General Defences in Tort law

When the plaintiff (the person who files a suit) brings an

action against the defendant (the person against whom the suit
is filed) for a particular tort, then the defendant can avoid his
liability by taking the plea of some general defences.

General Defences Vs Specific Defences

• General defencesin Tort law are those defences
which may be taken against number of torts for instance the
defence of Consent can be taken for Trespass, Defamation,
or any other tort.
• Specific defencesrefer to those defences which are
peculiar to some particular wrongs like the defence of fair
comment, privilege, or justification that can be taken only
for Defamation.

General Defences

1. VolentiNon Fit Injuria (Consent)

• According to this maxim, “to a willing person, no injury is
done.” It means that a person who willingly and
knowinglyputs himself in a dangerous situation cannot sue for
any resulting injuries.
• When a person himself consents to the infliction of
some harm upon himself then the person can take the defence
of Volenti Non Fit Injuria.
• The consent given may beexpressorimplied.

Essential condition for Volenti non fit injuria:

➢ Consent must be free:For this defence it is
necessary to how that plaintiff consent was free. If the
consent is obtained by fraud or under compulsion or under
some mistaken impression then the defendant cannot take a
defence of the Doctrine of Volenti non fit injuria.

For Example:

• A married woman (Plaintiff),noticed development of

a painful lump in her hand. The lump had no effect on her
uterus, but during surgery her uterus was removed without
 any justification. It was held that hospital (Defendant)was
liable for deficiency in service and it was also held that the
Plaintiff’s consent for the operation of her hand did not
imply her consent to the removal of uterus.
➢ Consent cannot be given for an unlawful act:Any
consent for an unlawful act and which is prohibited by law
cannot make the act legal. For example consent for fighting
with sharp swords is unlawful even though the parties may
have consented.
➢ Mere Knowledge does not imply assent:For the
maximvolenti non fit injuriato apply the two points need to
be proved: (a) the plaintiff knew that the risk is there. (b)
He, knowing the same, has agreed to suffer the harm. If
both the points are proved then only this maxim will apply.

For Example:

• The plaintiff(Workmen) was employed by defendant

for the purpose of cutting the rock. There was a crane at the
working drill which is used to convey the stones. The crane
is passed over the plaintiff head again and again. While the
Plaintiff was busy in his work a stone fell from the crane
and injured him. Here
the Court held that there was mere a knowledge of risk
without the assumption of it. So the maximVolenti non fit
injuriadid not apply and the defendants were liable
.
2. Plaintiff, the wrongdoer
• If the Plaintiff himself did something wrong which
caused him the injury then in that case the plaintiff cannot
claimany damages from the Defendant.

• Itis based on the maxim“Ex turpicausa non

orituraction”which means, from an immoral cause no action
arises.

For Example:
• If someone walks into someone’s house without his
permission and it is written on the gate that “beware of
dogs”and after entering the dog bites him then in that case
the plaintiff is himself the wrongdoer and he know the risk
before entering the house so the plaintiffcannot
 claimcompensation from the Defendant .

3. InevitableAccident
• When an injury is caused to a person for an event
which could not have been foreseen and avoided, in spite of
reasonable care by the defendant then it comes under the
defence of inevitable accident.
• In this defence it is necessary to show that: (a) the
defendant does not intend to injure the Plaintiff (b) the
defendant cannot avoid it in spite of the reasonable care.

For Example:

• Plaintiff and Defendant went for a pheasant

shooting .The defendant fired at a pheasant, but the shot
from his gun glanced off an oak tree and injured the
plaintiff. It was held that injury was accidental i.e. an
Inevitable Accident and hence the defendant was held not
liable.

For Example:

• Two strangers took a lift in a jeep. Afterwards, one of

the bolts fixing the right front wheel of the jeep to the axle
gave way and the wheel flew away from the axle. The jeep
was toppled; the two strangers got serious injuries resulting
in death of one of them. It was found that it was mere an
accident which could not be detected by periodical checkup.
Therefore the defendant was held not liable as he took the
defence of inevitable accident.

4. Act of God

• It is a kind of inevitable accident with the difference

that Act of God includes those consequences which arises
out of the working of natural forces like exceptional heavy
rainfall, volcanic eruptions, tides, etc.
• There are two essential condition needed for this defence :
➢ The event causing damage must be a working of a natural
force without any intervention from human agency.

