LAW OF TORTS ASSIGNMENT

DATE: 25/09/2018

GENERAL DEFENCES
AGAINST TORTIOUS
LIABILITY

FACULTY OF LAW BBA LLB 1st YEAR

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 ACKNOWLEDGEMENT
BLANK

INDEX

Sr. No. Name Page No.

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 3 Volenti non fit 6
injuria
4 Plaintiff, the 8
wrongdoer
5 Inevitable Accident 9
6 Act of God 10
7 Private Defence 11
8 Mistake 12
9 Necessity 13
10 Statutory Authority 14
11 Conclusion 15
12 References 16

EXECUTIVE SUMMARY

A Tort is a civil wrong where a legal right vested in someone is injured. It is neither a breach
of trust, nor a breach of contract and is redressable in the form of unliquidated damages. A
tort has 3 prerequisites or essentials. For a civil wrong to be called a tort, it must qualify these
essentials.
The essentials are:

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1. There should be a wrongful act/omission on the part of a person.
2. The wrongful act/omission must result in infringement of legal rights of another person.
3. Legal remedy for the wrongful act/omission.1

In order to avoid liability in a tort, the defendant may take up some defences which help him
avoid the liability. He can take these defences only when a set number of conditions or
prerequisites have been met. Using these defences, he can avoid liability even if the plaintiff
was injured.

This assignment will deal with these general defences available to the defendant which help
him avoid his tortious liability. The general defences will be expounded, and precedent cases
and other examples will be quoted along to help one fully understand these defences.

INTRODUCTION

Before we can proceed to evaluate the circumstances in which a defence can be used in any
tort case it is absolutely essential to understand what the word “defence” means. The word
“defence” bears several meanings in the tort context and a great deal of confusion has been
spawned of a general failure by courts and commentators to make their intended meaning
clear. Although conventionally the word defence is used to refer to those arguments which
when used persuades the court to conclude that the defendant in a case is not guilty. So, they

1
Dr. R.K. BANGIYA, Law of Torts, 4 (ALLAHABAD LAW AGENCY) 2017.

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basically include “absent element defences” which are denials of the components of the tort
that the plaintiff has allegedly committed.
General defences are a set of defences or ‘excuses’ that you can undertake to escape liability
in tort only if your actions have qualified a specific set of conditions that go attached with
these defences, when the plaintiff brings an action against defendant for a particular tort,
providing the existence of all the essential of that tort the defendant would be liable for the
same. The defendant may, however, even in such a case, avoid his liability by taking the plea
of some defence.
There are some specific defences which are peculiar to some particular wrongs, for example,
in an action for defamation, the defences of privilege, fair comment or justification are
available. There is some general defence which may be taken against the action for a number
of wrongs. For example, the general defence of ‘Consent’ may be taken, whether the action is
for trespass, defamation etc.2
The general defences available are:
 Volenti non fit injuria, or the defence of consent

 Plaintiff, the wrongdoer

 Inevitable accident

 Act of God or vis major

 Private defence

 Mistake

 Necessity

 Statutory authority

VOLENTI NON FIT INJURIA

When a person consents to the infliction of some harm upon himself, he has no remedy for
that in tort. In case, the plaintiff voluntarily agrees to suffer some harm, he is not allowed to
complain of that and his consent serves as a defence against him. No man can enforce a right
which he has voluntarily waived or abandoned3. For example, if you invite somebody to your

2
GENERAL DEFENCES – DEFENCE AGAINST TORTIOUS LIABILITY, https://www.legalbites.in/general-
defences-defence-against-tortious-liability/ , accessed on 23 September 2018, 5:00 PM.
3
Salmond, Torts, 14th ed, p. 47

