A synopsis submitted for Law of Torts

On

General Defenses available under Tort Law

Submitted to: Professor Afrin Khan

Submitted on: 6th October 2017

Submitted by: Jahnvi Shah

Roll number: A016

Batch: BBA-LLB (Hons.) FY

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TABLE OF CONTENTS
A. ACKNOWLEDGEMENT 3
B. LIST OF TABLES AND FIGURES 4
C. ABBREVIATIONS AND LEGAL DEFINITIONS 4
1. INTRODUCTION 5
2. RESEARCH METHODOLOGY 8
3. ANALYSIS 9
a. Inevitable Accident 9
b. Doctrine of Sovereign Immunity 12
4. RECOMMENDATION 16
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ACKNOWLEDGEMENT
I would like to express my special thanks of gratitude to the Professor Afrin Khan who gave me
the golden opportunity to do this wonderful project on the topic General Defenses under Tort
Law which helped me in learning how to do legal research for future research papers as well.

Secondly I would also like to thank my parents, who let me stay away from home and friends
who helped me a lot in finalizing this project within the limited time frame. Their support on me
has always been limitless. They always encouraged me to not be afraid to take on a new subject
and expand my knowledge.
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LIST OF TABLES AND FIGURES

Fig 1: Case Law: Hall v/s Brooklands Auto Racing club (Volenti Non Fit Injuria)

Fig 2: Case Law: Stanley v/s Powell (Inevitable Accident)

Fig 3: Case Law: Scott v/s Shepherd (Private Defense)

Fig 4: Case Law: Chandaram Nagaram Rice and Oil Mills Ltd, Gaya v/s Municipal Commissioner of
Purulia (Doctrine of Sovereign Immunity)

Fig 5: Definition of Inevitable accident by Pollock

Fig 6: Case Law: Fardon v/s Rivington (Analysis of Inevitable Accident)

Fig 7: Case Law: Shridhar Tiwari v/s. UP State Road Transport Corporation (Analysis of
Inevitable Accident)

Fig 8: Case Law: P. and O. Navigation Company v. Secretary of State for India

Fig 9: Case law: Kasturi Lal Ralia Ramv/s State of Uttar Pradesh

LEGAL DEFINITIONS
1. Doctrine of Sovereign Immunity: The doctrine of sovereign immunity is based on the
Common Law principle borrowed from the British Jurisprudence that the King commits
no wrong and that he cannot be guilty of personal negligence or misconduct, and as such
cannot be responsible for the negligence or misconduct of his servants.
2. Inevitable Accident: an inevitable accident is that which is “not avoidable by any such
precautions as a reasonable man, doing such an act then and there, could be expected to
take”.
3. Sovereign power: The supreme, absolute, and uncontrollable power by which an
independent state is governed and from which all specific political powers are derived;
the international independence of a state, combined with the right and power of
regulating its internal affairs without foreign interference.
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INTRODUCTION
General Defenses are principles which negate the tortuous liability of a person. If the plaintiff fails to
prove the basic essentials required in a particular tort suit, he will fail in his action. He may also fail if the
defendant proves his case to fall under one of the General Defenses. The basic essentials required to prove
a case of tort are as follows

 the defendant must have committed a wrongful act or omission, and

 the plaintiff must have suffered some damage (be it monetary loss OR physical injury OR legal
injury), and
 the defendant had a duty towards the plaintiff.

The defendant has a total of eight general defenses. It may be of importance to know that there are
specific defenses available under various torts, but here only general defenses will be discussed. Below
you will find a brief introduction to each of the eight defenses available to a defendant.

1.
Volenti non fit injuria – it is a Latin phrase which means ‘to a willing person, injury is not done’.
If a person is entering into a fencing match, he is accepting all the reasonably foreseeable injuries
that may arise due to the fencing match.

Case law: Hall v/s Brooklands Auto Racing Club

The plaintiff was a spectator at a motor race. Due to collision between two
racing cars, one of it rammed it in to the spectator’s stand and injured the
plaintiff. It was held that the organizers were not liable, as the plaintiff
impliedly took the risk of such injury.