For example:
 • Ifthe goods transported in the defendant’s lorry was
robbed by the unruly mob then it cannot be
considered to be an Act of God and the defendant is liable for
the loss of those goods.
➢ The occurrence must be extraordinary and not the one which
could be anticipated and reasonably guarded against.

For Example: The wall of building was collapsed on the day

when there was rainfall of 2.66 inches which resulted in the
death of 2 children. The court held that the defendant could
not take the defence of Act of God as that much of rainfall
in the rainy season is very common and not any
extraordinary condition. Hence the defendant was held
liable.

6. Mistake

• There are 2 types of Mistakes:

a) Mistake of Fact
b) Mistake of Law

• Generally,
both the mistakes are no defence in Law of Torts
• But there is an exception to this rule: When a
defendant acts under honest but mistaken belief then he may
take the defence of Mistake to avoid his/her liability under
Law of Torts.

For Example:
• Defendant published a statement that plaintiff had
given birth to the twins in good faith but in reality the
plaintiff got married just two months ago. The defendant
was held liable for defamation and the element of good faith
is immaterial in such cases.

7. Necessity

An act done to prevent a greater harm is not actionable even

though the harm was caused intentionally.
In necessity it is important to show that the act done was
necessary.
 For instance, if someone throws the goods from the ship to
save the ship from sinking comes under this defence.
Necessity and Private Defence are different. 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.

For Example:
A person has to trespass into the neighbor’s land in order to
save the person in the adjoining house who
is on fire. Then in this case the defendant can take the defence
of Necessity.

8. Statutory Authority

• The damage caused from an act which a legislation/statute

authorizes or directs to be done, is not an actionable tort.
• It is a complete defence and the injured party has
no remedy except for the damages which the legislature
has provided in the statute.
• This immunity is also for all the acts which are incidental to
the exercise for such authority.

For Example:

• When the noise, vibration, smoke , etc. from the trains

running may cause harm to a person but no action can lie
except for the payment of such compensation which the Act
himself may have provided.

For Example:
• The Respondent has been authorized to run the
railways. On one fine day sparks from the train set fire to
the Plaintiff’s woods on the adjoining lands. It was held that
defendant has taken proper care to prevent the sparks from
the train and they were doing nothing more than what the
Statute had authorized them to do. So, they are immune and
hence held not liable.