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house, you cannot sue him for trespass, nor can you sue the surgeon after submitting to a
surgical operation because you have expressly consented to these activities.
It is to be noted that the consent can be either expressed, i.e. through words, or it can be
implied, i.e. through actions, as in the case of Hall v. Brooklands Auto Racing Club4. In this
case, the plaintiff was a spectator at a motor car race being held at Brooklands on a track
owned by the defendant company. During the race, there was a collision between two cars,
one of which was thrown among the spectators, thereby injuring the plaintiff. It was held that
the plaintiff impliedly took the risk of such injury, the danger is inherent in the sport which
any spectator could foresee, the defendant was not liable, thus succeeding in applying the
defence of Volenti non fit injuria. Similarly, a person going to a football match cannot sue
someone if the ball hits him, since he has consented to willingly take this risk through his
actions.
For the defence to be available, it is necessary to show that the plaintiff’s consent to the act
done by the defendant was free. If the consent of the plaintiff has been obtained by fraud or
under compulsion or under some mistaken impression, such consent does not serve as a
good defence. Moreover, the act done by the defendant must be the same for which the
consent is given5. In order to take this defence, two more prerequisites must be met:
1.The plaintiff knew the risk and the extent of it.
2. He/she willingly agreed to take the risk.
Mere consent is not sufficient, and one should also know the extent of the risk, as in the case
of Smith v. Baker6 the plaintiff was a workman employed by the defendants on working a
drill for the purpose of cutting a rock. With the help of a crane, stones were being conveyed
from one side to the other, and each time when the stones were conveyed, the crane passed
from over the plaintiff’s head. While he was busy in his work, a stone fell from the crane and
injured him. The employees were negligent in not warning him at the moment of a recurring
danger, although the plaintiff had been generally aware of the risk. It was held by the House
of Lords that as there was mere knowledge of risk without the assumption of it, the maxim
volenti non fit injuria did not apply and the defendants were liable since knowledge of risk is
not the same as consent to it. A corollary of this principle is “Scienti non fit injuria” which
means that only knowledge of the risk is not enough to claim defence there must be
acceptance to undergo the resultants of the risk undertaken.

Exceptions to this defence are rescue cases, as in the case of Haynes v Harwood7, the
defendant left a horse-drawn van unattended in a crowded street. The horses bolted when a
boy threw a stone at them. A police officer tried to stop the horses to save a woman and
children who were in the path of the bolting horses. The police officer was injured. It was
held that the defendant owed a duty of care as he had created a source of danger by leaving
his horses unattended in a busy street.

4
(1932) All E.R. Rep. 208 : (1932) 2 K.B. 205.
5
Dr. R.K. BANGIYA, Law of Torts, 30 (ALLAHABAD LAW AGENCY) 2017.
6
(1891) A.C. 325
7
(1935) 1 K.B. 146.

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Unfair Contract Terms Act, 1977 limits the right of a person to restrict or exclude his liability
resulting from his negligence by a contract term or notice.8

PLAINTIFF THE WRONGDOER

The law excuses the defendant when the act done by the plaintiff itself was illegal or wrong.
This defence arises from the Latin maxim “ex turpi causa non oritur action”9 which means
damages cannot be recover for an act or conduct by which plaintiff himself is a wrongdoer.
So, an unlawful act of the plaintiff itself might lead to a valid defence in torts. This maxim
applies not only to tort law but also to contract, restitution, property, and trusts. Where the

