Tort general exception

It contain meaning, definition, of general exception for liability for tort. It also explain different types of such exceptions.

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.
ØTrespass to immovable property,
ØAn obligation imposed by a Statute,
ØWhere 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:
oDestruction of building made ruinous by fire to prevent it falling.
oPulling down of a house to prevent fire spread.
oForcibly feeding a person on hunger strike unto death.
oTo provide medical treatment without consent of a person.
oTo 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.