1. Consent
If a person consents to being physically contacted, then no tort
of battery exists. Consent may be given expressly by words or
implied from conduct. A patient can give express medical
consent to their doctor before undergoing an operation which
in other circumstances might amount to a battery. Similarly,
certain sports, such as rugby, on the face of it comprise a
continuous series of assaults and batteries. Clearly it would be
absurd if the law allowed a rugby player to sue the opposing
team for trespass to the person. So a person who consents to
being physically contacted within the rules of a particular game
is not a victim of a tort. Deliberate acts of violence on the
playing field, though, do not fall within this defence.
2. Necessity
A wrongdoer may have a successful defence if they can show
that it was necessary to act in the way they did. In other words,
there must be a sound justification for breaking the law. A
person who grabs another and drags them by force from the
path of an oncoming vehicle, and who by doing so prevents
them from serious injury or death, is not liable in tort.
Similarly, a doctor who performs emergency surgery on an
unconscious patient, who naturally cannot consent, in order to
save their life, may successfully argue that the battery was
necessary if the surgery performed was
limited to that which was required to save the patient’s life.
3. Self-Defence
The defence of self-defence will only succeed if the force used
was not excessive and was reasonable and necessary in the
circumstances to prevent personal injury.
Each case must be considered on its own facts. For example, if
a person is attacked with a knife it may be reasonable for them
to defend themselves also with a knife, but not necessarily with
an automatic pistol. It will be for the courts to decide what is
reasonable.
4. In Defence of Others
Similarly to self-defence, a wrongdoer may successfully argue
that their actions were justified in order to assist a third party
who they reasonably believe is in immediate danger of being
attacked. Most commonly this occurs when a parent is
protecting a child or one spouse is protecting another.
 5. Defence for False Imprisonment If the victim was restrained
under legal authority or justification, or if the perpetrator was
exercising their legal rights or duties, then there is a complete
defence to false imprisonment.
Malicious Prosecution
Malicious prosecution is a mode of abuse of legal process.
Malicious prosecution consists of institution of criminal
proceedings in a court of law maliciously and unreasonably
and without a proper cause of action. If a person can show
actual damage, he can file an action for damages under the law
of torts.
Essentials:
i. The proceedings were instituted without any probable or
reasonable cause
ii. Proceedings were filed maliciously and not to book a criminal
in a court of law/not with a mere intention of carrying the law
into effect
iii. Termination of Proceedings in favour of the Plaintiff
iv. As a result of such prosecution, the plaintiff has suffered
damage.
Example: P informed police that a theft has been committed in
his house and he suspected that it has been committed by A. A
was consequently arrested but was discharged by the
magistrate as the final police report showed that A was not
connected with the theft. When A prosecuted P for malicious
prosecution, the court dismissed the suit as there was no
prosecution in a court of law. To prosecute is to set the law in
motion.
Prosecution is not deemed to have commenced before a person
is summoned to answer a complaint.
Reasonable and probable cause means, an honest belief in the
guilt of the accused person upon a full conviction, founded
upon reasonable grounds of the existence of circumstances,
which assuming them to be true, would reasonably lead any
prudent man placed in the position of the accused to the
conclusion that the person charged was probably guilty of the
crime imputed.
Example: P informed police that a theft has been committed in
his house and he suspected that it has been committed by A. A
was consequently arrested but was discharged by the
magistrate as the final police report showed that A was not
connected with the theft. When A prosecuted P for malicious
prosecution, the court dismissed the suit as there was no
prosecution in a court of law. To prosecute is to set the law in
motion.
Prosecution is not deemed to have commenced before a person
is summoned to answer a complaint.
Reasonable and probable cause means, an honest belief in the
guilt of the accused person upon a full conviction, founded
upon reasonable grounds of the existence of circumstances,
which assuming them to be true, would reasonably lead any
prudent man placed in the position of the accused to the
conclusion that the person charged was probably guilty of the
crime imputed.
There is a reasonable and probable cause when one has
sufficient ground for thinking that the other person has
committed the offence. In Abrath v. N.E.Railway Co.,one ‘M’
had recovered compensation for his injury in a railway
collision from the railway Co. Latter on the railway Co. came
to know that those injuries were not suffered in the collision
but were artificially created by him in collision with one doctor
‘P’. The railway Co. made inquiries and on legal advice sued P
for conspiring with M to defraud the railway Co. ‘P’ was
acquitted and he filed an action for malicious prosecution
against the railway. It was held that railway Co. had reasonable
and probable cause.
Another essential ingredient is malice. Malice means presence
of some improper or wrongful motive, intent to use the legal
process in question for some other purpose e. g. a wish to
injure the other party rather than to vindicate law or justice.
Mere acquittal of the plaintiff is no proof of malice. It may be
malice if the person acted in undue haste, recklessly or failed
in making proper and due inquiries or in sprit of retaliation or
on account of long standing enmity.
The last essential ingredient is that the person has been
acquitted or the conclusion of proceeding is in favour of the
plaintiff and consequent to it the plaintiff has suffered damage.
If proceedings terminate in favour of the plaintiff but he has
not suffered any damage, then no action for malicious
prosecution lies. On account of the prosecution one must suffer
damage, the damage may be injury to ones fame, reputation. It
may also put in danger his life or liberty, or it may result in
damage to
his property.

Essential elements of malicious prosecution:

Duty of care: The defendant must owe a duty of care to the

plaintiff.
The plaintiff has to establish that the defendant owed a
specific legal duty to take care and he has breached that
duty.
Sometimes the relationship between plaintiff and defendant
automatically creates a legal duty or obligation to act in a
certain manner. Like doctor owes a duty of care to treat the
patient in an appropriate manner.
Breach of duty: The defendant made a breach of the duty.
The defendant can be held negligent if he knew that his
action would affect the other person, if he does not act in a
correct way. Like, If the defendant knows that his dog is
ferocious then he should put some warning sign outside his
house “Beware of dog”. If he fails to do so, then he is
negligent.

Damage: The plaintiff must suffer damage due to the act of

defendant.
It is important to proof that the defendant breach of duty
caused damage to the plaintiff.
The Plaintiff has to show that the damage is not too remote.
The duty to access the damage is entirely the discretion of the
court.