Fig 1

2. Act of God (Vis Major) – all the natural calamities such as flood, earthquake, drought spells, and
volcano are included under this defense. The incident must be irresistible and must also be
unprecedented or unforeseeable.
3. Inevitable accident – when the defendant has taken all reasonable care and caution to prevent the
injury that a reasonable man would take but there is still an injury caused to the plaintiff, the
former can claim the defense of inevitable accident.
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Case law: Stanley v/s Powel

The defendant and plaintiff were part of a shooting party that went hunting, the
defendant shot at a pheasant but his bullet glanced off an oak tree and hit the
plaintiff. The court ruled that the act was an inevitable accident and the defendant
had taken all the care that is expected of a reasonable prudent man.

Fig 2

4. Necessity – injury done to prevent greater damage from occurring is covered under this defense.
A common example where a ship captain suddenly found himself in such a position that he had to
either hit a bigger ship which carried over a hundred people on board, or hit a small boat which
carried two fishermen. In this case, the captain could have claimed the defense of Necessity.
5. Private defense – when an act is done by the defendant to protect his own or his neighbor’s body
or property, the defendant can take the defense of Self defense.

Case law: Scott v/s Shepherd

A threw a lighted firecracker aimlessly in a crowded market place. It was

about to land on a sweet stall. The owner of the shop, acting in self-defense
quickly picked it and threw it. It fell on plaintiff. It was held that the sweet
stall owner had acted in private defense and hence not liable.

Fig 3

6. Doctrine of Sovereign immunity – this doctrine is applied in cases of torts authorized by a

statutory body, as far as the legislature has thought it proper to provide compensation to him. It
extends to all inevitable consequences of such an authorization, unless the authority does the act
negligently.

Case law: Chandaram Nagaram Rice & Oil Mills Ltd., Gaya v/s Municipal
Commissioner of Purulia

The plaintiff dispatched 1000 canisters filled with mustard oil in a van belonging to E.I.
Railway. When it reached Purulia, the Municipal Commissioner issued a search warrant
and declared the oil was bad. The oil was seized by them and later dispatched from the
station by in a scavengers’ truck by mehtars. It was held that the defendant is liable since
they acted hastily and hence negligently.
Fig 4
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7. Mistake – mistake of fact as a defense under law can be claimed, but mistake of law cannot be
taken as a defense. This defense is only available under some exceptional torts such as malicious
prosecution, false imprisonment, etc.
8. Contributory negligence – when both the plaintiff and the defendant are liable for the injury, this
defense can be claimed by the defendant. It means that the defendant was at fault, but the plaintiff
would not have suffered the injury had s/he not contributed to it.

If a case is decided in favor of the plaintiff, he will be awarded a remedy. The two options of remedy
available under tort law is paying money equal to the damage (i.e. compensation) caused to the plaintiff,
and the other one is putting a stop on further harm being caused (i.e. injunction).

In the ensuing research paper there will be a detailed description of two of the eight General Defenses,
with some case laws. Efforts have been made to make the paper from an objective point of view.
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RESEARCH METHODOLOGY
Research has majorly been done through online research and online law databases provided by the
college. Some books from the college library were referred before taking up online researching to get a
gist of what to research. Secondary source of research was undertaken for this research paper as
interviews and direct observation was neither feasible nor required for the particular topic. Ebooks and
online material has been used in online research. A book Law of Tort including Compensation under the
Consumer Protection Act (Sixth Edition) written by S.P. Singh was referred from the college library. The
Law of Torts (Twenty-Sixth Edition) written by Justice G.P. Singh was also referred to narrow down on a
few good case laws that would better explain the General Defenses discussed in the paper.

The former title was found to be a more concise book with fewer case laws as compared to the latter one.
It gave a better understanding to the author of this research paper of the kind of research that needs to be
undertaken. Efforts have been made to choose such case laws as would give the best explanation to a
newbie to torts law.
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ANALYSIS

INEVITABLE ACCIDENT
An ‘inevitable accident’ or ‘unavoidable accident’ is that which is physically unavoidable. It
does not apply to anything which either might have avoided.

