GENERAL DEFENCES WHICH NEGATIVE TORTIOUS LIABILITY

1. GENERAL DEFENCES WHICH NEGATIVE TORTIOUS LIABILITY

2. Introduction • In the preceding chapters we have discussed the principles determining the tortious liability of a person. But now we will discuss the various general principles which negative the tortious liability of a person. • Even if the plaintiff does prove the ingredients of the tort, he may fail in his action if the defendant justifies his tort on the basis of principles which negative tortious liability.

3. Maxim: Volento Non Fit Injuria No man can sue for a tort to which he had consented either expressly or impliedly. Example: injuries received in the course of lawful game are not actionable. • Knowledge of risk : to know the nature of the act or work and its extent of danger (risk) • Free consent: Voluntarily consent and free will. - misrepresentation, mistake, coercion, fraud

4. Exceptions of the maxim • Consent to illegal act: against public policy , “no person can license another to commit a crime” (i.e., kicking match, a duel with sharp swords) • Consents of minors or insane persons: Consents of minors or insane persons is generally not regarded as consent. Here the guardian is considered sufficient in the case of minors an insane persons.

5. Exceptions of the maxim 3. Breach of statutory duty: statutory negligence. (i.e. Employer and workman). If the employer commits a breach of statutory duty, he is liable regardless of the consent of employee. But where a workman contravenes statutory provisions and also employer’s orders and thereby causes injury to himself the maxim applies.

6. Application of the maxim • The Maxim volenti non injuria is based on principles of justice and good sense, because a man cannot complain of harm to which he has consented with full knowledge and of his free will.

7. B. Act of God • Act of God (Vis Major or Damnum Fatale) In common parlance it means any act of nature i.e., wind, frost flood, rainfall • But in law it means an unprecedented or extraordinary act from the nature which cannot reasonably be anticipated. (i.e. the banner and the storm) Irresistible event could not have been prevented by reasonable care.

8. C. Inevitable accident • Accident which could not possibly be prevented by the exercise of reasonable care, caution and skill. • The defendant must guard against reasonable probabilities, but is not bound to guard against fantastic possibilities. i.e., car & barking dog, raising the stick. i.e., buses crash to save cyclist

9. D. Mistake When someone commits an error in a wrongly understanding • Mistake of law (i.e., authority, honest belief) • Mistake of fact (i.e., shot goat thought deer) • ‘ignorantiajuris non excusat’ • Except to defense from malice (i.e., mistaken arrest) • The practical joke where someone leads a policeman to arrest him for crime which he has not committed

10. E. Necessity • ‘salus populi supreme lex’: the welfare of the people is supreme law. • Necessity can be successfully pleaded if an injury to a person or his property is necessary to prevent a greater evil. (pull down the firing house to save others) • In Islam: it is permissible using other man’s property to save your self.

11. F. Private defense • Defense of person • Defense of property • Every person has a right to defend his own person, property or possession against an unlawful harm. But in defending, the force used must be in proportion to the apparenturgency of the situation.

12. G. Statutory authority • When statute authorizes the doing of an act, which would otherwise be a tort, the party injured has no remedy except the one (if any) provided by the statute itself. • i.e., municipality actions (demolition of the wall), (security operations)

13. H. Act of state • Act of the state outside its territory cannot be sued in its own courts. This governed by the international law and courts. • Sovereign can not be sued in its own courts for the injury which he has inflicted to a foreign state or its subject

14. I. Judicial acts • If a judge or judicial officer act within his jurisdiction no action lies for acts done or words spoken by a judge in the exercise of his judicial office. • Discussion where this excuse applies in Somali case.