There are certain justifications which point to a particular wrong or to certain class of wrong. There are justifications which are common in all kinds of wrongs and to prevent repetition of these under every wrong they are collectively treated. There are certain justifications which when present will prevent an act from being regarded as wrongful.
The object and scope of this paper is confined to “inevitable accident” and “private defence”
In Inevitable accident the defence requires the defendant to prove that conditions beyond personal control occurred, and that an accident could not have been avoided, even with great skill and care. But there is a distinction. Accidents happen because of two basic reasons, one role of humans was present but the accident occurred without any influence from nature and in the second case accident happened due to forces of nature without human intervention.
Two examples can be given. In the first case plaintiff was bitten by the defendant’s dog while he was attending a birthday party and in the second case the aeroplane crashes due to a cyclonic storm. In the second case it is an act of god.
In case of private defence it means protection of ones property, relatives and family members under him. the force must be reasonable, proportionate. Force should be used for prevention of injury and not redressal.
Apprehension is good enough for private defence. An animal may be shot where it is posing an imminent threat but when the dog is running away or outside the scope of being considered as a threat then if one shoots the dog then it is a legal offence.
There are 3 chapters. They are inevitable accident, relationship between inevitable accident and inevitable mistake, private defense and its relation with necessity. The questions are---- is inevitable accident same as inevitable mistake? Is act of god distinct from inevitable accident? Necessity and private defense, are they interrelated?
1) Inevitable Accident.
The plea of inevitable accident is spoken of a defense but it is not a defense but only a denial of liability. Accident means unexpected injury and if the same accident could not be foreseen and avoided inspite of reasonable care on the part of the defendant , then it is inevitable accident. Pollock in his book ‘Law of torts’ 15TH ed, 97 says “it does not mean absolute inevitable, but it means not avoidable by any such precaution as a reasonable man, doing such an act then and there, could be expected to take”.
It is a good defense if the defendant can prove that he did not intend to cause harm to the plaintiff as well as could not avoid the injury caused by talking reasonable care. Lets say in case of bodily harm plaintiff has to prove the intend or negligence of the defendant and if he fails to prove it then it may be considered to be an inevitable accident. These accidents are not caused intentionally and could not possibly have been avoided through exercise of ordinary care and caution on the part of him who causes it. In the words of chief justice Shaw of Massachusetts Supreme Court: “Inevitable accident is an accident such as the defendant could not have avoided by the use of kind and degree of care necessary to the exigency and in the circumstances he was placed”. If in prosecution of a lawful act, done with care, such an accident happens, no action lies from ant injury resulting there from. For instance suppose a man rides a horse but while the horse is running he sees a snake and gets frightened, due to which the horse injures a boy who was selling hotdogs beside the road, though the the person riding on the horse took necessary care. It is an inevitable accident. It means an accident physically unavoidable.
Greene, M.R., an accident is “One out of the ordinary course of things, something so unusual as not to be looked for by a person of ordinary prudence”
Inevitable accident may be divided into two classes 1) those which happen by the elementary forces of nature unconnected with the agency of man or other causes which is act of god. In act of god defendant says ‘It was nothing to do with me’. Act of god is a defense where mare absence of fault is no defense. It is the operation of natural forces beyond the control of humans. 2) Accidents that have its origin in the actions of humans, whether in acts of commission or omission which is act of man. For e.g. an aeroplane flies normally but the co-pilot suffers from a massive heart attack. The other pilot looses control and had a crash landing. It is indeed an inevitable accident but it is an act of man. This paragraph explains the question ‘Is act of god distinct from inevitable accident?’
