Defenses for Tort of Negligence

 Defenses for Tort of Negligence

            Following are the defenses for the tort of negligence.

A. Act of God

Act of God includes those consequences which are occasioned by elementary force of nature unconnected with the agency of man. Common examples of Act of God are the falling of a tree, a flash of lightening, a tornado or a flood.

The essential conditions of this defenses are,

(1) the event causing damages was the result of natural forces without any intervention from human agency, and

(2) the event was such that the possibility of such an event could not be recognized by using reasonable care and foresight.

Nicholas v. Marshland

In this case the defendant constructed an artificial lake. Due to the heavy rainfall in one night the water flooded over the lake and washed out the three Bridges of the plaintiff. Consequently the plaintiff filed a suit against the defendant, but the defendant took the defense of act of God and he was succeed in his claim.

B. Inevitable Accident

All recent authorities support the view that  'inevitable  accident’ “negatives  liability.  An 'inevitable accident' is that which could not possibly be prevented by the exercise of ordinary care,  caution  and  skill.  It means  an  accident  physically  unavoidable.  It  does  not  apply  to Anything which either party might have avoided. It is an accident such as the defendant could not have avoided by use of  the kind and degree of care necessary  to  the exigency, and  the Circumstances,  in which he was placed. If  in  the performance of a  lawful act, done with all due care, damage ensues through some unavoidable reason, such damage affords no cause of action. "People must guard against reasonable probabilities, but they are not bound to guard against fantastic possibilities.

C. Contributory negligence

All  recent  authorities  support  the  view  that  'inevitable  accident’ “negatives  liability.  An 'inevitable accident' is that which could not possibly be prevented by the exercise of ordinary care,  caution  and  skill.  It means  an  accident  physically  unavoidable.  It  does  not  apply  to anything which either party might have avoided. It is an accident such as the defendant could not have avoided by use of  the kind and degree of care necessary  to  the exigency, and  the circumstances,  in which he was placed. If  in  the performance of a  lawful act, done with all due care, damage ensues through some unavoidable reason, such damage affords no cause of

action. "People must guard against reasonable probabilities, but they are not bound to guard against fantastic possibilities.

Harris v. Toronto Transit Commission

In the case the boy was in the bus while he was projecting his hand out of the window he sustained injury from the coming vehicle. The driver warned him repeatedly but the boy failed to evict his hand from the window. Plaintiff filed the suit for the tort of negligence, but the defendant took the defense of contributory negligence and he was succeed.

1. Last opportunity rule

By this rule the person who is having a later opportunity to avoid the accident is liable for the tort of negligence. This principle is originated from the defense of contributory negligence.

Davis v. Mann

In this case the plaintiff tied the four feet of the donkey and left it on the narrow highway. The defendant while driving his two wheeler very fast dashed the donkey and donkey died. The owner of the donkey filed a suit against the motor cyclist. The motor cyclist took the defense of contributory negligence but the court applied the principle of last opportunity rule and held liable to the motor cyclist because he was having a later opportunity to avoid the accident by applying the brake. 

2. Apportionment of Damages

According to this principle the liability of the defendant and the plaintiff will be decided in percentage, and according to the percentage of negligent act of the defendant the court award  compensation to the plaintiff.

Vidya Devi v M. P. Road Transport Corp.

D. Exception to the defense of Contributory Negligence.

            The defense of contributory negligence cannot be alleged in the following cases.

I. Doctrine of alternative danger.

            There may be certain circumstances when the plaintiff is justified in taking some risk where some dangerous situation has been created by the defendant. The plaintiff might become nervous by a dangerous situation created by the defendant and to save his person or property, he may take an alternative risk. If in doing so, the plaintiff suffered any damage, he will be entitled to recover from the defendant.

Jones v. Boyce (1816) – The plaintiff was a passenger of defendant’s coach. The coach was driven so negligently that the plaintiff jumped off the bus fearing an accident and broke his leg. It was held that the plaintiff would be entitled to recover.

II. Contributory negligence by child.

            The defense of contributory negligence cannot be taken against the child. Because the care which is expected in case of child is different as expected in case of major.

III. Presumption that others are careful.

            The defense of contributory negligence cannot be taken if the presumption is that the others are careful.

Conclusion.

            When the person is having a duty to take care and care not taken his liability will arise for the tort of negligence. But the defendant can avoid his liability if his act comes under any of the above defenses.