General Defences I
Chapter Eighteen
Syllabus topic 1.6, "General Defenses and Discharge of Torts"
Pages 79 to 82 of 434
In one line
A general defence is a reason why the defendant is not liable even though the plaintiff has proved everything his tort requires.
In the wording a student can write in an exam: the general defences available in an action for tort are volenti non fit injuria, the plaintiff being himself the wrongdoer, inevitable accident, act of God, private defence, necessity, mistake, statutory authority, judicial and quasi-judicial acts, and parental and quasi-parental authority; each is pleaded and proved by the defendant, and each denies liability rather than merely reducing damages.
What makes a defence "general"
A specific defence belongs to one tort: truth is a defence to defamation and to nothing else; prescription is a defence to nuisance and to nothing else.
A general defence may be raised in an action for any tort, subject to its own conditions. That is why they are taught together in Module I rather than under each wrong.
The burden of pleading and proving a general defence lies on the defendant. The plaintiff proves his tort; the defendant then answers it.
1. Volenti non fit injuria
Taught in full in chapter [Volenti Non Fit Injuria]. In summary: knowledge of the nature and extent of the risk, plus free and voluntary acceptance of it, is a complete defence; knowledge alone is not; and the defence does not run against a rescuer, against an unlawful act, or against a statutory duty.
2. The plaintiff is himself the wrongdoer
The old maxim is ex turpi causa non oritur actio, no action arises from a base cause. A plaintiff cannot found a claim on his own illegal act.
The rule is narrower than it looks and a student who states it broadly is wrong. The question is not whether the plaintiff was doing something unlawful when he was hurt, but whether his claim requires him to rely on his own illegality. A trespasser who is shot by the occupier recovers, because his trespass does not license the shooting; a burglar injured by a defective staircase may fail, because the only reason he was on the stairs was the burglary.
So the working test is connection, not coincidence. The unlawful act must be so bound up with the claim that the court cannot give relief without appearing to reward it.
3. Inevitable accident
An inevitable accident is one which could not have been avoided by the exercise of ordinary care, caution and skill by the defendant. It is not an accident that nobody could conceivably have avoided; it is one that this defendant, taking reasonable care, could not have prevented.
The defence is really a denial of negligence, and its practical importance has shrunk for two reasons. Where liability depends on fault, the plaintiff must prove fault anyway, so the defence adds little. And where liability is strict or absolute, inevitability is no answer at all: the whole point of the rule in Rylands v. Fletcher is that the defendant is liable although he was careful, and M.C. Mehta v. Union of India, AIR 1987 SC 1086, removed even the exceptions for hazardous enterprises.
General Defences I
4. Act of God
An act of God, or vis major, is an operation of natural forces so unexpected that no human foresight or skill could reasonably be expected to anticipate it. Two elements are required: the event must be due to natural causes without human intervention, and it must be so extraordinary that it could not reasonably have been foreseen and guarded against.
Facts. Ramalinga Nadar v. Narayana Reddiar, AIR 1971 Ker 197, decided on 10 December 1970. The plaintiff booked eighteen bags of green gram with a lorry service for carriage from Kottar to Quilon. On the way the lorry was waylaid by a procession taken out as part of a food agitation and the mob robbed the goods. There was no negligence on the carrier's part and he could not have prevented the loss.
Held. The carrier was liable. A common carrier is not a mere bailee but an insurer of the goods, answerable for their loss even without negligence, the only exceptions being act of God and the King's enemies. The destructive acts of an unruly mob are not an act of God: the expression is confined to inevitable accidents occasioned by the elementary forces of nature unconnected with the agency of man, and it would be incongruous to apply it to an accident originating wholly or partly in human agency.
Why it matters here. It fixes the boundary of the defence precisely where students blur it. Riots, mobs, wars and sabotage are not acts of God however unforeseeable they are, because a human being caused them. Storm, flood, earthquake, lightning and extraordinary rainfall are the material of the defence.
And even a natural event is not an act of God if it was foreseeable. Ordinary monsoon rain in Mumbai is not an act of God; a cloudburst without precedent may be.
A worked example
A wall of Rekha's godown collapses in a storm and damages Suresh's shop next door.
Ask first what the storm was. If it was rainfall of an intensity never before recorded in that district, the defence of act of God is open, because the cause was purely natural and no reasonable foresight would have provided against it.
Ask next what the wall was. If the wall was already cracked and Rekha knew it, the storm is not the cause the law looks at: a wall that would have stood had it been maintained falls because it was not maintained, and the defence fails. This is where Municipal Corporation of Delhi v. Subhagwanti, AIR 1966 SC 1750, bites, because a structure eighty years old, never tested, that falls is evidence of negligence in itself.
