimately injures a person B standing altogether in a different location, A may not be held liable. But it will be a question of fact whether A employed necessary care and caution which the situation demanded. So, if you shoot an arrow on the apple placed on someone’s head, be ready to be held accountable, as the running the risk amounts to recklessness and is well foreseen.
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4. Act of God or vis major
Act of God is similar to inevitable accidents the only difference id that the act of God are those that are occasioned by the elementary forces of Nature unconnected with the agency of man.
Act of God is defined as such a direct violent, sudden and irresistible act of nature as could not, by any amount of ability, have been foreseen, or if foreseen, could not by any amount of Human care and skill have been resisted. For example, earthquake, storm, lightening, extraordinary rainfall, extraordinary high tide.
It is necessary that the phenomenon should be extraordinary. So if, a roof brick falls on a passerby’s head in ordinary rains of the region, this defence will not be available to the occupier of the house who has neglected his duty to keep up such repairs. Similarly, when a hotel room on a beach resort is flooded with water in ordinary tide, this defence is unavailable to the Hotel owner as the risk is foreseeable and the cause of damage is ordinary.
It is worth noting that it is not necessary that the natural phenomenon should be unique or occur for the first time. But it must be extraordinary regard being held to the general climatic and natural conditions of the place.
5. Plaintiff himself a wrong doer
Where the person seeking remedy under tort is himself the wrong doer, the defendant (person against whom legal action has been initiated) may put plaintiff’s wrong doing as defence. For example, A is driving his car negligently and thereby hits B who was carrying a briefcase. In the collision, B is startled and drops his case which breaks A’s car’s headlight. Now, since A is himself at fault, he cannot claim compensation from B for the said broken light.
This defence may be a total defence or a proportionate reduction in damages depending upon the facts of the case. But it must be understood that the plaintiff is not denied compensation unless some unlawful act or conduct on his own part is connected with the harm suffered by him as a part of the same transaction.
Take, for example, A trespasses B’s house by climbing his wall. In doing so, A’s trousers get torned. B will not be held liable for A’ trousers. But if B has placed spring guns in his gardens without notice, and the same fires injuring A, B will be held liable for the said injury. Nonetheless, B may also sue A for trespass.
6. Act of State
We already know that Law presupposes State and State is the machinery for Justice, that the law originates from the State’s desire and standard of Justice. Nonetheless, an act of State by itself cannot result in Injury.
Though with growth of Human Rights, the idea of State has undergone a lot of change and even the State does not have unlimited authority over its citizens. Particularly, in modern constitutional democracies, Constitutional Law sets out certain limitations over State’s authority. There is an arena of civil liberties that cannot be encroached upon by the State or its agencies. These are, what is referred to in Indian Constitution as, Fundamental Rights. These are basic rights necessary for human development and cannot be alienated or parted with.
But despite fundamental rights, there is a plethora of region where individual rights must give way to the state action derived from larger interest of the society. So, if in a riot, a Police Officer uses firearm well within his authority and somehow ends up injuring an innocent or his chattels, the State will come in to protect his wrong doing. Similarly, a Judge presiding over in a judicial proceedings cannot commit any wrong. Their actions are protected under law by way of immunity.
It is worth noting that presently State engages in a variety of activities which are essentially business. And the State or its corporations engaged in such business activities cannot claim this defence because while acting as such, they are acting similar to an ordinary citizen. It is only for the sovereign acts of state (such as Law and order, Justice administration, War) that this defence can be used.
7. Private Defence
Every person has a right to defend his own person, property, or possession against an unlawful harm. This may even be done for a wife or husband, or parent or child, a master or servant, and even for strangers in need out of empathy. But the act must be one of defence and not an offence in itself. The means adopted to protect oneself or one’s property must be reasonable i.e. proportionate to the threat and that the danger must be real and imminent.
8. Trifle Act or act causing slight harm
This defence is based on maxim ‘de minimis non curat lex’, that is, law does not take in account of trifles. Nothing is a wrong which a person of ordinary sense and temper would not complain. This has no application where there is injury to a legal right.