8
Dr. R.K. BANGIYA, Law of Torts, 40 (ALLAHABAD LAW AGENCY) 2017.
9
Godbolt v. Fittock, S.R. (N.S.W.) 617 (1963).

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maxim is successfully applied it acts as a complete bar on recovery. It is often referred to as
the illegality defence, although it extends beyond illegal conduct to immoral conduct. 10
In Bird v Holbrook11, Holbrook owned a tulip garden a mile from his home. The garden area
contained a summer house in which Holbrook and his wife frequently slept. Holbrook’s
garden was robbed, and several valuable tulips and bulbs were stolen. After this incident,
Holbrook set up a spring gun to guard against trespassers in the garden. No notice of the
spring gun was posted in the garden. Bird, a nineteen-year-old boy, innocently entered
Holbrook’s garden to chase after an escaped pea fowl. He did not know the spring gun was
there and accidentally set it off. Bird suffered a severe wound above his knee and brought suit
against Holbrook to recover for his injuries.
In the case Pitts v. Hunt12, a rider, 18 years old encouraged his friend, 16 years old to drive
recklessly at a high speed after they both had been drunk. The motor bike met with an
accident resulting in to death of the driver and rider suffered severe injuries. The plaintiff
claimed compensation from the defendants, thus, the court held that the plaintiff was himself
a wrongdoer in driving the bike recklessly after getting intoxicated voluntarily.
Taking another example, in case where a twenty year old A attacks a person, and the person
responds in a similar way to protect himself, the person is said to be using his right of private
defence; A could have reasonably assumed that the person would defend himself, to the
extent of hitting him back in self-defence, thus he knowingly consented to suffer that harm
(volenti non fit injuria); and finally, the essence of the other two defences, it was A’s
wrongful act which caused him the damage (plaintiff the wrongdoer). Thus, we can say that
exceeding private defence leads to the defence of plaintiff, the wrongdoer.
Under this defence it has to be seen as to what is the connection between the plaintiff’s
wrongful act and the harm suffered by him. If his own act is the determining cause of the
harm suffered by him, he has no cause of action.

INEVITABLE ACCIDENT

Accident means an unexpected injury and if the same could not have been foreseen and
avoided, in spite of reasonable care on the part of the defender, it is the inevitable accident.
Inevitable accident, therefore is an accident which could not have been avoided by both
parties with any amount of care. It is, therefore, a good defence if the defended can show that

10
JUSTIFICATION OF TORTS, http://www.lawyersclubindia.com/articles/JUSTIFICATION-OF-TORTS--
253.asp, accessed on 24 September 2018, 5:15 PM.
11
(1828) 4 Bing. 628.
12
(1990) 3 All E.R. 344.

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he neither intended to injure the plaintiff nor could he avoid the injury by taking reasonable
care.13
An example is that even after proper maintenance in a garage, a tire bursts off while the
driver is driving, and he gets injured, he cannot claim compensation from the workers or the
owner of the garage since it was an inevitable accident.
In the famous case of Stanley v Powell14, the plaintiff was employed to carry cartridge for a
shooting party when they had gone pheasant-shooting. A member of the party fired at a
distance but the bullet, after hitting a tree, rebounded into the plaintiff’s eye. When the
plaintiff sued it was held that the defendant was not liable in the light of the circumstance of
inevitable accident.
Another famous case of inevitable accident is the case of Padmavati v Duggunaika15, where
the driver of a jeep was on his way to refill the fuel in the vehicle. On his way he gave a lift to
two strangers. While on the way to the petrol pump, one of the bolts fixed in the right front
wheel to the axle came out and caused the toppling of the jeep. This caused the two strangers
to fall out and they sustained heavy injuries and one of them died as a result of his injuries.
Here too it was held that the defendant couldn’t be held liable since it was a sheer accident
and also because the strangers had given their consent while they took the lift. Thus, it is also
a case of volenti non fit injuria.
In the case of Holmes v Mather16, the defendant’s horses which were being driven by a
servant got out of control due to the barking of dogs, and despite his best efforts to control
them, they injured the plaintiff. The court decided that the defendant and his servant weren’t
liable since despite his best efforts, he couldn’t control the horses and it was an inevitable
accident.

ACT OF GOD
The act of God or Vis Major or Force Majeure may be defined as circumstances which no
human foresight can provide against any of which human prudence is not bound to recognize
the possibility, and which when they do occur, therefore are calamities that do not involve the
obligation of paying for the consequences that result from them.

