CATHOLIC UNIVERSITY OF EASTERN

AFRICA.

WINFRED WANJIRU KANYI

1032475

TORT LAW
GENERAL DEFENCES IN TORT.

A claimant who fails to prove the ingredients of a particular tort ,will fail.Even if he does ,he
may still fails if the defendant shows that he is entitled to rely upon some specific defences.

Some of the defences are:

a.Consent

Consent is based on the principle of “volenti non fit injuria”.A person who has voluntary agreed
to suffer harm ,cant claim damages for such harm

The consent to suffer harm can be either express or even implied.For the defense to be
available ,the act of causing harm must go beyond the limit what have been consented as in the
case of Hall v Brooklans Auto racing club the plaintiff who was a spectator got injured by racing
cars.One can got to the strand and injured him.Defendant was not held liable as the plaintiff had
consented.

If consent of the plaintiff has been obtained by fraud ,or under compulsion or under some
mistaken impression does not amount to good consent as a defense.

In the case of Lakshmi Rajani v Malar hospital the defendant was held liable for his actions

If the consent was obtained from a moral cause,then no action arises as in the case of R v
Williams.

Consent taken when one has no freedom of choice it is not proper consent.Where masters servant
relationship is involved , a person may have compelled by a situation under which he has
knowingly undertaken worth which he had free choice he would not undertaken.

To prove consent was obtained under compulsion you must prove

a)Plaintiff knows about the risk

b)Plaintiff agreed to suffer harm.

The expection to this defense is

1.In rescue case

Where the plaintiff has voluntarily encounters a danger to rescue somebody from an already
existing danger created by act of the defendant ,he can not use consent as a defense. As in the
case of Haynes v Harwood the court held in such cases the maxim does bot apply .If someone
acts to help those in danger as a result of a persons is liable for damages caused by his actions
as long as they are reasonable in that particular circunstances.

2.Unfair terms of a contract

Limits the right of a person to restrict or exclude his liability resulting from negligence.

b.Statutory authority.

When a statute authorizes what in otherwise constitute of a tort ,then the plaintiff has no remedy
apart from compensation if any authorized by the said statue.

In the case of Vaughan v Tatt Rail Co 1860,the defendant was not held liable since the statute
had authorized the running of a railway

c.Inevitable accident.

Inevitable accident was defined by Sir Frederick Pollock as an accident “not avoidable by any
such precautions as a reasonable man in doing such an act then and there could be expected to
fail”

Inevitable accident is concerned mostly in situations where a person exercising due

care ,ordinary prudence and diligence couldn’t have foreseen or avoided the accident.

There are cases in which the defendant will escape the liability if he succeds in proving that the
accident occurred despite hois reasonable care but also in some cases burden of prove lies on
him.

In Ryland v Fletcher the defendant was held liable despite taking reasonoable care .In Brown v
Kendall the defendant’s and plaintiff’s dog were fighting and so the defendant took a stone and
threw it at the dogs and accidentally injured the plaintiff.Defendant was not held liable as the
accident was foreseen.

d.Duress

Duress was many years ago not a defense.In Gilbert v Stone twelve unknown armed men
threatened to kill the defendant unless he entered the claimants house with them ,which he did.
To an action of trespass ,he was held not to have a defense.Actual physical compulsion from
mere threat was a defense.

e.Mistake

Mistake of a fact or law is no general defense to an ction in tort.For mistake of fact one must
examine the elements of whatever tort happens in question.

In defamation mistake is relevant in some instances of publication and priviledge..In other tort
matters have gone too far to make mistake a general defense in the law of torts for a good deal of
the law relating to trespass,conversion of goods and wrongs of strict liability would need
recasting.

Also in some tortsliability hangs upon whether a reasonable person would have done what the
defendant did and mistake becomes relevant here because a person may quite well make one and
yet be behaving reasonable.Hence the claimant in malicious prosecution must prove lack of
reasonable and probable cause for the prosecution.

Thus each area of liability depends upon a proper assessment of a balance between the interests
of potential claimants and the defendants is not surprising that mistake will vary in different
circumstances.In Consolidated co v Curtis and Sons the defendant was held liable.

The exception is that the defendant must prove his honesty.

f.Private defense.

Reasonable defense of oneself ,of ones property and of those whom one is bound to protect
negotiations any liability in tort.If the defendant uses force to protect oneself or property for self
defense,he will not be liable for any harm caused .It is a question of fact rather than of law
whether violence done by way of self protection is proportionate to warding of the harm which
is threatened.

If A uses force on B because of a mistake (for example if he believes that B is attacking him
when infact he is not) it is arguable that he has no defense to a civil action by B but the law
probable now is that he has a defense if his mistake is a reasonable one in that circumstance.

In Creswell v Siri the defendant shot the plaintiff’s dog which was chasing his herd of sheep
keeping in mind that the dog was attacking the herd of sheep.When it was shot by the defendant
he was not held liable as this was private defense.

g.Neccesity
An act causing damage if done under the necessity to prevent a greater evil,it is not actionable
even though the harm was caused intentionally.

Neccesity is based on a mixture of charity ,maintanence of the public good and self protection. In
Kirk v Gregory after A’s death,A’s sister in law removed the jewelery items and kept them in
another room and robbery happened.She was held liable as the interference was not
necessary.The justification for the interference depends on the state of things at the moment
which the interefernce takes places.

In some events intereference was not needed at all but that will not deprive doer of his
defense.In Cope v Sharpe a fire broke out of A’s land .While A’s servants were trying to put out
the fire on A’s land, the gamekeeper of C set off fire to some strips of heather between of the fire
and some nesting pheasant of C.A sued C for trespass.His action failed as his actions were
necessary.

h.Public policy.Illegality

If the claimant has to be found his claim on an illegal act or agreement ,he will fail.Ex turpi
causa non oritur action menas from an immoral cause no action arises.The maxim is for cases
concerning contracts but cases of tort in which to allow recovery to a claimant implicated in
illegality is against public policy.

Where the illegality is totally concerned with the tort,that may be enough to lead to the
conclusion ,it should be ignored.Where the illegality is closely concerned with the loss ,some
means must be found of identity ,those cases in which it will bar the claim.

The mere fact that the plaintiff was the wrong doer doesn’t entitle him from recovering damages
for the defendant for the wrongful act.

i.An act of God

For the act to be termed as an act of God then following must be present:

1.The event must be caused by natural force

2.Event must be extra ordinary and could not be prevented

3.It must be unanticipated.

REFERENCES.

https:\\upreparelaw.com/general-defense-in-torts-law-notes-pdf.cases/

Winfiled and Jolowicz 18th edition.

GENERAL DEFENCES IN TORT.