General Defences in tort

In this article, we are providing you a detailed explanation of general defences in the law of tort which will help you to understand the general defences in law of tort

For taking action against other person there must be a cause of action. In the case of tort also a person to whom wrong has been done can take action. But there are certain defences available for suit under the law of torts. Some of these defences resemble the general exceptions of the Indian Penal Code. These acts are of such a nature that can be justified by law & hence taken as defences in an action in tort. There are fifteen general defences in the law of torts.

 Defences to An Action In Tort 

B) General Defences in Tort

1) Act of State – 

An act done under the authority of the state or in the exercise of sovereign power cannot be a tort. In English Law it originates from the maxim THE KING CAN DO NO WRONG nor he can authorise any wrong. In India, the same principle applies to the acts done under the authority of the state. However there are some exceptions in India in which this defence cannot be taken.

★Exceptions – 

1) Cases where the govt. has got benefit from such tort from its servants.

2) obligation imposed by statute

3) Trespass to immovable property.

2) Judicial Acts – 

This is an Important general Defences in Tort.

If the act did was a judicial act in judicial capacity then no suit will lie against the person acting in such judicial capacity. This defence particularly protects Judges acting in judicial capacity & extends also to Members of Naval and Military Courts-Martial.

In India, this principle is implied in the Judicial Officers Protection Act, 1850, and in the Judges (Protection) Act, 1985. This principle can found in other procedural laws viz. IPC, CrPC & CPC respectively. 

3) Quasi-Judicial Acts – 

The Quasi-Judicial bodies are those bodies which are established under a statute that gives powers to perform its functions effectively. For performing such functions the powers given are also in resemblance with judicial powers for the purposes under the statute. Such bodies, for instance, University, Tribunals, Colleges, Societies, which exercise quasi-judicial authority in their management & administration. The quasi-judicial bodies exercising such powers are protected from civil liability but only if they act in consonance with:-

 i) natural justice principles,

ii) statutory provisions and rules (under which these bodies are established.)

4) Executive Acts – 

 In India executive officers generally didn’t have any protection except any special Act by the legislature. But it can be observed that the acts of these officers generally falls within the acts of the state hence are protected under the defence act of state. As discussed above Judges (Protection)Act protects officers of Court. As also the state police are protected by their respective Acts of different states.

5) Acts have done under Parental or Quasi Parental Authority-

For the development of the child or for correcting anything bad in a child involves any punishment by parents of that child which is “ reasonable” for that known as parental authority.

Quasi parental authority is the authority vested in teachers & administration of the particular school, college, or private tutoring, any sports club or other institution related with the overall development of children. Any “ reasonable” act for the betterment of children done in such quasi parental authority cannot be questioned.

6) Authorities of necessity –

Any act done by the captain of a ship, pilot of an aeroplane, or similar masters in their duties for saving the life of crew and passengers or any other such necessity is called as authorities of necessity. Such acts done in necessity under authority & responsibility of all cannot be questioned & taken action against for any kind of remedy.

7) Necessity – 

This defence is based on the maxim Salus Populi est suprema lex which means the welfare of the people is the supreme law. The act done by any person for preventing greater damage to public or community in necessity is a defence in itself. e.g. for preventing fire in houses so close to each other pulling down any of such house for purpose of preventing fire & from a larger extent of damage is not actionable. The act of necessity as an exception can also be found under the Indian Penal Code under the Chapter of General Exceptions.

8) Acts under statutory authority –

In any act done under statutory authority, no action is maintainable except the one provided by the statute itself.

9) Leave & Licence –

This defence is based on the maxim Volenti Non-Fit Injuria which means a person who consents expressly or impliedly for such an act cannot complain of that act. When an individual has consented for any act to be done then such individual cannot take action to enforce the same right against that person doing any such act. e.g. the doctor cutting a leg or hand of a patient for prevention of any disease with the consent of his patient cannot be called in question by that patient for such act of doctor. 

However, this maxim has some exceptions as follows:-

i) act of negligence

ii) if consent is not taken

iii) action arising from breach of statutory duty

10) Act of God – 

The accident or any act/thing happened which is inevitable and could not have been prevented even with the all due care, skill, caution exercised by a human is called an Act of God.

e.g. the floods, or earthquake or heavy rains or anything happened because of forces of nature resulting in a calamity.

11) Exercise of rights –

The exercise of rights which are common/ordinary for a lawful purpose in a lawful manner cannot be called as a wrong even if it causes any damage in the sense of damnum sine injuria which means damage without infringement of any legal right in which no action lies.

For instance, competition in trade & business. etc.

12) Private defence –

Every person even irrespective of any statute naturally exercises the private defence against any act endangering his body or life or property. Any act done in private defence is justifiable. 

13) The mistake of Fact –

Under the law of torts, if the motive is an essential ingredient of a tort/wrongful act done, the mistake of fact can be taken as a defence.

14) Acts causing slight harm –

This defence is based on the maxim “De minimis non-curat lex” which means “The law does not concern itself with trifles”. It refers to the acts which cause minimal trifle of which ordinary man of normal prudence, temper will not complain.

15) Plaintiff as wrongdoer –

This defence is based on the maxim “ Ex turpi causa non-oritur actio ” which means no action arises from an immoral cause. 

In other words, This defense is taken when the plaintiff is a wrongdoer and the act of himself is unlawful. For instance, a person cannot claim damages in any act of accident where he is negligent and careless in that accident.

These are the 15 General Defences in Tort.

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