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LECTURE 11:- Justification for tortuous 201

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General Defences in Tort.

Though some torts have special defences, e.g privilege in the tort of
defamation, there are certain general defences which when present
will prevent an act from being actionable in court, they include:1. Volenti non fit injuria
2. Mistake
3. Inevitable accidents
4. Acts of God
5. self defence
6. Necessity
7. Statutory authority
8. Contributory negligence
1.1.1 Volenti non fit Injuria
A literal meaning of this terms is, no injury is done to one who
consent , and in simple words it means that a person who consents to
run a risk voluntarily cannot maintain an action

in tort against the

person who inflicts an injury. This defence can be seen as involving two
important factors:a) Consent to intentional harm
b) Assumption of risk to negligent harm.
Consent to intentional harm means that you have expressly or
impliedly consented to the risk of harm. No man can enforce a right,
which he has voluntarily waived or abandoned e.g. consent to bodily
harm, which would otherwise be assault. This situation occurs
especially in relation to sports. In case of Simms vs. Leigh Rugby
Football Club 1969, Simms, a visiting player broke a leg as he was

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tacked and thrown towards a concrete wall. The action he brought
against the rugby club failed because, Simms had consented and
moreover the concert wall had been erected in accordance with the
leagues guidelines. Morris vs. Mulay, the claimant went on a joyride
in the defendants plane knowing that the defendants pilot was drunk.
The plan crushed and the claimant was injured. The court of appal held
the claimants action was barred by the Maxim Volenti non-fit
This means that consent has been given to the risk of accidental harm,
which would otherwise be actionable as negligence. In the case of Hall
vs. Brooklands Auto Racing Club 1933, a racing car shot over the
railings, there was no negligence on the part of the defendants and the
spectator voluntarily took a lawful risk in attending the sport. The
defendants were therefore not liable.
NB: this defence protects the football player, wrestler, boxer, so long as
they play fairly according to the rules of the game.
1.1.2 Inevitable Accidents
Inevitable accidents is defined as an accident not avoidable by any
such precaution as a reasonable man doing such an act then or there
could be expected to take. Thus an inevitable accidents is one which
cannot be avoided by exercised care, caution or skill. In order to
establish the defence of inevitable accident, it is necessary to prove
that the alleged accident was not capable of being prevented by
ordinary care or proving that he accident occurred despite the exercise
of reasonable care on his part.
In the case of Stanley vs. Powell 1891,(injury by pellet) the
defendant, who was one of a shooting party, fired at a pheasant. One
of the pellets from his gun glanced off the bough of a tree and
accidentally wounded Stanley the claimant was employed to carry the

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cartridges and game for the party. It was held that the defendant was
not liable.
In National Coal Board vs. J.E. Evans & Co. , Evans & Co Ltd.
Were employed by a county council to dig a trench on their land. The
job was subcontracted and while digging, the sub contractor damaged
an electric cable. Unfortunately, water sipped into the cable casing an
explosion and the electricity supply to one of the claimants collieries
was cut off. The claimant sued for trespass and negligence. When the
case went to the court of appeal the court held that, the defendant
were liable for neither, as the sippage of water was an inevitable

Acts of God(Vis Major)

An act of God is an inevitable accident caused by natural causes of

nature and unconnected with human agency. There are two ingredients
in this defence that have to be proved:a) that the act was so unpredictable that even a reasonable man
would not be expected t foresee and guard against it.
b) That the damage is a consequence of the operation of natural
causes without human intervention.
In Nichols vs. Marslands 1876,

the defendant has a series of

artificial lakes on her land which had been created earlier when natural
streams was dammed. An exceptionally heavy rainfall occurred which
swelled the lakes and caused the lakes to burst. The tide of water
carried away four bridges belonging to the county council. The county
surveyor sued marsland. The court held that the defendant was not
liable because the escape of water was an Act of God. It was sufficient
to provide against the operation of nature, but it was not necessary to
provide against miracles.

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NB: an act of God is something, which happens quit independent of
human intervention and is due to the natural causes such as storm,
earthquake, lightening which no kind of human foresight or wisdom ca
provide against. Happening of such a highly improbable event will
relieve the defendant of his absolute liability in tort.

Statutory Authority

Certain action in torts can be defended by showing that there was a

statutory authority permitting the alleged wrong. This defence applies
where a government employee or an employee of a local authority
does an act, which he is legally obliged to perform under a particular
act or by law. This authority may be classified as absolute and so
authorises acts though they may cause harm to others.
Vaughan vs. TaffVale Railway Co.1860, a railway company was
authorised to run a railway. As the railway, company had been
authorised by statute to run a railway through the claimants land and
had taken all known care in the construction of the engine to prevent
spark emission. It was not liable and could rely on statutory authority.
However , when executive officers are vested with special statutory
powers they must exercise them strictly in accordance with the
provisions of the Act, which conferred such powers on them.
The other kind of statutory authority is conditional or permissive. In the
case of Penny vs. Wimbledon Urban Council 1899. the council under
statutory powers employed the contractors to make a road in the
course of which the quantities of soil were placed on the road. One
night when it was dark, the claimant fell over the heap and was
injured. It was held that his employers were liable, because , from the
nature if the work, danger was likely to arise to the public using the
road unless precautions were taken