Cockburn, C.J. said “All causes of inevitable accident, casus fortuitus, may be divided into two classes, those which are occasioned by the elementary forces of nature unconnected with the agency of man or other cause, and those which have their origin either in the whole or in parts in the agency of man” when a ship is brought ashore by a storm then it is an act of god. But if it runs ashore due to fog by mistake of the captain then it is an act of man. Suppose a building is set by fire due to lightening then it an act of god but if the cause of the fire is faulty electric wires then it is an act of man. When a ship is case away in a storm, because the owner has send his, ship to the ocean it is his fault but actually in the eyes of law, the accident is an act of god and not act of man. Lord Blanesbrugh spoke about act of god “an irresistible and unsearchable providence nullifying all human efforts”. Bramwell, B. remarked about an extraordinary storm in the decision of Ruck v Williams, 1858 H and N 308: “We call it extraordinary but in truth it is not an extraordinary storm which happened once in a century, or in fifty or twenty years: on the contrary it would be extraordinary if it did not happen. There is a saying “there is nothing so certain as that which is unexpected”, “nothing so certain as that which is unexpected”. This defense also depends on the geographical location of a particular country. In case of India, heavy rains is a regular thing during the monsoons so it may be considered natural but if such magnitude of rainfall happens in African countries then it may be considered unnatural and thus defense of act of god may arise. In Greenock Corporation v
In this case the court said “Assuming an act of god such as flood wholly unprecedented, the damage in such a case results not from act of god, but from the act of man in that he failed to provide (as there was before) a channel sufficient to meet the contingency of the act of god. But for the act of man there would have been no damage from the act of god”.
The defense of inevitable accident is relevant in actions for trespass when the old rule was that even a faultless trespassers contact was actionable, unless the defendant could show the accident is inevitable. It was long held that burden of proof in trespass to the person rested with the defendant and trespass opened a scope to the defense of inevitable accident, but it is now held that burden of proof is with the claimant. In case of trespass and negligence, inevitable accident has no place. In these cases inevitable accident is irrelevant because burden of proof is on the claimant to establish the defendants negligence.
Brief case studies.
The defendant and the plaintiff were members of a shooting party. The bullet shot by the defendant properly glanced off a tree almost at right angles and injured the plaintiff. It was held that the accident is an inevitable accident. It is a case of act of man.
National Coal Board v Evans (1951)
A case of trespass to chattel, inevitable accident is a good defense. The plaintiff’s predecessors had laid electric cable under the land of a county council without their knowledge. County council employed some contactors to make an excavation in the process damaged the cables. It was held that it was the fault of the plaintiff that they wrongfully did this without the permission of the county council so will not be eligible for compensation. This is a case of act of man.
Nitroglycerine case (1872) 15 Wall 524.
The defendant, a firm of carriers, was given a wooden case to carry from one place to another. Some persons detected some leakage and box was opened when it exploded and the office building belonging to the plaintiff was damaged. It was held that since the defendant could not foresee the contents of the box and its explosive nature they were not liable for damages caused by the accident. This is a case of act of man.
Holmes v Mather (1875) LR 10 Ex 261.
A person was walking by the side of the road when he was knocked by a pair of horses which suddenly went out of control though the defendant tried his best to control it. It was held that it is an inevitable accident and the defendant is not liable as he took necessary care of controlling that horse. It is a case of act of man.
Ryan v Young (1933) 1 ALL ER 522.
While driving a motor vehicle the driver suffered from a heart failure and died which caused an accident. It was held that this accident is a mere inevitable accident and plaintiff is not eligible for compensation.
Nichols v Marsland (1875) LRR 10 Ex 255.
The defendant constructed a series of pools and artificial reservoir on his own land which was adequate and can be considered as normal use. But due to an unnatural violent cyclone the reservoir bursted its banks and destroys the plaintiff’s bridges. It was held that it is an act of god as such an exceptional storm was not expected.