The Act of God is a defence used in cases of torts when an event over which the defendant has
no control over occurs and the damage is caused by the forces of nature. In such cases, the

13
Dr. R.K. BANGIYA, Law of Torts, 42 (ALLAHABAD LAW AGENCY) 2017.
14
[1891] 11 Q.B. 86 : [1885-90] All E.R. 314 : 60 L.J.Q.B. 52 : 63 L.T. 809 : 7 L.T.R. 25
15
(1975) 1 Kam. L.J. 93. 1975, A.C.J. 222.
16
[1857] L.R. 10 Ex. 261; 44 L.J. Ex. 176 : 32 L.T. 361

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defendant will not be liable in tort law for such inadvertent damage. In the defence of Act of
God, the event that causes the damage must be a natural calamity and it must be of such an
order that no reasonable man could foresee it. The essentials are:

1. Working of natural forces

It differs from Inevitable Accident because the losses here are caused by natural forces like
exceptionally heavy rainfall, thunderstorms, tornadoes, volcanic eruptions etc.

In the case of Nichols v. Marshland18, the defendant has a number of artificial lakes on his
land. Unprecedented rain such as had never been witnessed in living memory caused the banks
of the lakes to burst and the escaping water carried away four bridges belonging to the plaintiff.
It was held that the plaintiff’s bridges were swept by the Act of God and the defendant was not
liable.

In the case of Ramalinga Nadar v Narayan Reddiar19, the plaintiff had booked goods with the
defendant for transportation. The goods were looted by a mob, the prevention of which was
beyond the control of the defendant. It was held that every event beyond the control of the
defendant cannot be said Act of God. It was held that the destructive acts of an unruly mob
cannot be considered an Act of God. Thus, it is necessary that the damage arises from a natural
calamity in order to avail the defence of Act of God.

Also, the occurrence must be extraordinary. In the case of Kallulal v. Hemchand20, the wall of
the building of the defendant collapsed due to a rainfall of 2.66 inches, which caused the death
of two of the plaintiff’s children. The defendant couldn’t take the defence of Act of God since
the occurrence wasn’t extraordinary and it was foreseeable by any prudent man.

PRIVATE DEFENCE
The law gives a person his right to protect his property and his person from any attack
with the use of a reasonable amount of force. According to the law a person has a right
to respond when he is attacked. This can be used as a valid defence in the courts. The
law, however, says that the force used to repel the attack must be reasonable and
proportionate.

17
ACT OF GOD AND INEVITABLE ACCIDENT, https://www.scribd.com/document/360954928/ACT-OF-
GOD-AND-INEVITABLE-ACCIDENT, accessed on 26 September 2018, 6:00 PM.
18
[1876] 2 Ex. D. 1.
19
A.I.R. 1971 Kerala 197.
20
A.I.R. 1958 Madh. Pra. 48.

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 Also, the act must be immediate when the threat is imminent, i.e. force must be used
when in danger, not after or before it. For example, A beats up another person, B. The
person, B can defend himself at that time but if he beats A to get his revenge the next
day, he can’t use private defence as a valid defence.

The force must be proportionate to the threat. Taking the same example as above, if a
person starts beating another, and the other person shoots him on the spot, he can’t take
the private defence as he exceeded the reasonable force according to the law. This was
also held in the case of Morris v. Nugent21, the defendant was passing by the plaintiff’s
house, the plaintiff’s dog in rage bit the defendant. The defendant in private defence
raised his gun to shoot the dog but the dog ran away, and he still shot the dog. The
plaintiff sued defendants for damages, the defendant plead for the right of private
defence. It was held that defendant was not justified in doing the act, as the dog was
running away and there was no imminent danger or threat to the defendant.

In the case of Ramanuja Mudali v. M. Gangan22, the plaintiff used to cross the area
through the defendant’s land. In order to prevent such activities, the defendant spread
electric wires on his land, which the plaintiff stepped on and got an electric shock. The
plaintiff while crossing got an electric shock and was injured. There was no such
warning about the live wire. The defendant was held liable since he exceeded the
necessary force.

MISTAKE

Mistake in general torts, is not a valid defence since generally, intention doesn’t matter in
torts. For example, if someone passes into another person’s land, he is liable for trespass,
even it wasn’t intentional. Mistake is inherently a very vague defence because it centres on
the premise that the defendant acted under the mistaken belief his conduct was justified, and
that society wants to protect the justification. Mistake should be differentiated from accident:

21
222 F.2d 604, 1955 U.S. App. 4810, 58 A.L.R.2d 251.
22
A.I.R. 1984 Mad 103.