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The defence of necessity is founded on the principle of law that
provides that the welfare of people is the supreme law. There are many
case I which individuals sustain an injury for which the law affords no
action, as where private houses are pulled down to stop a fire, or goods
cast overboard to save a ship or the lives of those on board. The
welfare of the people is the supreme law- salus populi suprema lex
thus individual welfare shall, in case of necessity, yield to that of the
community; and a persons property, liberty and life may be placed in
jeopardy or even sacrificed for public good.
In Dewey vs. White 1827. W pulled down a house in order to prevent
fire from spreading to other property. D, the owner of the adjoining
house, which was damaged, did not succeed in an action for damages
for it was held the act of the defendant W was motivated by necessity.

Private defence/ self defence

Every person hasa right to defend his own personb, property, or

possession, against an unlawful harm. This may be done for a wife or
husband, a parent or child, a master or servant. The force employed
must not be out of proportion to the apparent urgency of the occasion.
The necessity must be proved.
Every person is entitled to protect his property. However, he cannot for
this purpose do an act, which is injurious to his neighbour. An animal
may be shot where it is posing an imminent danger but not where
there is no such danger or the danger has ceased.
This right is not absolute and has some limitation namely:a) the force used must not be out of proportion to harm threatened.
b) The necessity to use such force must be estimated(justification)
Morris vs. Nugent 1836, in this case, N was passing by Ms house.
Ms dog ran out and bit Ns gaiter (covering for the leg fitting over the
shoe) and on Ns turning round and raising for his gun, the dog ran

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away but he shot the dog when it was running away. It was held that
the defendant was not justified in so doing and was liable to pay
NB: a person is entitled to protect his property but he cannot do
anything which harmful to the neighbours.

Contributory negligence

Where any person suffers damage as a result partly of his own faukt
and partly by the fault of any other person(s) a claim in respect of that
damage shall not be defeated by reason of the fault of the person
suffering the damage but the damage recoverable in respect thereof
shall be reduced to such an extent as it reflect his participation.
In Bird vs. Holbrook, the plaintiff was a trespasser as he claimed over
the defendants wall in pursuit of a fowl, but he was held entitled to
damages for the injury caused by a spring gun set by the defendant
without notice in his garden, although the injury would not have
occurred if the plaintiff had not trespasses on the defendant land.
Persons engaging in an unlawful act may not sue for any injury caused
by one to the other unless it is outside their common pursuit. The
conduct and the relative moral culpability of the parties may eb
relevant in determining whether or not ex turpi causa non oritur1
action fails to be applied
In order to prove contributory negligence, the defendant must prove
the following:a) that the claimant acted carelessly
b) it is also necessary to show that the claimant owed the
defendant a duty of care. All that need to be established is
that the claimant refused to take reasonable care for his

The maxim means a Petitioner who comes into court founding his cause of action on an illegality, will
not het any assistance from the court.


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In certain situations the courts are relatively slow to ascribe
contributory negligence to the claimant. This applies in the following
groups:a) Children
If the claimant is a child, the court will judge him by the standard of
an ordinary child of the same age and will be reluctantly to find
contributory negligence. Yachak vs. Oliver Blais Ltd 1949. A 9
year old boy persuaded the defendants to sell him some petrol by
saying his mother needed it for her car. He was seriously burned
when they used the petrol . it was

held that the child had not

contributed to his injury because he was too young to know of the

NB: a child who is old enough to understand the risk he is taking
may be contributory negligent. This was so decided in the case of
Gannon vs. Rotherham MBC1991. a 14 year old was contributory
negligent when he dived into a shallow end of a swimming pool and
broke his neck. A person of his age should have known that it was
dangerous to dive in this way.
b) Rescuers
The impulsive design to save human life when in peril is one of the
most beneficial instincts of humanity. so the claim of a person who
is injured is the act of rescuing others from danger cannot be
defeated on the ground of contributory negligence.
c) Employees
The court usually takes a lenient attitude to contributory negligence
by an employee injured by an accident at work, although the court
occasionally find that an employee has contributed to his own injury
e.g. by refusing to wear protective clothing. Under the health and
safety, Act employers have a duty to ensure that the workplace is

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safe for their employees and this usually includes a duty to keep
them safe even if they are disobedient or careless.


Judicial Authority

When a judge acts within jurisdiction, no action lies for acts done or
words spoken by him in the exercise of his judicial office, even though
his motive is malicious and the acts or words are not done or spoken in
bad faith.


It is normally no defence to say that the wrongful act was done by

mistake of fact or mistake of law except in certain cases of arrest,
mistake of fact is a defence if it arises from a reasonable suspicion e.g.
where a police officer arrests a person about to commit a crime or
reasonably suspected of a crime that had actually been committed.
In Beckwith vs. Philby 1827. it was held that the mistaken arrest of
the plaintiff on the reasonable suspicion of a crime is not actionable as
false imprisonment if the crime has been committed and that there are
reasonable grounds for believing that the person s guilty. Thus , the
mistake is a good defence if it is genuine, honest and reasonable.