The state constructed a reservoir for supply of drinking water for some villagers. The overflow channels were partially constructed thus during heavy rains the channel overflowed causing damage to the plaintiff’s crops. It was held that it was an act of god as well as the act of state. In my opinion it is a negligent act on the part of the state. If the construction would have been made properly then the plaintiff would have suffered lesser losses. The plaintiff should get compensation from the state. This case should not be categorized under inevitable accident. The Bombay High Court rejected the plea of act of state saying that act of construction of a reservoir can be considered as an welfare actins not an act of state done in exercise of sovereign power. An act of state relating to law and order situated is different from an alleged act of state pertaining to a welfare project.
Is inevitable accident same as inevitable mistake?
As Salmond observes (15th Ed., p40) inevitable mistake must be distinguished from inevitable accident.
“The plea of inevitable mistake is that, although the act and its consequences were intended, the defendant acted under erroneous belief, formed on reasonable grounds, that some circumstances existed which justified him. The plea of inevitable accident is that the consequence complained of as a wrong were not intended by the defendant and could not have been foreseen and avoided by the exercise of reasonable care and skill”
A well known maxim ‘ignorantia juris non excusat’ which means ignorance of law is no excuse, ignorance may be either of law or fact. Here ignorance of law and fact are two distinct entities. One of them is applicable when it comes to inevitable accident. If a person is ignorant of that he has won a prize is ignorant of fact but if he does not know about his own rights then it may be considered that he is ignorant of law. Every man is supposed to know the law. Every man is presumed to be congnisant of the law of his realm and to construe it alright; and if an individual infringes it though ignorance, he must nevertheless abide by the consequence of his error. Nobody knows if one knows law or tried earlier to know the law of the land. It is difficult to know the state of mind of person so to avoid any difficulty into the inscrutable conditions of mind; law has made it a basic principal that ignorance of law is no excuse.
But mistake of fact is a good defense in criminal law. This case (Foster, 265 KGG 27) is a good e.g.
The plea on inevitable accident is that the consequence complained as a wrong was not intended by the defendant and could not have been foreseen and avoided by reasonable care. The plea of inevitable mistake that although the act and its consequence were intended the defendant acted under a wrong belief formed on reasonable grounds that some circumstances existed which justified him. Such a mistaken belief in justification however reasonable is not in itself justification. A contractor sells A’s furniture’s in honest and reasonable belief that thinking that it belongs to B’s who is A’s brother on whose instruction he sold them. Contractor will be held liable to A. The act and its consequences were intended, the contractor acted under erroneous belief. So it is a pure case of inevitable mistake. But in the case Foster, 265 KGG 27 both pleas will work as it is a case of both inevitable accident and inevitable mistake.
Two e.g. will explain this.
A man before going to the church fires off his gun & lefts it empty. During his absence some other people took that gun and went out for shooting and returned the gun loaded. The owner later took the gun and thinking that the gun is empty mistakenly pulls the rigger and kills his own wife who was in the same room. In this case (Foster, 265 KGG 27) both pleas will work. The harm was not intended by the owner and the act of pulling the trigger was intended but the owner acted under a wrong belief as he thought the gun to be empty.
If one has a tree ten feet away from the neighbor’s boundary wall and the owner of the tree mistakenly thinks the neighbors land is mine and cuts the tree which hen falls on the neighbor’s land then it is a mistake where no plea will apply but it he knows everything and takes reasonable so that the tree does not on the neighbor’s land but if it still falls then it is an inevitable accident and not an inevitable mistake.
In special cases mistake of fact is a good defense.
Mistaken prosecution of an innocent man is not in itself an actionable wrong; for such a rule would effectively prevent the administration of the criminal law. A prosecutor incurs no liability unless he acted both maliciously and without reasonable care. It is an inevitable mistake that although the act and its consequence were intended the prosecutor acted under a wrong belief formed on reasonable grounds that some circumstances existed which justified him. It is an inevitable accident that the consequence complained as a wrong was not intended by the prosecutor and could not have been foreseen and avoided by reasonable care.
