Plaintiff, the Wrongdoer : General Defences in Tort

One of the principles of equity is that a party who wants some relief must go to the court with clean hands. However, it is doubtful whether the defendant can take such a defence under the law of torts and escape liability by pleading that at the time of the defendant’s wrongful act the plaintiff was also engaged in doing some wrongful act.

According to Sir Frederick Pollock when the plaintiff himself is a wrongdoer he is not disabled from recovering in tort “unless some unlawful act or conduct on his own part is connected with the harm suffered by him as part of the same transaction. For example as stated by Dr. R.K. Bangia in ‘The law of Torts’ a bridge, under the control of the defendant, gives way when an overloaded truck, belonging to the plaintiff, passes through it. If the truck was overloaded contrary to the warning notice already given and the bridge would not have given way if the truck was properly loaded, the plaintiffs’ wrongful act is the determining cause of the accident. In such a case even if the bridge was not properly maintained, the plaintiff’s action will fail. On the other hand, if the wrongful act of the defendant and not of the plaintiff is the determining cause of the action, the defendant will be liable. In the above illustration, if the bridge had been so ill-maintained that it would have given way even if the truck had been properly loaded, the plaintiff’s action will succeed. Thus, if the plaintiffs being a wrongdoer is an act quite independent of the harm caused the defendant cannot plead that the plaintiff himself is a wrongdoer.

In Bird v Holbrook (1828) 4 Bing. 628, held that the trespasser on the defendant’s land is entitled to claim compensation for the injury caused by spring guns set by the defendant without notice in his garden. If the owner of the house deliberately throws stones on a trespasser to his land he will be liable for the throwing of stones although he can bring action against the trespasser for the trespass.

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