Defenses in tort
Introduction
In case of a tort case there are two parties’ plaintiff and defendant. Plaintiff is the person whose rights have been violated and goes to the court seeking remedy. On the other hand, a defendant is a person who has violated the rights of the other person. In general defense, the person who commits wrong is himself wrongdoer and liable for the tort committed by him. Tort is defensible, justifiable and excusable under some circumstances the detail is being provided as under.
Meaning of tort
The word tort has been derived from Latin word “Tortum” which means to conduct
Oxford Dictionary meaning
Tort is a private or civil wrong
Definition of general defense
In civil proceeding of court, the denial of the injured person’s claim by wrong doer is called general defense in tort
General defenses in tort
Following are the general defenses in tort. Details are as under.
Consent
In very limited situations an accused can claim that the victim consented to the accused’s act
For example, you are a spectator of a cricket match , the batsman hits a six, and the ball lands on your head, but you cannot claim compensation either from the stadium authorities or the batsman because when you took a seat in the stadium, you accepted the risks while sitting in the stadium. Because the wrongdoer can prove that the injured person voluntarily put himself in that situation.
Injured person himself wrongdoer
In such a case where an injured person did something wrong which became the reason for his injury? If an injured person did something wrong in this case he cannot claim damages from someone else for the injury.
For example, if a person goes into someone's house and if it is written on the gate that
‘beware of dog', the dog bites him then the injured person enters the house after knowing the risk, as a result he cannot ask for compensation, because he himself is a wrongdoer.
Inevitable accident
When an injury is caused to a person by an accident that can’t be avoided even with reasonable care
For example, if a person accidently injured and something happens that accident can’t be avoided even with reasonable care. After all, how can an injured person blame for someone else for this accident
Act of God
Act of God means an injured person who has accidental injury from an unexpected natural event. Injury caused by natural forces and such natural forces which are unexpected to happen as well as unavoidable by care.
For example if a person who has injury by storm, he cannot ask for compensation to any one and he cannot any legal action in this regard
Acts of state
If an act has been done under the authority of a state that is a valid defense.
For example, if there is a railway line near your house and the noises of the train passing disturbs then you have no remedy because the construction of the railway line is authorized by the state. However, this does not give the authorities the license to do what they want unnecessarily; they must act in a reasonable manner
Private defense
Private defense is a valid defense. Because every individual has the right to protect his life and his property from wrongdoer and during this protection he can use a certain amount of force if necessary. The law of torts recognizes this right and any injury which is caused by the personal protection will not give to legal remedy or compensation
Types of private defense
Private defense is of two types
- Private defense of person
- Private defense of property
Contributory negligence
If a person was injured due to his own negligence, the injured person cannot collect any compensation from another party who supposedly caused the accident. Under this rule, a badly injured person who was only slightly negligent could not win in court against a very negligent person
Mistake
In a mistake, the wrongdoer will have to prove that the wrong done was performed mistakenly. This is not a very valid defense because it is very hard to prove that a wrong done which has been committed by the wrongdoer was purely based on mistake. It will be considered as mistake when genuinely wrong doer does not know the reaction of his action and such act become the reason of injury to other person
Exercise of common rights
Exercise of common rights is a valid defense. If a person is enjoying his legally recognized rights and his usage becomes an injury to others. In such condition the injured person cannot take legal action for any compensation against that person who is using is rights lawfully
Necessity
In necessity, a wrongdoer will have to show that the act he did was necessary under a certain situation. If a wrongdoer succeeds to prove his necessity in this case the wrongdoer will not be sued by the injured person and that is a valid defense.
For example, if a wrongdoer enters into your private land in order to collect water from your well to put out a fire from his house. The level of necessity should be very high. If damage is caused to avoid a greater damage, it becomes a good defense
Objectives of law of tort
The purpose or objective law of tort is the protection of the rights of persons, right of property and right of reputation are included in this law.
The primary objective of the law of tort is to compensate the injured person by the wrongdoer against the violation of his legally recognized right
The secondary objective of the law of tort to build a financial pressure on wrongdoer by taking compensation in the form of money for injured person
The third objective of the law of tort is to stop those who intentionally or negligently violates the right of others
Position in Pakistan
Law of tort has not been a front line subject of our law. Injured persons cannot rely on this law and whenever they want remedy against violation of their rights. This has not been the position in Pakistan alone, many other underdeveloped countries including India show the same picture and law of tort also is not being given importance.
Conclusion
An action which has been performed under lawful provision, it has not been sued by an injured person in any court of law. The law of tort has defined those circumstances where tort is justifiable and excusable. As well as the law of tort does not give permission to anyone to perform unreasonable acts under the statutory provision or in accordance with general defense because such kind of act will be sued by injured person