Mistaken arrest of an innocent man on suspicion of felony is not actionable, if the felony has been actually committed and if there is reasonable ground for believing that the person arrested is guilty of it. It is an inevitable mistake that although the act and its consequence were intended (arrest) the police acted under a wrong belief formed on reasonable grounds (suspicion of felony) that some circumstances existed which justified him. It is an inevitable accident that the consequence complained as a wrong (Mistaken arrest of an innocent man) was not intended by the police and could not have been foreseen and avoided by reasonable care.
So in some cases both inevitable mistake of fact & inevitable accident may apply but this does not necessarily mean they are same.
Harm inflicted in defense of one’s person, property is justified if it is reasonably necessary. It includes defense of one’s own property, life, but also people close to you like one’s family. Force used must be reasonable and proportionate to the force applied. Moreover force used for prevention of injury and not reprisal. Apprehension is good enough for private defense. Every man has the right to defend himself when it is urgent. The person may not have to wait till he gets a blow from someone else. He may strike before that. But one is not justified in using sword to repel a blow. But if the person is attacked with a deadly weapon, he can defend himself with any weapon. “When a man strikes at another within a distance capable of the latter being struck to resist it, and he is justified in using such a degree of force as will prevent a repetition”. But in case of verbal provocation blow is not justified. The person on the defensive can use as much force as is reasonably necessary.
In case of private defense necessity has to be proved. In case of defense of property the property has to be possessed by the person. It means that if a person is staying in a house on rental then he has the right to defend the property in which he is staying. The owner also has such right but he must be in possession of the property. A person who does not have possession of the land may use reasonable force against persons who obstruct him in carrying out his own duties. In case of trespass one must use reasonable force. One must not use deadly dogs, spring guns to protect his property. If such measures are used then the plaintiff or the injured may get compensations. The principal of private defense extends to killing of other animal if it is reasonably necessary in order to save his property, life and his animals. Killing is justified if the defendant proves that the animal (as well as humans) was attacking, damaging his property, imminent risk of such attack or damage & there was no means other than shooting, or stopping the injury from being committed. In case of injury to third party private defense may apply if the defendant can prove that he acted under that he did not mean to harm, was not negligent and he acted merely under self defense. He may also rely on defense of necessity. Sec 96 IPC says “Nothing is an offence which is done in exercise of the right of private defense”. Private defense may be regarded as a species of self help or self-redress. When a person trespasses into ones house and use derogatory methods then one can repeal the attack by using reasonable force against him to preserve oneself but later one may also go after him and retake from him the goods stolen. The former is private defense and the later is self help. The person are allowed to repel force by force, not for the redress of injuries but for their prevention, not in order to undo a wrong done or to get compensation for it but to cut wrong short before it is done; & the right goes only to the extent necessary for this purpose.
Brief case studies.
Holmes v Bagge.
The claimant and the defendant were both members of a cricket club. During the match defendant asked the claimant a spectator to act as a substitute for one of the players. But during the match the defendant rudely asked the claimant to remove his coat which he refused. The claimants neither removed his coat nor leave the field. The defendant forcefully removed the claimant. The defendant when sued for assault pleaded possession of ground but the plea was rejected as the possession of land was in the committee of the club.
Scott v Shepherd. (1773) 2 W & B L 892.
A threw a lighted squib into a crowded market. It fell upon a stall of B. C a bystander to prevent injury to himself takes and throws it away. It fell in D’s
Stall who inturn threw it away which exploded on the face of E and blinded his one eye. In such case the intermediate involuntary agents who acted under right of private defense are not liable. The judges decided that even if action has been bought against them they would not have been liable for they acted “under a compulsive necessity for their own safety and self-preservation”
Cook v Beal. (1697) Lord Raym 176.
In this case A strikes B, B draws his sword and cuts the head of A. This will not come under private defense as B used unreasonable force.
Bird v Holbrook. (1821) 4 Bing 628.
