Tort general exception
- 1. Dr. Khakare Vikas GENERAL EXCEPTION TO LIABILITY IN TORTS Dr. Khakare Vikas Asso. Prof. Narayanrao Chavan Law College, Nanded
- 2. Dr. Khakare Vikas What is general exception? • Plaintiff files suit against defendant claiming remedy against defendant. Then defendant tries to avoid his liability. Defendant can show the circumstances by which he may not be held liable for the wrongful act. This is known as general exception. • This is also known as general defences/general exceptions/justification of tort.
- 3. Under these conditions, an act ceases to be wrongful and in the absence of these conditions the same act would amount to be a wrong. Frederick Poallock defined general exceptions as, “the rules of immunity which limit the rule of liability”. These are the facts which is used by the defendant to justify his wrongful act.
- 4. Dr. Khakare Vikas Following are some general exceptions/defences 1. Act of State 2. Act of god 3. Judicial act 4. Quasi judicial act 5. Executive act 6. Parental and quasi parental act 7. Work of necessity 8. Inevitable accident 9. Leave and licence 10.Private defence 11.Plaintiff the wrongdoer 12.Act causing slight harm
- 5. Dr. Khakare Vikas 1. Act of State • An act done in exercise of Sovereign Power in relation to another State of subjects of another States. • Act of State is an act which is done by the Sovereign power in exercise of its absolute power. • Pollock defined this as, “act done or adopted by the prince or ruler of a foreign independent State in their political and sovereign capacity and within the limit of their de facto political sovereignty. • An act done by the authority of the Government of a Sovereign State in exercise of de facto sovereign is an act of State and no action lies in respect of it.
- 6. Dr. Khakare Vikas Exception to this rule are • Following are some exceptions in respect of which the Government could be made liable although the acts may be Act of State. Ø Trespass to immovable property, Ø An obligation imposed by a Statute, Ø Where it can be shown that benefit has resulted to Government from a tort of its servants.
- 7. Dr. Khakare Vikas 2. Act of god • This defence is also known as vis major or damnum fatal. • According to Salmond act of god is any event which could not have been prevented by reasonable care by on the part of any one. • According to Winfield act of god is an operation of natural forces so unexpected that no human foresight or skill could reasonably be expected to anticipate it. • Example – heavy rain, storm, earth quake, lightening, draught, eruption of volcano, tsunami waves. 1. The damage should occur due to operation of natural forces. 2. The occurrence of natural forces was extraordinary which could not be anticipated and reasonably guarded against.
- 8. Dr. Khakare Vikas 3. Judicial act • No action lies for acts done, words spoken by a judge in exercise of his judicial powers, although they may be made maliciously and not in the honest exercise of his office. • This is protection is given to judiciary under the public policy. As it is essential to work judiciary independently and without fear. • In India, such protection to judiciary is given under the provisions of ‘Judicial Officers Protection Act 1850’.
- 9. Dr. Khakare Vikas 4. Quasi judicial act • There are some persons or authorities which perform quasi judicial acts; like college, university, courts, clubs, committees etc. • These are protected against civil liability if they follows the principle of Natural justice which are... 1. Acted in good faith, 2. Given a fair and sufficient notice of offence, 3. Given full opportunity to defend.
- 10. Dr. Khakare Vikas 5. Executive act • If orders of public authority is valid; it is a good defence against an action of torts against the officers. But if they are guilty of misfeasance for a duty, they are liable.
- 11. Dr. Khakare Vikas 6. Parental and quasi parental act • Parents have right to custody of their child. They have a duty to take care. For correcting an evil in the child, they can moderately punish child. For this action cannot lie against them. • Similar defence is available to quasi parental authorities like guardian other than parents, teachers, headmaster, warden etc. • But where punishment is exorbitant, parents/quasi parents are liable under civil and criminal action.
- 12. Dr. Khakare Vikas 7. Work of necessity • This defence is based on ‘salus populi suprema lex’ which means, the welfare of people is supreme law. • By this maxim, injury to some/few person is possible for the welfare of majority of the society. For this there should be welfare of the maximum person and injury to minimum person. • Exmaples: o Destruction of building made ruinous by fire to prevent it falling. o Pulling down of a house to prevent fire spread. o Forcibly feeding a person on hunger strike unto death. o To provide medical treatment without consent of a person. o To ban a trade or manufacturing for welfare of society.
- 13. Dr. Khakare Vikas 8. Inevitable accident • According to Pollock, inevitable accident is, an accident not avoidable by any such precautions as a reasonable man, doing such an act then and there, could be expected to take. • inevitable accident is that could not be prevented by the exercise of ordinary care, caution and skill. Which means such accident is physically unavoidable. • Inevitable accident is similar to act of god except the presence of natural forces. • Inevitable accident is not a good defence but by this defendant may reduce his liability.
- 14. Dr. Khakare Vikas 9. Leave and licence • This defence is known as defence of consent. • This defence is based on the maxim ‘volenti non fit injuria’ which means one who consent cannot complain. • For example if a person has been invited at home; then suit cannot be instituted against him for trespass. • Consent may either express or implied. • There are many occasions when a person give consent or submit himself to the danger. For example fighting games, sports, work or employment involving risk, stunts, surgical operation etc.
- 15. Dr. Khakare Vikas For defence of consent following rules are applicable • Consent must be voluntary and free i.e. not caused by coercion, undue influence, mistake, misrepresentation or fraud. • The act for which consent is given must not itself be illegal. No consent can legalise an illegal act. • Knowledge of risk is not a consent. • This maxim is not applicable for the action based on breach of statutory duty. • All the laws and rules applicable to the act must be complied.
- 16. Dr. Khakare Vikas 10. Private defence • Every person has right to protect his person and property; and also his relatives and servants. While protecting person and property one may cause injury to person who attacked. • There should be imminent danger to use right of private defence. • The force to be used for private defence must be proportionate to the danger. • The rights of private defence is available only when the danger exist.
- 17. Dr. Khakare Vikas 11. Plaintiff the wrongdoer • Where the plaintiff himself was wrong doer; he cannot complain. • This is based on the maxim ‘ex turpi causa non oritur actio’ which means from an immoral cause no action arises. • Due to this defence plaintiff may get damages but that will be lessor.
- 18. Dr. Khakare Vikas 12. Act causing slight harm • Where damage to plaintiff is very less is also a defence. This is based on the maxim ‘de minimis non curat lex’ which means the law does not take account of trifles. • This defence is not useful where there injury is to legal right.
- 19. Dr. Khakare Vikas Thank you.