Q: What are the defences to negligence ?

Ans: The major defences can be raised in an action for negligence viz :

a) Vis Major (Act of God) 

b) Inevitable Accident 

c) Contributory Negligence of the plaintiff 

d) Volenti non fit injuria ( Defences of consent )

e) Express contract (clause for contracting out of negligence; the courts; however, construe such exemption clauses very strictly and

f) Judicial acts, executive acts and statutory authority- in very exceptional and appropriate cases.

(a) Vis Major

Vis Major (or act of God) is such a direct, violent, sudden, and irresistible act of nature as could not, by any amount of human foresight, have been foreseen, or, if foreseen, could not, by any amount of human care and skill, have been resisted. Thus, acts which are occasioned by the elementary forces of nature, unconnected with the agency of man or other cause, will come under the category of acts of God, e.g. storm, tempest, lightning, extraordinary fall of rain/ high tide/ severe frost, etc.

(b) Inevitable accident

The second defence in an action for negligence is that of inevitable accident. Thus, A is lying drunk on a roadway. B approaches in a motor-car round a bend in the road, but just before he reaches the point at which, under ordinary circumstances, he would first see A, a sheet of newspaper is blown by the wind against his windscreen and materially obscures his view. He runs over A, and injures him. Here, A cannot succeed, it being a case of inevitable accident or misfortune.

c) Contributory negligence of the plaintiff:

The third defence to an action for negligence is that of the contributory iable negligence of the plaintiff himself. In certain circumstances a person who has suffered an injury will not be able to get damages from another ation for the reason that his own negligence has contributed to his injury; every person is expected to take reasonable care of himself. Thus when the plaintiff by his own want of care contributes to the damage caused by the negligence or wrongful conduct of the defendant, he is considered to be guilty of contributory negligence.

For example, a pedestrian tries to cross the road all of a sudden and is hit by a moving vehicle, he is guilty of contributory negligence. In this case, the defendant could completely escape his liability for the accident, on account of the plaintiff's negligence which contributed to his injury. Take another case, if the conductor of a bus invites passengers to travel on the roof of the bus, and one of the passengers travelling on the roof hit by the branch of a tree and falls down and gets killed after the driver swerves the bus to the right to overtake a cart, there is not only negligence on the part of the conductor and on the driver's part (who ignored the fact that there were passengers on the roof and tried to overtake a cart) but also contributory negligence on the part of the passengers (Rural Transport Service v Bezlum Bibi AIR 1980 Cal. 165).

d) Volenti non fit injuria

No injury is done to one who consents. Everyone is the best judge of his interest and therefore the one who voluntarily agrees to suffer harm is not allowed to complain for that and one's consent is a good defence against oneself. This is so because the harm voluntarily suffered does not constitute the legal injury. No man can enforce a right, which he has voluntarily waived or abandoned.