General Defences in Tort

• There are various cases brought against the defendant parties for the
costs of a tort and every one the weather that is essential of the
incorrect done by the defendant, He would be held chargeable for the
incorrect that has been accrued. Therefore in some cases, the
defendant can avoid liability by taking the plea of the defences
available under law of torts.
• There would be some defences that are particularly associated with
various offences, there’s mainly just in case of defamation, the
defences available are under the justification, comment and privileges,
etc.
• General defences are considered a collection of defences or excuses
that the defendant undertakes to flee liability charged, but if the action
has undergone a selected set of conditions that deals with the defences
under the law of tort.
• Meaning of General Defences
• There are some specific defences available under the
law of tort, just like the defences of privileges, action on
defamation, fair justification and comment are
available.
• Where the overall defence of consent could also be
taken, whether the action is for defamation,
internment, trespass, or other wrongs.
 Volenti Non-Fit Injuria

• When the plaintiff voluntarily suffers form some harm, then he

has no remedy for the incorrect under the law of tort and not
allowed to form a complaint about the identical.
• For example, once you invite your relatives to your house then
you can not sue them on the costs of trespass, Doctors can’t be
sued after the surgery done by them.
• Negligence of the defendant
• In order to avail of this defence, it’s necessary that the
defendant shouldn’t be negligent. If the plaintiff consents to
some risk then it’s presumed that the defendant won’t be liable.
• For example, when someone consents to a surgical
procedure and also the same becomes unsuccessful
then the plaintiff has no right to file a suit but if the
identical becomes unsuccessful thanks to the surgeon’s
negligence then in such cases he is going to be entitled
to say compensation.
• In Slater v. Clay Cross Co. Ltd., the plaintiff suffered
injuries thanks to the negligent behaviour of the
defendant’s servant while she was walking along a
tunnel which was owned by the defendants.
• Limitations on the doctrine’s scope
• The scope of the maxim volenti non-fit injuria has been
curtailed within the following cases:
• Rescue cases The Unfair Contract Terms Act, 1977, In
these cases, whether or not the plaintiff has done
something voluntarily but he can’t be met with the
defence of ‘consent’ i.e. volenti non-fit injuria.
• In Hyett v. Great Western Railway Co., the plaintiff
got injured while saving the defendant’s cars from a
fireplace which occurred because of negligence on the a
part of the defendants.
• Volenti non-fit injuria and Contributory negligence
• Volenti non-fit injuria could be a complete defence but the
defence of nonperformance came after the passing of the Law
Reform (Contributory Negligence) Act, 1945. In neglect, the
defendant’s liability is predicated on the proportion of fault
within the matter. within the defence of negligence, both are
liable – the defendant and also the plaintiff, which isn’t the case
with volenti non-fit injuria.
• In volenti non fit injuria, the plaintiff knows the character and
extent of danger which he encounters and just in case of
nonperformance on the part of the plaintiff, he failed to
understand any danger.
 Plaintiff the wrongdoer

• There is a proverb “Ex turpi causa non oritur actio” which

says that “from an immoral cause, no action arises”. If the
premise of the action by the plaintiff is an unlawful contract
then he won’t achieve his actions and he cannot recover
damages.
• If a defendant asserts that the claimant himself is that the
wrongdoer and isn’t entitled to the damages, then it doesn’t
mean that the court will declare him free from the liability but
he won’t be liable under this head.
• In the case of Bird v. Holbrook, the plaintiff was entitled to
recover damages suffered by him because of the spring-guns
set by him in his garden with none notice for the identical.
 Inevitable Accident

• Accident means an unexpected injury and if the identical

accident couldn’t are stopped or avoided in spite of taking
all reasonable care and precautions on the part of the
defendant, then we call it an unavoidable casualty. It is a
decent defence because the defendant could show that
the injury couldn’t be stopped even after taking all the
precautions and there was no intent to harm the plaintiff.
• In Stanley v. Powell, the defendant and also the plaintiff
visited a pheasant shooting. The defendant fired at a
pheasant but the bullet after getting reflected by an oak
hit the plaintiff and he suffered serious injuries.
 Act of God

• A very unusual act or an event which is the result of the natural

forces such as earthquakes, volcanic eruptions, floods, droughts, etc. is
coined as Act of God or ‘Vis major’. It is beyond human imagination
and could not be prevented by human intervention.
• Essentials
• The act should result from a natural force.
• No human intervention.
• Extraordinary in nature
• In Ramalinga Nadar v. Narayan Reddiar, the unruly mob robbed all the goods
transported in the defendant’s lorry. It cannot be considered to be an Act of
God and the defendant, as a common carrier, will be compensated for all the
loss suffered by him.
• In Nicholes v. Marsland, the defendant created an artificial lake on his land by
collecting water from natural streams. Once there was an extraordinary
rainfall, heaviest in human memory. The embankments of the lake got
destroyed and washed away all the four bridges belonging to the plaintiff. The
court held that the defendants were not liable as the same was due to the Act
of God.
• Some extraordinary occurrence of natural forces is required to plead the
defence under the law of torts.
• In Kallu Lal v. Hemchand, the wall of a building collapsed due to normal
rainfall of about 2.66 inches. The incident resulted in the death of the
respondent’s children. The court held that the defence of Act of God cannot
be pleaded by the appellants in this case as that much rainfall was normal
and something extraordinary is required to plead this defence. The appellant
was held liable.
 Private defence