Pollock

an inevitable accident is that which is “not avoidable by any such precautions as a

reasonable man, doing such an act then and there, could be expected to take”.

Fig 5

In the case Fardon v/s Rivington, the defendant was held not liable as the judge stated that a
reasonable man is expected to guard from reasonable possibilities only, and not fantastic or
unexpected possibilities.

The defendant was travelling in motor-car with his dog. He parked his motor-car in a street and left his
dog inside the shut car. The dog has no vicious propensities and was always quiet and docile. As the
plaintiff passed just by the side of the car, the dog which had been barking and jumping about in the
car, smashed a glass panel and a splinter entered into one of the eyes of the plaintiff which had to be
removed through surgery. The plaintiff sued the dog owner for damages.

The judge stated that it is an extremely unlikely event and that a reasonable man should not be
convicted of such negligence, as the dog was usually quiet and docile and no reasonable man could
have foreseen such an event happening. “People must guard against reasonable possibilities, but they
are not bound against fantastic or unexpected possibilities.” The principle of Inevitable Accident was
applied in this case as the dog was always a quiet and docile one and never acted as wildly as it did
when the plaintiff got hurt. Hence the owner of the dog could not have foreseen that the dog would act
out before he left the dog in the shut car.

Fig 6
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In the pre nineteenth century cases, the safeguard of unavoidable accidents used to be basically
applicable in activities for trespass when the old ruling was that even a flawless trespass was
significant, unless the defendant could demonstrate that the accident was inescapable. However,
this is not relevant anymore.

In current scenario, all causes of inevitable accidents may be divided into two classes:

(1) those which are occasioned by the elementary forces of nature unconnected with the agency
of man or other cause or ‘act of God’; and

(2) those which have their origin either in the whole or in part in the agency of man, whether in
acts of commission or omission, nonfeasance or misfeasance, or in any other causes independent
of the agency of natural forces.

An inevitable accident is one which the defendant could not have avoided by the use of the kind
and degree of care necessary to the exigency under the circumstances.

The emerging conception of inevitability can be seen most clearly in Whitelock v/s Wherwell,
the bolting horse case of 1398. The complaint in the case was unusual because the plaintiff,
rather than just reciting that the defendant had hit him with force and arms, also alleged that the
defendant had “controlled the horse so negligently and improvidently” that it knocked him
down. The defendant conceded that the horse had knocked down the plaintiff, but pleaded that
the plaintiff’s fall was “against the will” of the defendant. The defendant went on to explain that
he had hired the horse without notice of its bad habits, that it ran away with him as soon as he
mounted it, and that he “could in no way stop the horse” although he “used all his strength and
power to control” it. It was a plea of inevitable accident. The collision may have been inevitable,
but it had become inevitable by virtue of the defendant’s negligence, and was thus not held to
be an accident.
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The case Shridhar Tiwari v/s. UP State Road Transport Corporation is also an important case
as it shows that even though a bus hit a cyclist, resulting in the cyclist being injured, the bus
corporation was not held liable as the accident happened due to the plaintiff’s negligence.

Case law: Shridhar Tiwari v/s. UP State Road Transport Corporation

A bus driving down the road suddenly applied his brakes to stop from hitting a cyclist who
suddenly swerved into the road. As a result of the rains, the road was wet and slippery and the
rear portion of the bus hit the front portion of another bus coming from the opposite direction.
The court ruled that since the busses were driving at moderate speeds and were driving with
prudence expected of a reasonable man. The defendant corporation was not held liable.

Fig 7

In the case, Achutrao Haribhau Khodwa and Others v. State of Maharashtra and Others
the deceased, the appellant’s relative was admitted to a government hospital for a sterilization
operation. During the operation however, a mop was left inside the body of the deceased leading
to the pus formation and his subsequent death. The appellant approached the Supreme Court to
strike down the High Court order and award damages worth Rs 1,75,000. The appellant could
not have proved the negligence of the doctors and hence the doctrine of res ipsa loquitur was
applied to hold the defendants liable as the court felt that it was a negligent act of the doctors in
leaving the towel which caused the death and that this act was well within the control of the
defendants. Though it is common that certain foreign bodies are generally left behind in a
patient’s body during an operation, intentionally or unintentionally and that the body generally
fights the foreign bodies it was observed that leaving a mop was an extremely negligent act. The
order of the High Court was set aside.

