• Lex Specialis

SPECIFIC DEFENCES, VOLENTI NON FIT INJURIA, & ACT OF GOD (VIS MAJOR)

- Anish Jandial


INTRODUCTION


Before we begin to assess the conditions in which a defence can be utilized in any tort case it is significant to comprehend what "defence" signifies. A defence is a plea advanced by the litigant against the cases of the offended party. At whatever point a body of evidence is brought against the defendant for the commission of a tort and all the basic elements of that wrong are available, the defendant would be held subject for the same. Indeed, even in such cases, the defendant can maintain a strategic distance from his obligation by taking the plea of the defences accessible under the law of torts. The defences available under law of tort are of two types:


VOLENTI-NON-FIT-INJURIA


Volenti Non Fit Injuria is one of many general defences available in the law of tort. According to it, the harm suffered by the plaintiff voluntarily does not constitute a legal injury and is not actionable. No man can enforce a right which he has voluntarily waived or abandoned. In the case of Smith v. Baker and sons, Lord Herschell stated that one who has been invited or assented to an act being done towards him cannot, when he suffers from it, complain of it as a wrong. The application of the maxim is dependent upon the competence of the decision-making capacity of the person at the time the consent was given.


  • The consent must be free

For the defence to be accessible, it is important to show that the plaintiff's consent to the act done by the litigant was free. On the off chance that the consent of the plaintiff has been acquired by extortion or under impulse or under some mixed up impression, such consent does


For the application of maxim volenti non fit injuria there is a need to prove two things first:

  1. The Plaintiff should have adequate knowledge of the risk involved.

  2. The plaintiff knowing the risk should have agreed to suffer the harm.


On the off chance that only first of these points is available i.e., there is just the information on the hazard, it is no defence in light of the fact that the maxim is volenti non fit injuria. Simply in light of the fact that the plaintiff is aware of the damage doesn't infer that he consents to endure it.


In the case of Bowater v. Rowley Regis Corporation, a cart driver was approached to drive a horse which to the information on the two was obligated to bolt. The driver was not prepared to take that horse out yet he did it since his master requested to do as such. The horse, at that point, bolted and the plaintiff endured wounds. Here, the plaintiff was qualified to recover.


ACT OF GOD (VIS MAJOR)


An act of God is a defense utilized in instances of torts when an occasion over which the defendant has no influence over happens and the harm is brought about by the powers of nature. In such cases, the defendant won't be held liable in tort law for such unintentional harm. Act of God or Vis Major or Force Majeure might be characterized as conditions which no human premonition can give against any of which human prudence will undoubtedly perceive the chance, and which when they do happen, in this way are cataclysms that don't include the obligation of paying for the outcomes that results from them. Act of God serves as a good defence under the law of torts and in the case of Rylands v. Fletcher, it has been recognized as a legitimate defense in the standard of 'Strict Liability'.


Essentials for defence of Act of God

  1. There must be working of natural force in the scenario.

  2. There must be extraordinary occurrences which cannot be reasonably anticipated.

  • Working of Natural forces

In Ramalinga Nadar v. Narayan Reddiar, the uncontrollable mob looted all the products being moved in the defendant's lorry. It can't be viewed as an Act of God and the defendant, as a typical bearer, will be made up for all the loss endured by him.


In Nichols v. Marsland, the defendant made an artificial lake on his property by gathering water from natural streams. Once there was remarkable rainfall, heaviest in human memory. The banks of the lake got decimated and washed away all the four extensions belonging to the plaintiff. The court held that the defendants were not liable as the same was due to the Act of God.

  • Occurrence must be extraordinary

Some extraordinary occurrence of natural forces is required to plead the defence under the law of torts.


In Kallu Lal v. Hemchand, the wall of a structure crumbled because of ordinary precipitation of about 2.66 inches. The occurrence brought about the death of the respondent's children. The court held that the defense of the Act of God can't be argued by the appellants for this situation as that much precipitation was typical and something remarkable is required to argue this defense. The appealing party was held liable.


SPECIFIC DEFENCES


These are those defences which are specific in nature. These defences are applied for the specific nature of torts and cannot be applied for any other tort falling outside such specified nature. For example Defence of truth can be used to escape from liability arising due to tort of defamation.

  1. Defences against Defamation

1.1 Justification by Truth


Truth is a flat out defense. On the off chance that the announcement made is bona fide, at that point it doesn't establish slander. The weight of proof is on the defendant who is guaranteeing the defense. For example, X says something in a meeting about Y enjoying betting and Y documents a suit against him. On the off chance that X can justify or prove it, at that point, Y's case will be dismissed. In Radheshyam Tiwari v. Eknath, the defendant couldn't prove the facts distributed by him and in this way was held subject to slander.


1.2 Fair and Bona fide Comment


Nothing is defamatory which is a reasonable remark in the matter of public interest. The defendant can avail of this defense when he has just offered a reasonable remark in a matter of public interest. This defense depends on public policy which gives each individual the option to remark and scrutinize with no malicious intention the work or activities of public offices, actors, creators and competitors just as those whose career depends on public consideration. Any reasonable and genuine opinion on a matter of public interest is likewise secured despite the fact that it isn't correct. There is no meaning of a matter of public interest.


1.3 Privilege


It gives the individual an absolute right to offer the expression regardless of whether it is disparaging, the individual is insusceptible from obligation emerging out of defamation lawsuit. Generally, absolute privilege exempts defamatory statements made:

  1. during judicial proceedings,

  2. by government officials,

  3. by legislators during debates in the parliament,

  4. during political speeches in the parliamentary proceedings and,

  5. communication between spouses.

In the case of T.J. Ponnen v. M..C. Verghese, the court held that a letter sent by a spouse to his significant other which contains disparaging data about the father-in-law isn't an instance of defamation. It is a privileged communication between the spouses as per Section 122 of the Indian Evidence Act, 1872.


2. Defence against Nuisance

  • Effectual Defence

2.1.1 Prescriptive Right to Commit Nuisance


After a nuisance has been proceeding with its reality for twenty years prescriptive right to proceed with it is obtained as an easement appurtenant to the land on which it exists. On the termination of this period, the nuisance becomes legalized ab initio, as though it had been approved in its beginning by an award from the proprietor of the servient land. The time runs, not from the day when the reason for the nuisance started yet from the day when the nuisance started (Exception Sturges Vs. Bridgman).


2.1.2. Statutory Authority


On the off chance that an act has been done under the given statute, it will be acknowledged as a defense. In Metropolitan Asylum District Board v. Hill, (1881) 6 AC 193 (HL), A had run a railroad organization in the nineteenth century and had acquired a passing of a private act of parliament to cause nuisance since the activity of steam trains included smoke and noise, A won't be held liable.

  • Ineffectual Defences

2.2.1 Nuisance due to acts of others

Where the nuisance isn't brought about by one, yet various different people, it's not a defense for the defendant to demonstrate that their contribution alone would not have added up to a nuisance.


2.2.2 Public Good

A nuisance might be the consequence of some activity that is of public advantage without a doubt, however, it is an actionable nuisance in any case. An individual ought not to be denied his/her own rights for the thought of public advantage with no legal compensation.


2.2.3 Plaintiff coming to the nuisance


If Mr Peter Parker intentionally buys an estate in close region to a refining works, his claim for remedy because of exhaust won't be given.


The contention set forward by the confectioner was that the doctor knew about the commotion brought about by the confectioner's work before broadening his chamber. The court dismissed this contention as this was not a recognised defence in nuisance.(Sturges v Bridgman (1879) 11 Ch D 852)

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