• The law has given permission to protect one’s life and property and
for that, it has allowed the use of reasonable force to protect himself
and his property.
• The use of force is justified only for the purpose of self-defence.
• There should be an imminent threat to a person’s life or property.
• For example, A would not be justified in using force against B just
because he believes that some day he will be attacked by B.
• The force used must be reasonable and to repel an imminent danger.
• For example, if A tried to commit a robbery in the house of B and B
just draw his sword and chopped his head, then this act of A would
not be justified and the defence of private defence cannot be
pleaded.
• For the protection of property also, the law has only allowed taking such
measures which are necessary to prevent the danger.
• For example, fixing of broken glass pieces on a wall, keeping a fierce dog, etc.
is all justified in the eyes of law.
• In Bird v. Holbrook, the defendant fixed up spring guns in his garden without
displaying any notice regarding the same and the plaintiff who was a
trespasser suffered injuries due to its automatic discharge. The court held that
this act of the defendant is not justified and the plaintiff is entitled to get
compensation for the injuries suffered by him.
• Similarly, in Ramanuja Mudali v. M. Gangan, a landowner i.e. the defendant
had laid a network of live wires on his land. The plaintiff in order to reach his
own land tried to cross his land at 10 p.m. He received a shock and sustained
some serious injuries due to the live wire and there was no notice regarding it.
The defendant was held liable in this case and the use of live wires is not
justified in the case.
 Mistake

• The mistake is of two types:

• Mistake of law
• Mistake of fact
• In both conditions, no defence is available to the defendant.
• When a defendant acts under a mistaken belief in some situations then he may use
the defence of mistake to avoid his liability under the law of torts.
• In Morrison v. Ritchie & Co, the defendant by mistake published a statement that
the plaintiff had given birth to twins in good faith. The reality of the matter was that
the plaintiff got married just two months before. The defendant was held liable for the
offence of defamation and the element of good faith is immaterial in such cases.
• In Consolidated Company v. Curtis, an auctioneer auctioned some goods of his
customer, believing that the goods belonged to him. But then the true owner filed a
suit against the auctioneer for the tort of conversion. The court held auctioneer liable
and mentioned that the mistake of fact is not a defence that can be pleaded here.
 Necessity

• If an act is done to prevent greater harm, even though the act was
done intentionally, is not actionable and serves as a good defence.
• It should be distinguished with private defence and an inevitable
accident.
• The following points should be considered:
• In necessity, the infliction of harm is upon an innocent whereas in
case of private defence the plaintiff is himself a wrongdoer.
• In necessity, the harm is done intentionally whereas in case of an
inevitable accident the harm is caused in spite of making all the
efforts to avoid it.
• For example, performing an operation of an unconscious patient just
to save his life is justified.
• In Leigh v. Gladstone, it was held that the forcible feeding of a person
who was hunger-striking in a prison served as a good defence for the
tort of battery.
• In Cope v. Sharpe, the defendant entered the plaintiff’s premises to
stop the spread of fire in the adjoining land where the defendant’s
master had the shooting rights. Since the defendant’s act was to
prevent greater harm so he was held not liable for trespass.
• In the case of Carter v. Thomas, the defendant who entered the
plaintiff’s land premises in good faith to extinguish the fire, at which
the fire extinguishing workmen were already working, was held guilty
of the offence of trespass.
• In Kirk v. Gregory, A’s sister-in-law hid some jewellery after the
death of A from the room where he was lying dead, thinking that to
be a more safe place. The jewellery got stolen from there and a case
was filed against A’s sister-in-law for trespass to the jewellery. She
was held liable for trespass as the step she took was unreasonable.
 Statutory authority

• If an act is authorized by any act or statute, then it is not

actionable even if it would constitute a tort otherwise. It is a
complete defence and the injured party has no remedy except for
claiming compensation as may have been provided by the statute.
• Immunity under statutory authority is not given only for the harm
which is obvious but also for the harm which is incidental.
• In Vaughan v. Taff Valde Rail Co., sparks from an engine of the
respondent’s railway company were authorized to run the railway,
set fire to the appellant’s woods on the adjoining land. It was held
that since they did not do anything which was prohibited by the
statute and took due care and precaution, they were not liable.
• In Hammer Smith Rail Co. v. Brand, the value of the property of
the plaintiff depreciated due to the loud noise and vibrations
produced from the running trains on the railway line which was
constructed under a statutory provision. The court held that
nothing can be claimed for the damage suffered as it was done
as per the statutory provisions and if something is authorized by
any statute or legislature then it serves as a complete defence.
The defendant was held not liable in the case.
• In Smith v. London and South Western Railway Co, the servants
of a railway company negligently left the trimmings of hedges
near the railway line. The sparks from the engine set fire to
those hedges and due to high winds, it got spread to the
plaintiff’s cottage which was not very far from the line. The court
held that the railway authority was negligent in leaving the grass
hedges near the railway line and the plaintiff was entitled to
claim compensation for the loss suffered.