In the case of Rylands v/s Fletcher, the plaintiff owned and operated a mine adjacent to which
defendant constructed an artificial pond. The latter caused a mineshaft collapse, which resulted
in a flood, and damaged plaintiff’s operation. The plaintiff sued, the matter was brought before
an arbitrator to independently establish facts. The trial court found for plaintiff and the appellate
court affirmed. The defendant appealed to the House of Lords, which also affirmed. It was held
that the use of land by the defendant was unreasonable. By building a mineshaft on his land, he
brings upon himself a suit for absolute liability. This case was a landmark case as it brought into
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picture a new principle of absolute liability, to which the defense of inevitable accident does
not apply.

It can be inferred from the cases mentioned above that ‘inevitable accident’ is not a defense but
in fact, just a denial of liability for the defendant has not committed nay tort. For instance, in an
action for bodily injury, the plaintiff has ordinarily to prove intent, or negligence of the
defendant, and if he fails to do so, his injury may be said to be and inevitable accident. In cases
of absolute liability, inevitable accident is no excuse unless it takes the form of an act of God.
Professor Winfield also supports this by saying “there seems, in fact, to be only one class of
case in which the conception of inevitable accident has any meaning, and even there it is in truth
misleading”. In cases to which the maxim res ipsa loquitor applies, the plaintiff can rely upon
the mere happening of the accident as evidence of negligence, and then it is sometimes said that
the defendant is liable unless he proves inevitable accident. But this, it is submitted to
oversimplify the position in cases of res ipsa loquitor and perhaps falsify it. It therefore seems
the conception of inevitable accident has no longer any useful function and it is doubtful whether
much advantage is gained by the continued use of the phrase.

DOCTRINE OF SOVEREIGN IMMUNITY

The doctrine of Sovereign Immunity is a justification for any wrong committed by a statutory
body of the State or its representatives. It has been derived from the British Jurisprudence that
the King can do no wrong, cannot be held liable for any personal negligence or misconduct nor
for any negligence or misconduct by his servants while under his order.

In India, it is the Article 300 of the Indian Constitution which specifies the Unions or State’s
liability for any tortious act of the Government. This Article originated from Section 176 of the
Government of India Act, 1935.

AN OVERVIEW OF THE ARTICLE 300 – the first part of the Article states that the Union
may sue or be sued by the name of the Union of India, and a State may sue or be sued by the
name of the State. The Second part gives how the pending cases against the Union or the State
before the Constitution was made would be dealt with.
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In India, the story of the birth of the doctrine of Sovereign Immunity begins with the decision in
the case of P. and O. Navigation Company v. Secretary of State for India, in which the terms
“Sovereign” and “Non-sovereign” were used while deciding the liability of the East India
Company for the torts committed by its servants. The point in this case was to determine the
degree of liability of the State.

The facts of the case were that a servant of the plaintiff’s company was proceeding on a highway in
Calcutta, driving a carriage which was drawn by a pair of horses belonging to the plaintiff. He met with
an accident, caused by negligence of the servants of the Government. For the loss caused by the
accident, the plaintiff claimed damages against the Secretary of State for India. Sir Barnes Peacock C.
J. (of the Supreme Court) observed that the doctrine that the “King can do no wrong”, had no
application to the East India Company in this case as it was performing a non-sovereign function. The
Court drew the distinction between sovereign and non-sovereign functions, i.e. if a tort were committed
by a public servant in the discharge of sovereign functions, no action would lie against the Government
– e.g. if the tort was committed while carrying on hostilities or seizing enemy property as prize. The
liability could arise only in case of “non-sovereign functions” i.e. acts done in the conduct of
undertakings which might be carried on by private person-individuals without having such power.

