justifications of toabcrt

Law Of Tort

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Director (edu) Chiniot Law College Muhammad Riaz

MA Pol sc LLM

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GENERAL DEFENCES (JUSTIFICATIONS / EXCEPTIONS / EXCUSES /

EXEMPTION) IN TORT

How to secure oneself, a concept.

Similarly justifications are safeguards against tortuous liability.

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MA Pol sc LLM

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GENERAL DEFENCES/JUSTIFICATIONS IN TORT

1. Introduction

2. Purpose of justifications

3. Scope of justifications

4. 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

� Defendant’s duty to prevent

(VI) Case law

(B) Acts of State

(I) Technical Implication

(II) Explanation

(III) Scope

(IV) Case law

(C) Judicial Acts


(II) Explanation

(III) Scope

(D) Quasi judicial Acts


(II) Explanation

(III) Scope

(E) Executive Acts


(II) Explanation

(III) Scope

(F) Parental and quasi-parental Authority


(II) Explanation

(III) Scope

(G) Damage incident to authorized Acts

(I) Explanation

(II) Scope

(IV) Example

(H) Exercise of common Rights


(II) Explanation

(III) Case law

(I) Authorities of Necessity


(II) Explanation

(III) Case law

(J) Vis major (act of God)

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(II) Scope

(III) Case law

(K) Inevitable accident


(II) Explanation

(III) Scope

(IV) Exception

(V) Case law

(L) Self Defence


(II) Explanation

(III) Examples

(IV) Scope

(M) Mistake


(II) Explanation

(III) Scope

(N) Contributory Negligence


(II) Explanation

(III) Scope

(IV) Exception

(O) Statutory Authority


(II) Explanation

(III) Scope

(IV) Case laws

(P) Novus Actus Interveniens


(II) Explanation

(III) Exception

5. Summary

Law Of Tort

Director (edu) Chiniot Law College

GENERAL DEFEN

1. Introduction

There are certain justifications which when present will prevent an act from being

regarded as wrongful.

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

justification, thus making the plaintiff

defences which may be taken to e

2. Purpose of justifications

The purpose of justification is to limit the tortuous liabilities

cases.

3. Scope of justifications

Justifications safeguard the torious liabilities for bonafide intention. It

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

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GENERAL DEFENCES/JUSTIFICATIONS IN TORT


regarded as wrongful. Generally, a plaintiff has to prove his case in a court of law

so successfully, judgment is passed against the defendant. The

defendant on the other hand may defend the case against himself successfully

, thus making the plaintiff’s action fail. There are some

defences which may be taken to escape from tortuous liability.

Purpose of justifications

The purpose of justification is to limit the tortuous liabilities under exceptional

Scope of justifications

Justifications safeguard the torious liabilities for bonafide intention. It

intent.

What are general defences / justifications in torts

Volenti Non Fit Injuria (leave and Licence)

General role


if he consented to run the risk of it.

4

IN TORT


Generally, a plaintiff has to prove his case in a court of law

so successfully, judgment is passed against the defendant. The

defendant on the other hand may defend the case against himself successfully with

some general

exceptional

Justifications safeguard the torious liabilities for bonafide intention. It does not


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(II) 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.

(III) 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.

(IV) Scope

The maxim extends to the act which plaintiff consented. And the

consent can not be given to an unlawful act.

(V) 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 defendant’s

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.

�� Defendant’s 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.

(VI) 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,

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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) Technical implication

An act done by the ruler of an independent State in his political and

sovereign capacity is called act of state.

(II) Explanation

This justification safeguards acts of the state against tortuous liability if

the act being complained of is done in sovereign capacity.

(III) 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.

(IV) 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.

�� Decision of the court

It was held that the owner of the slaves could recover no

damages for his loss, as it was the act of state.

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(C) Judicial Acts

(I) 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.

(II) 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.

(III) 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

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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.

(II) 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.

(III) Scope

The exemption extends to all quasi judicial authorities if the rules of

justice are not violated.

(E) Executive Acts


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.

(II) 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 justice’s warrant is protected.

(III) 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

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executing the law; and in so doing they are similarly protected

public officer.

(F) Parental and quasi

(I) Technical Imp

Parents, guardian and teachers etc are protected by law if they use

reasonable force for the betterment of their child or ward.

(II) Explanation

There are also several kinds of authority in the way of force or restraint

which are necessities of

authority are protected in exercise thereof, if they act

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, s

instance. Persons

acting by their direction, are justified in using such reasonable and

moderate restraint as is necessary to prevent the lunatic

(III) 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

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executing the law; and in so doing they are similarly protected

public officer.

Parental and quasi-parental Authority

Technical Implication


reasonable force for the betterment of their child or ward.

Explanation


are necessities of the society. And persons exercising such

are protected in exercise thereof, if they act in good faith and



delegated, such as a school teacher) is the most obvious and universal

Persons, having the lawful custody of a lunatic, and those


moderate restraint as is necessary to prevent the lunatic from doing



Damage incident to authorized Acts

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executing the law; and in so doing they are similarly protected as any



exercising such

good faith and



uch as a school teacher) is the most obvious and universal

having the lawful custody of a lunatic, and those


from doing.



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(I) 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.

(II) 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.

(III) 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


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.

(II) 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.

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(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


It exists in every system of law, acts done of necessity to avoid a

greater harm, and on that ground justified.

(II) 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 neighbour’s 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 man’s life, to perform it without waiting for him

to recover consciousness and give his consent.

(III) 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

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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)

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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.

� Decision of the court

It was held that the plaintiff's bridges were swept away by act

of God and the defendant was not liable.

(K) Inevitable accident

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(I) Technical Implication This means an accident, which cannot be

prevented by the exercise of ordinary care, caution or skill of an

ordinary man.

(II) 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.

(III) Scope

It does not extend on negligence cases. It justifies the defendant if he

uses reasonable care and attention.

(IV) Exception

Inevitable accident is not a defense in strict liability.

(V) 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

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Everyone has a right to defend his person, property and family from

unlawful harm with a reasonable force.

(II) 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.

(III) 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

(IV) Scope The force used must be reasonable and proportionate to that of

the attacker. Normally, no verbal provocation can justify a blow.

(M) Mistake

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Mistake of fact may be relevant as a defence to any tort in some

exceptional cases. Its application is very limited.

(II) 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.

(III) 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


It implies if the plaintiff was also a party to a tort of negligence then

the defendant would not exclusively be blamed for compensation.

(II) 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.

(III) Scope This defence does not absolve the defendant from liability. It

merely apportions compensation of damages between the parties who

contributed to the loss.

(IV) Exception

This defence is not available if the plaintiff is a child of tender age.

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(O) Statutory Authority


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.

(II) 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.

(III) Scope

The statutory authority extends not merely to the act authorized by the

statute but to all inevitable consequences of that act.

(IV) 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

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(I) 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.

(II) 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 accused’s 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’.

(III) Exception

This maxim does not become an excuse if:

� An act done in the agony of the moment created by the

defendant’s 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

another’s 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.

justifications of toabcrt

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