General Defences I
Change the cause. If the wall was pulled down by a mob during a riot, there is no act of God at all, on the reasoning of Ramalinga Nadar: the cause was human. Rekha may still say the collapse was an inevitable accident so far as she is concerned, and whether that succeeds depends on whether ordinary care on her part could have prevented it.
Distinctions that carry marks
| Inevitable accident | Act of God | |
|---|---|---|
| Cause | May be human or natural | Natural forces only, without human agency |
| Test | Could not be avoided by ordinary care, caution and skill | So extraordinary that no reasonable foresight could provide against it |
| Available against strict liability? | No | Yes, it is one of the recognised exceptions to Rylands v. Fletcher |
| Available against absolute liability? | No | No |
What it does NOT mean
Act of God does not mean any disaster. A riot, a war or an act of sabotage is not an act of God, because a human being caused it, as Ramalinga Nadar holds.
Inevitable accident does not mean unavoidable by anybody. It means unavoidable by this defendant exercising ordinary care.
Neither defence answers absolute liability. M.C. Mehta v. Union of India, AIR 1987 SC 1086, holds that an enterprise carrying on a hazardous activity cannot rely on any of the exceptions available under Rylands v. Fletcher.
"The plaintiff was doing something illegal" is not by itself a defence. The illegality must be so connected with the claim that relief cannot be given without relying on it.
Quick revision
- A general defence may be raised in any tort; the defendant pleads and proves it.
- Volenti non fit injuria: knowledge plus free consent; complete defence; not against a rescuer or a statutory duty.
- Ex turpi causa non oritur actio: the plaintiff's own illegality defeats him only where the claim depends on it.
- Inevitable accident: not avoidable by ordinary care, caution and skill; it is really a denial of negligence and is no answer to strict or absolute liability.
- Act of God: natural forces alone, and so extraordinary that no reasonable foresight could provide against it.
- Ramalinga Nadar v. Narayana Reddiar, AIR 1971 Ker 197: a mob is not an act of God; a common carrier is an insurer of the goods.
- Act of God is an exception to strict liability under Rylands v. Fletcher but not to absolute liability under M.C. Mehta.
General Defences I
Test yourself
1. What are the general defences in tort? They are ten: volenti non fit injuria, the plaintiff being himself a wrongdoer, inevitable accident, act of God, private defence, necessity, mistake, statutory authority, judicial and quasi-judicial acts, and parental or quasi-parental authority. Each may be raised in an action for any tort, unlike a specific defence such as truth in defamation or prescription in nuisance, which belongs to a single wrong. The burden of pleading and proving a general defence lies on the defendant, and each of them denies liability altogether rather than merely reducing the damages, which is what distinguishes them from contributory negligence.
2. Explain the defence of act of God with a decided case. An act of God, or vis major, is an operation of natural forces so unexpected that no human foresight or skill could reasonably be expected to anticipate it. Two things are required: the cause must be natural and unconnected with human agency, and the event must be so extraordinary that it could not reasonably have been foreseen and provided against. In Ramalinga Nadar v. Narayana Reddiar, AIR 1971 Ker 197, goods entrusted to a lorry service were robbed by an unruly mob during a food agitation, and the carrier pleaded that the loss was beyond his control. The Kerala High Court held him liable, since a common carrier is an insurer of the goods and only act of God and the King's enemies excuse him, and held that the acts of a mob are not an act of God because the expression covers only inevitable accidents caused by the elementary forces of nature without the agency of man.
3. Distinguish inevitable accident from act of God. Both assert that the harm could not have been prevented, but they differ in cause and in strictness. An inevitable accident may have a human or a natural cause, and the test is whether the defendant, using ordinary care, caution and skill, could have avoided it; it is in substance a denial of negligence. An act of God must be caused by natural forces alone without human intervention, and must be so extraordinary that no reasonable foresight could have provided against it. The practical difference appears in strict liability: act of God is one of the recognised exceptions to the rule in Rylands v. Fletcher, while inevitable accident is no answer to it at all, and neither answers absolute liability under M.C. Mehta v. Union of India, AIR 1987 SC 1086.
4. "A plaintiff who was breaking the law when he was injured cannot recover." Comment. The statement is too wide. The maxim ex turpi causa non oritur actio prevents a plaintiff from founding a claim on his own illegal act, but the test is whether the claim depends on the illegality, not whether the plaintiff happened to be acting unlawfully at the time. A trespasser who is deliberately shot by an occupier recovers, because his trespass gives no licence to shoot him; a burglar injured by a defective staircase inside the house he has broken into may fail, because his presence there rests entirely on the burglary. The court asks whether relief can be given without appearing to reward the illegality.
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