Fig 8

The legislature has very wide powers. Any principle of common law may be reversed by the Act
of Parliament; and so any act or omission tortious under the common law may be specifically
made legal by a statute. It is in this respect, that statutory authority is a defense. Certain
principles, which have emerged during the course of judicial decisions, are discussed further in
the research paper.

The aforesaid judgment laid down that the East India Company had a two-fold character:

a) As a sovereign power and

b) As a trading company.

The liability of the East India Company only extends to its commercial dealings and not to the
acts done by it in exercise of delegated sovereign power. The damage was done to the plaintiff in
this case during the exercise of non-sovereign function by, i.e. the maintenance of Dockyard by
the East India Company which didn’t need a sovereign power but could be delegated to any
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private party. Hence the government cannot escape liability and was held liable for the torts
committed by its employees.

In the case of Kasturi Lal Ralia Ram v/s State of Uttar Pradesh, it was said by the Supreme
Court it is necessary to make a distinction between sovereign and non-sovereign powers of the
government as the various governments “naturally and legitimately enter into many commercial
and other undertakings and activities which have no relation with the traditional concept of
governmental activities which have no relation with the traditional concept of governmental
activities in which the exercise of sovereign power is involved”.

Case law: Kasturi Lal Ralia Ram Vs. State of Uttar Pradesh

In this case partner of Kasturilal Ralia Ram Jain, a firm of jewellers of Amritsar, had gone to Meerut for
selling gold and silver, but was taken into custody by the police of the suspicion of possessing stolen
property. He was released the next day, but the property which was recovered from his possession could
not be returned to him in its entirety inasmuch as the silver was returned but the gold could not be
returned as the Head Constable in charge of the Malkhana misappropriated it and fled to Pakistan. The
firm filed a suit against the State of U. P. for the return of the ornaments and in the alternative for
compensation. It was held by the Apex Court that the claim against the state could not be sustained
despite the fact that the negligent act was committed by the employees during the course of their
employment because the employment was of a category which could claim the special characteristic of a
sovereign power. The court held that the tortious act of the police officers was committed by them in
discharge of sovereign powers and the state was therefore not liable for the damages caused to the
appellant.

Fig 9

Sovereign immunity is a common-law doctrine which has originated from court decisions.
Historically, the principle of Doctrine of Sovereign Immunity was formed on the grounds that the
“King could do no wrong”, diverting the state’s fund in dealing with other governmental
purposes could bankrupt the state and retard its growth, dealing with tortious liabilities would
hamper the State’s ability perform its duties efficiently, and it is more sensible for an individual
to suffer than for society to be inconvenienced. However, all the justifications that initially
existed for sovereign immunity, they are no longer valid in today’s society. Sovereign immunity
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contradicts the essence of tort law that liability follows negligence and that individuals and
corporations are responsible for the negligence of their agents and employees acting in the
course of their employment. “While the rule is that a suit cannot be maintained against the
sovereign without its consent, it is equally well established that a clear official duty, not
involving the exercise of discretion, may be enforced when performance thereof is arbitrarily
refused, and that, if a person will receive injury because an official is about to violate an official
or legal duty, for which adequate compensation cannot be had at law, such conduct may be
enjoined.” Furthermore, although we abrogate the State’s sovereign immunity from tort liability,
it can be concluded that abrogation should be prospective so that the Legislature can implement
and plan in advance by securing liability insurance, or by creating funds necessary for self-
insurance.
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RECOMMENDATION
The author of this research paper found these two General Defenses to be unique in the sense
that Inevitable Accident is not in fact a defense but just a denial of liability, and in proving the
doctrine of Sovereign Immunity the major burden is to prove that it was actually a sovereign
function of the governmental body and not a non sovereign one. Sovereign power of the
government basically means that it could not have been delegated to anyone else, and has to be
done by the government itself. For example, defense is a sovereign power of the government,
whereas making roads and railways is not in fact a Sovereign power as it can be delegated to
private bodies such as Larsen & Toubro.