Defendant set some spring guns on his garden because his flowers were stolen from his garden. The plaintiff a boy did not knew the existence of spring guns entered the garden in search of his fowl got injured. The defendant was held liable as he used unreasonable methods to protect his land.
Necessity and private defense, are they interrelated?
This defense (necessity) may be presented by a defendant in cases where action has been undertaken out of necessity for public or private good, such as to save a life. Such actions often involve trespass on another's property, or even damage to their goods, but under the circumstances, were necessary.
E.g. A car accident late at night causes several serious injuries requiring immediate ambulance assistance. One of the victims breaks the window of a nearby gas station to use their phone to call 111.
Necessity is such a defense that it is widely applicable under different heads, e.g., executive and military authority and in case of private defense.
Here is one idea where necessity and private defense can be interrelated.
The defense is available if the act complained of was reasonably demanded by the danger or emergency. (Pollock, torts 15th ed p 122)
In this case there is an immediate threat of danger and it’s reasonable to defend oneself. Every man has the right to defend himself when it is urgent. Acts of defense of oneself or another in a sense falls under necessity. The common link between necessity and private defense is “defendants conduct has to be reasonable in the circumstances”. The plea of necessity will succeed if the defendant can show that his that his act is reasonably necessary to prevent harm to a third party like say for e.g. family or strangers which comes under private defense. In case of third party the case Scott v Shepherd. (1773) 2 W & B L 892 clearly explains it. Necessity is a defense when it comes to trespass. This is also applicable when it comes to trespass of fierce animal, robbers, thief’s etc. A person who does not have possession of the land or who has may use reasonable force against persons who obstruct him in carrying out his own statutory rights. In case of trespass one must use reasonable force. The test is same for actions in defense of persons and property, if it is reasonably necessary in the circumstances but application is different in two cases. Devlin. J said “The safety of human lives belong to different scale of values from the safety of property. The two are beyond comparison and the necessity of saving life has at all times been considered a proper ground for inflicting such damage as may be necessary upon another’s property” in case of private defense attack, apprehension, threat are important. In case of necessity attack, apprehensions, threats are not the conditions.
Act of defense itself falls under private defense. Private defense presupposes some kind of attack or threat against the person acting in defense, while necessity does not; and in case of self defense it would usually be the case that the plaintiff is in wrong himself. Acts of private defense is itself a necessity when it comes to trespass. Private defense is available against one self but necessity is available against the public at large. Acting in the public interest can itself be a necessity but such rights are not available when it comes to private defense. Necessity is the macro aspect of private defense and private defense is a micro aspect. In case of private defense necessity has to be proved.
An accident is not an Act of God unless it is the direct result of natural cause without human intervention, although this does not mean that human activity is completely absent.
An Act of God need not necessarily be violent or exceptional to be an Act of God. If the harm could not be prevented by human care then it is called an act of god. In my opinion Act of God should be called Act of Nature as natural forces works on it and it has no relation with God.
In case of private defense, necessity has to be proved. “So, too, if a man makes an assault upon me & I am not able to avoid him, but he wishes to beat me and I in defense of myself raise my stick to strike him, and one is at my back, and in raising my stick I hurt him, in this case he will have an action against me, and yet the raising of my stick was lawful in defense of myself and I hurt him against my will” Brain CJ in ‘The Case of Thorn’ (1466) YB 6 Ed. F7 pl 18.
A.Lakshminath, M.Sridhar. Law of Torts.939-943,959-960.Lexis Nexis.1932.
Winfield, Jolowicz. Winfield, Jolowicz on torts. 1086-1097. Sweet & Maxwell.1937.London.
Ratanlal, Dhirajlal. The law of torts. 65-93.Wadha.1897.Delhi.
Dias & Markesinis. Tort laws. 490-493, 505-521. Clarendon press.1989
Durga Das Basu. The Law of Torts. 51-72. Kamal law House.1982. Kolkata.
R.K.Bangia. Law of Torts. 50-62.
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