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in mistake, the end was sought by the defendant although he did not know it was wrong, in
accident the result of the defendant's actions was unintended. One example is that of a police
officer acting under what he believes is a valid warrant: since the officer did not legally arrest
the plaintiff, he is technically guilty of false imprisonment; but, the action is excused because
the officer was acting under mistaken premises.
In the case of Consolidated Co. v Curtis & Sons23, the defendant was an auctioneer and was
were asked to sell a piece of good which he honestly believed that they belonged to the
customer. After selling the goods, the defendant gave the sale proceedings to the customer. It
turned out that the goods actually belonged to someone else, the plaintiff, who sued them.
The defendant was held liable for the tort of conversion.
Although there are some exceptions to this rule and in some cases, the defendant may avoid
his liability by showing that the act was under an honest but mistaken belief. For example, for
the tort of malicious prosecution, proving the malicious intent is necessary. Also, honest
belief in the truth of a statement is a defence to an action of deceit.24
Mistake will often be a very fact-specific inquiry, where the reasonableness of the defendant's
mistaken conclusions, and the particular public policies at issue, are carefully examined. If a
defendant has been induced by the plaintiff's own conduct he is usually absolved of all
wrong-doing in tort, as long as his reliance on the plaintiff's conduct was reasonable.25

NECESSITY

An act causing damage, if done under a necessity to prevent a greater evil is not actionable
even though harm was caused intentionally. Necessity should be distinguished from the
private defence. In necessity, there is an infliction of harm on an innocent person whereas in
private defence harm is caused to a plaintiff who himself is the wrongdoer. Necessity is also

23
(1894) 1 Q.B. 495.
24
Dr. R.K. BANGIYA, Law of Torts, 48 (ALLAHABAD LAW AGENCY) 2017.
25
MISTAKE-DEFENCE IN TORTS, https://www.lectlaw.com/mjl/to006.html, accessed on 27 September
2018, 6:10 PM.

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different from the inevitable accident because, in necessity, the harm is an intended one,
whereas, in the inevitable accident, the harm is caused in spite of the best effort to avoid it.
For example, throwing goods overboard a ship to lighten it for saving the ship or person on
board the ship, or pulling down a house to stop a further spread of fire are common examples
of necessity.26
Taking another example, forcibly feeding a prisoner to save his life can be a valid defence of
necessity as it was necessary to save his life. Thus, necessity is an act of committing a smaller
harm to prevent a greater harm. In the landmark case of R v. Dudley and Stephens27, the
court held that killing of person in order to survive, is not avoiding of greater harm. Hence,
the defence of necessity will not be granted.
Another example of this defence being used is when a person enters another person’s house
in order to put out a fire so that it won’t spread to the other houses. If the plaintiff, or the
owner of the house files against the defendant for trespass the defendant can take the defence
of necessity. A case with similar facts is cited below.

In Cope v. Sharpe28, the defendant entered the plaintiff’s land to prevent the spread of fire to
the adjoining land over which the defendant’s master had the shooting rights. Since the
defendant’s act was considered to be reasonably necessary to save nearby lands from real and
imminent danger, it was held that the defendant was not liable for trespass.

But if the interference is not reasonably necessary, the defendant may be held liable. For
example, a person enters a burning house to put out fire, despite firemen already being there,
he cannot claim the defence of necessity if the owner of the house sues him for trespass.

In the case of Carter v. Thomas29, the defender, who entered the plaintiff’s premises in good
faith to extinguish a fire at which the fireman had already been working, was held liable for
trespass.

