theoretical overview
When a plaintiff take action against the defendant for a tort committed by the defendant he shall be liable for it but there are some defense available to the defendant by which he can free himself from the liability of the wrong done
General defenses are considered a collection of defenses or excuses that the defendant undertake to fill liability
Voluntary non fit injuria
It Means when the Plaintiff voluntary suffers any harm then he has no remedy for that under law of torts for example once you invite your relative to your house then you can not sue them on the cost of trespass and doctor cannot be sued after the surgery done by them. In Voluntary non fit injury if a plaintiff give his concern to wrongful act with free consent without voluntary acceptance of risk than he has no Right to sue the defendant
Essential element of this defense
• The plaintiff has knowledge of the risk
• Voluntarily agree to suffer the harm
For example “A” has a bike whose break do not work and “B” knowing about the condition of the bike still choose to sit on it with “a” driving it and due to failure of such break they both got injured “ B “cannot claimed relief from “ A” because he had voluntary consent to sit on bike
Inevitable Accident
an inevitable accident Is a general defense in the law of torts also known as unavoidable accidence is that a person cannot be held liable for an accident which was not foreseeable despite all care and cautions taken from his side
For example Rahman was driving a scooty and was in his senses and took all due care but due to sudden mechanical part failure his scooty lost his balance and hit a passenger by in this case the Rahman would not be liable as he took all the precautions from his side the accident was unavoidable
Act of God
an act of God is an unforeseeable natural phenomena act of God is something which involves no human agency and caused due to natural forces and which could not have been preventing by any amount of plan and care the act of God serve as good defense under the law of tort it also recognized as a valid defense in Rule of strict liability
Plaintiff of the wrongdoer
Sometimes the defendant can take defense when the plaintiff is wrong door the law excuses the defendant when the act done by the plaintiff itself was illegal or wrong if the action by the plaintiff itself was unlawful he will not succeed in action and cannot recover damages.
Private defense
Private defense is a right available to every citizen of India to protect themselves from any external force that can result into any harm or injury the law has permitted the use of reasonable force to protect himself and his property For example if “A” strikes “ B” can not justify drawing his sword and cutting his hand
Mistake
Mistake is all fact or of law generally no defence to an action for torts. For example “ a “ is 17 year old went to buy a wine from wine shop B the owner of the shop honestly believed that he was above 18 years old and as per law the person who is the age of 18 can have legally wine. “C” the policeman caught “B” illegally selling wine to child here “B” can take advantage of the mistake of fact because he honestly believes it to be 18 above.
Necessity
an act causing damages if done under necessity to prevent a greater evil is not actionable even through harm was caused intentionally. For eg. Throwing goods overboard a ship to lighter it for saving the ship or person on board the ship
