General defences against tortious liability, lec 02

General defences against tortious liability, lec 02

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  Prepared by: Abdur RahmanKhan Department of Law Bangladesh University of Professionals (BUP) Email: [email protected]
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  JGGGHGH Lecture- 02 General defencesagainst tortious liability
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  Overall Brief RegardingGeneral Defences ❑ https://study.com/academy/lesson/defenses-for-negligence-definition-and- examples.html
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  General Defences ata glance
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  General Defences indetails ❑ After violation of legal right by defendant, Resulting in legal damages, successfully proving the essentials of a tort, The defendant is held liable. ❖ Few exceptions are treated as defences which can help defendant in absolving from liabilities. These are- ❖ Volenti non fit injuria ❖ No man can sue for suffering harm if he had consented expressly or impliedly. ❖Wooldbridge Vs. Sumner Clicking photos during the event, he was severely injured by the defendant’s horse. Defendant was not held liable as the plaintiff himself consented and voluntarily came there to click photos.
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  Continued…. ❖ If consentobtained by coercion, fraud, mistake etc., defendant held liable. ❖ Lakshmi Rajan Vs. Malar Hospital Ltd. A 40 years married woman’s breast got lumps. Consent taken by hospital. During the surgery along with breast’s lumps, her uterus was also removed without any justification. ❖ R. V. Williams Teaching students about singing. During the singing lesson convincing a 16 years old student to give her consent for sexual intercourse to make her a good singer. ❖ R. V. Clarence Having sexual intercourse with his wife knowing that he is suffering from a sexually transmitted disease Gonorrhea, Wife sued the husband for doing so
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  Continued…. ❖ Smith V.Baker Carrying stones by defendant with a crane from one place to another place. During the shift, a stone was felt on the plaintiff & he was injured though he knew the risk & worked under the crane. Negligence from defendant was found there. Exception: Encountering willingly a risk to rescue somebody from an imminent danger created by the wrongful act of the defendant, defence of consent won’t be apt here. ❑ Haynes Vs. Harwood Defendant’s two horses in street. A boy thrown a stone towards the horses and horses started running here and there. This created danger to women and children in the street. Danger prevented by police. He was injured for doing so.
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  ❑When plaintiff isthe wrongdoer ❑ From an immoral cause, no action arises.Derived from the maxim ex turpi causa. if the plaintiff himself is engaged in the wrongful act, can’t recover damages. ❑ Bird vs. Holbrook [ (1828) 4 Bing. 628] ❑ Set a spring gun trap by defendant in his garden to protect his property. The spring gun trap injured Holbrook (Plaintiff) innocent trespasser. Plaintiff sued the defendant and claimed for damages. ❑Inevitable Accident ❑ Unexpected injury. Despite exercising due care with diligence and ordinary prudence by a person, not to foresee or avoid accident. ❑ Stanley vs. Powell [1891] 1 QB 86 (QBD)]
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  Continued… ❑ Case note:During focusing on a pheasant by defendant, a member of the party fired but the bullet hit the branch of the tree that altered its direction and accidentally wounded the plaintiff. ❑ Brown Vs. Kendall ❑ Case note: Plaintiff’s and Defendant’s dogs were fighting. Defendant threw a stone in attempt to isolate them but that stone accidentally hit plaintiff standing nearby. ❑ Shridhar Tiwari V. UP State Road Transport Corporation (SRTC) ❑ Case note: Bus of up brtc was passing through a village, suddenly a cyclist came on the road, to save him bus driver applied brakes. But due to wet roads, it slipped & collided with another bus.
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  ❑ Act ofAllah ❑ Extra ordinary occurrence not foreseen and guarded against, natural cause. ❑ Nichols v. Marshland [ (1876) 2 EXD 1] ❑ The natural stream of a river had been dammed up. An extraordinary rainfall came and broke the embankments and water escaped and destroyed 4 country bridges. ❑ Ramalinga Nadar vs. Narayana Reddiar ❑ Plaintiff had booked goods with the defendant for transportation. The goods were looted by a mob, the prevention of which was beyond control of defendant. ❑ Kallulal Vs. Hemchand ❑ Rainfall led to collapsing of defendant’s wall when there was a rainfall of 2.66 inches. In this incident plaintiff lost his2 children.
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  ❑Private defence ❑ Usingof reasonable force to protect one’s property or oneself. Not to be liable. Imminent threat, The using force should be proportionate. ❑ Morris vs. Nugent ❑ Defendant was passing by a house, plaintiff’s dog came and bit him. As soon as the ran away, defendant shot the dog anyway. ❑ Ramanuja Mudall vs. M. Gangan AIR 1954 ❑ Defendant had laid some live electric wire on his land without showing any visible warning. While crossing it to reach his land, received an electric shock. ❑ Creswell Vs. Siri Defendant shot plaintiff’s dog during chasing his herd of sheep. No other means was there to stop the dog at that time, So, defendant shot the dog.
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  ❑ Mistake ❑ Mistakeof fact or law, is not a defence in general. When a person carefully interferes with the rights of another person, it is no defence to say that he had honestly believed that there was some justification for the same. ❑ Consolidated Co. v. Curtis [(1894) 1 Q.B. 495] ❑ An auctioneer was asked to auction certain goods by his customer honestly believing that the goods belonged to the customer. He auctioned them and he paid them to the customer. In fact, the goods belonged to the other person. ❑ Necessity ❑ Necessary attempt for welfare of people is supreme law. To avoid or prevent a great loss or harm, a defendant can cause lesser harm that is justified. ❑ Cope v. Sharpe [(1891) 1 K.B. 496]
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  Continued… ❑ Case note:Committing trespass to land, Defendant entered plaintiff’s land to prevent the spread of fire, adjoining land his master had shooting rights. ❑ Carter vs. Thomas [(1891) Q.B. 673] ❑ Committing trespass to land, defendant entered the plaintiff’s premises in good faith to extinguish a fire at which the fireman had already been working. ❑ Krik vs. Gregory [1891] 1 K.B. 496 ❑ After A’s death, A’s sister in law removed the jewellery items with trespass to jewellery and kept them in another room. Jewellery was stolen by robber. ❑ Vincent vs. Lake Erie Transportation Co, 124 N.W. 221 (Minn. 1910) ❑ a steamship was moored at Vincent’s dock to unload cargo. During storm ship was secured to dock causing $500 in damage.
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  ❖Statutory Authority ❖ Damageresults from the act, which the legislature authorizes or directs to be done, is not actionable claim. Here injured party has no remedy except for claiming such compensation provided by the statute. ❖ Hammer Smith Rail Co v. Brand (1869) L.R.H.L. 171 ❖ The value of the plaintiff’s property had considerably depreciated due to the noise, vibration and smoke caused by the running of trains in a railway constructed under statutory powers. No claim, despite damage was caused. ❖ Smith vs. London and South Western Railway Co. [(1870) L. R 6 C. P. 14] ❖ Servants of a Railway Co. negligently trimmed grass to protect a railway line. Sparks from an engine set the material on fire. By a heavy wing, the fire was carried to the plaintiff’s cottage, 200 yards away from the railway line. The cottage was burnt.
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  Question Answer Session
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  To get fullsheets, pdf or hard copy or learn to me: Name: Abdur Rahman Khan LL.B (Hons) (4th year), BUP Email: [email protected] Phone: 01782 760964/01798 438184 Address: Mirpur- 02, Dhaka - 1216