STATUTORY AUTHORITY
Statutory authority is the authority derived from a statute or legislation. When legislation is
passed, empowering a person to commit a certain act, that authority granted by the statute is a
defence against liability for torts. Even if, under normal circumstances, the action would have
resulted in a tort, if there is statutory authority, the defendant cannot be held liable.30

26
Dr. R.K. BANGIYA, Law of Torts, 48 (ALLAHABAD LAW AGENCY) 2017.
27
(1884) 14 Q.B.D. 273 D.C.
28
[1891] 1 K.B. 496.
29
[1891] Q.B. 673.
30
GENERAL DEFENCES IN TORTS, http://www.lexuniverse.com/torts/india/General-Defences-In-
Torts.html, accessed on 27 September 2018, 6:15 PM.

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An example of this would be when the railways of a country build railway tracks across a
person’s land, the railways may cause incidental harm due to noise, smoke, vibration etc.
cannot be held liable for a tort because it is protected by a statute and has the authority to
commit a certain action. The only compensation one can get is the compensation provided by
the statue beforehand.

For example, in the case of Hammer Smith Rail Co. v Brand31, the value of the plaintiff’s
property had significantly depreciated due to noise, vibration and smoke caused by the
running of trains on a railway constructed under the state’s power. The court held that the
Railways weren’t liable because the construction of railways was under a statutory authority.

Statutory authority is of two types, conditional and absolute. In case of Conditional authority,
the authority is granted with some conditions and the state thus may me made liable but in
case of Absolute authority, the authority is absolute and no matter what, the tortious liability
can’t be imposed.

However, this does not give the authorities the license to do what they want unnecessarily; they
must act in a reasonable manner. It is, for this reason, certain guidelines that need to be followed
during construction of public transport facilities.32

In Smith v. London and South Western Railway Co.33, the servants of a Railway Co.
negligently left trimming of grass and hedges near 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. Since it was a case of negligence on the
part of the Railways Co., they were held liable by the court.

CONCLUSION

The law of torts is dynamic, just like every other law. It keeps on evolving through time with
the everchanging needs of the society. Several different torts have several different tortious
liabilities. Some are mild while others are severe. To counter these claims of torts and escape
the liability, one can use certain statements or “excuses” to avoid the liability in torts, if

31
(1869) L.R.H.L. 171.
32
GENERAL DEFENCES IN TORT:STATUTORY AUTHORITY, https://www.clatapult.com/general-
defences-in-tort-statutory-authority/
33
(1870) L.R. 6 C.P. 14.

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certain conditions are met. These counter statements which help the defendant avoid or
escape the liability are called General Defences against tortious liability.
Individuals who have been unjustly implicated with false accusations and claims can use
these to prove their innocence and avoid the liability in the case of torts. In other words,
defences are certain rules or statements which when used, result in a favourable decision for
the defendant.
These defences have also been evolving along with the law of torts. Their details and
meanings change with the various changes in law. Also, the burden of the proof of the
defence is always on the defendant. Thereby meaning that the accused must provide facts and
other evidence to meet certain conditions which enable him/her to avail the general defence
and thus avoid tortious liabilities.
All the general defences are separated from each other as they deal with different situations
regarding different facts. Although there is certain ambiguity in certain defences like
inevitable accident and Act of God, but there are still some landmark judgements which help
shape the defences further and clarify any queries regarding the ambiguous nature. Every
defence from vicarious liability to the statutory authority have been made to help the
defendant avoid any liability which he shouldn’t be liable for.
As we studied the various cases in all these defences, we see how these rules help an innocent
person escape liability, they also create further good judgements which can be later cited as
precedents and help people in future cases.
Although these defences are created to help the defendant, we conclude that one can only
avail these defences when a certain set of conditions have been met and then only waiver
liability. It’s not easy for everyone to escape liability because the defences are strong and
well defined. Thus, one can’t abuse many loopholes in these defences and waive off his
responsibility without concrete facts or proof. Therefore, through various evolvements
through the judgements of the courts, these defences have been solidified and have been
made very difficult to misuse, concluding that no guilty person can avoid liability using these
defences.

REFERENCES

BOOKS:
Bangia R.K., Law of Torts, ALLAHABAD LAW AGENCY, Faridabad, 2017

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