General Defences in Tort

Tort law is an essential aspect of the legal system that compensates

individuals who have suffered harm or injury due to the wrongful
actions of others. However, there are certain situations where a
defendant may be able to escape liability by using a defence.
There are various general defences available in tort law that can be
used by the defendant to escape liability. These defences are available
to the defendant in all types of tort actions.
These defences are known as general defences in tort law.
Contents hide
1. Meaning of General Defences
1.1. Purpose of General Defences in Tort
2. Application of General Defences in Torts
3. General Defences in Law of Torts
3.1. Volenti non fit injuria
3.2. Plaintiff the wrongdoer
3.3. Inevitable accident
3.4. Act of God
3.5. Private defence
3.6. Mistake
3.7. Necessity
3.8. Statutory authority
4. Conclusion

Meaning of General Defences

General defences in tort law are the legal principles that can be used
by a defendant to escape liability for a tortious act. These defences are
applied to protect the defendant’s legal rights and interests. The
plaintiff must prove their case, and if the defendant is successful in
establishing a defence, they will not be held liable for any harm or
injury caused to the plaintiff.
Purpose of General Defences in Tort
The primary purpose of general defences in tort law is to provide a fair
and just balance between the legal rights of the plaintiff and
defendant. These defences are necessary to ensure that the
 defendant’s legal rights are not infringed upon and that they are not
held liable for actions that were beyond their control.
Additionally, these defences provide a framework for determining
whether the defendant’s actions were justified under the
circumstances.
Application of General Defences in Torts
General defences in tort law are applicable in various situations.
However, it is important to note that the availability and effectiveness
of these defences will depend on the specific circumstances of each
case. A defendant must establish that their actions fall within the
scope of a particular defence to avoid liability.
General Defences in Law of Torts
The defences available in torts are given as follows:
 Volenti non fit injuria or the defence of ‘Consent’
 The wrongdoer is the plaintiff
 Inevitable accident
 Act of god
 Private defence
 Mistake
 Necessity
 Statutory authority
Volenti non fit injuria
The defence of volenti non fit injuria means that the plaintiff has
voluntarily assumed the risk of injury or harm. The defendant can
argue that the plaintiff was aware of the risk involved in the activity
and willingly accepted it, and therefore, cannot claim damages for any
harm suffered as a result.
The essential ingredients of this defence are:
a. The plaintiff must have voluntarily and knowingly assumed the risk
of harm or injury.
b. The plaintiff must have been aware of the nature and extent of the
risk.
c. The plaintiff must have consented to the risk.
Illustration: A professional wrestler, John, takes part in a wrestling
match. During the match, he sustains a severe injury. However, he
cannot claim damages for the injury sustained because he knew the
risks involved in the activity and voluntarily participated in it.
In the case of Hall v. Brooklands Auto Racing Club, the plaintiff
attended a car racing event held on the defendant’s track. During the
race, two cars collided and one was thrown into the spectator area,
injuring the plaintiff. The court found that the plaintiff knowingly
assumed the risk of attending the race, as the possibility of such an
injury was foreseeable. As a result, the defendant was not held liable
for the plaintiff’s injuries.
Similarly, in Padmavati v. Dugganaika, the driver of a jeep picked up
two strangers who needed a lift to a nearby town. While on the way,
the jeep overturned due to a problem with the right wheel, causing the
two strangers to be thrown from the vehicle and suffer injuries,
resulting in one person’s death.
The court concluded that the driver’s employer could not be held liable
for the accident, as it was an unforeseeable and involuntary
occurrence. Additionally, the principle of volenti non fit injuria did not
apply in this case, as the strangers did not willingly assume any risks
when they entered the vehicle.
In rescue situations, where a person voluntarily assumes a risk to save
another from harm or danger, the courts have generally held that the
defence of volenti non fit injuria is not available.
Illustration: A person jumps into a river to save a drowning child,
knowing that the river is dangerous and that there is a risk of
drowning. If the rescuer is injured or killed in the process, the
defendant cannot rely on the defence of volenti non fit injuria.
However, the defendant may argue that the rescuer assumed the risk
of injury by voluntarily jumping into the river to save the child.
In the case of Haynes v. Harwood, the defendant’s employee left two
horses unattended in a public street. A boy threw a stone at the
horses, causing them to bolt and endanger a woman and others on the
road. A constable stepped in to protect them and was injured while
doing so. As this was a rescue case, the defence of volenti non fit
injuria was not available, and the defendants were held liable for the
constable’s injuries.
However, if a person voluntarily tries to stop a horse that poses no
danger, they would not be entitled to any remedy. This means that the
principle of volenti non fit injuria would be available as a defence, and
the person would not be able to hold the horse owner liable for any
injuries they sustain.
Plaintiff the wrongdoer
There is a maxim “Ex turpi causa non oritur actio” which says that
“from an immoral cause, no action arises.
The defence of plaintiff the wrongdoer means that the plaintiff was also
responsible for the harm or injury suffered. The defendant can argue
that the plaintiff’s actions contributed to the harm suffered, and
therefore, they should not be held solely liable for the damages.
The essential ingredients of type of general defences in tort are:
a. The plaintiff must have contributed to the harm or injury suffered.
b. The plaintiff’s contribution to the harm must be significant.
Illustration: Tom is driving on the wrong side of the road and collides
with a car driven by Mike. Both Tom and Mike suffer injuries. However,
Tom can argue that Mike was also at fault as he was driving at an
excessive speed, and therefore, he should not be held solely
responsible for the damages.
In Bird v. Holbrook, the plaintiff was awarded damages for injuries he
sustained due to spring-guns set up in the defendant’s garden without
any warning.
In Pitts v. Hunt, a rider who was 18 years old encouraged his 16-year-
old friend to drive recklessly under the influence of alcohol. The
motorcycle they were on crashed, and the driver died instantly. The
pillion rider suffered serious injuries and filed a suit seeking
compensation from the deceased’s relatives. However, the plea was
rejected as the plaintiff himself was found to be the wrongdoer in this
case. This illustrates the defence of plaintiff as the wrongdoer, which
may be used to argue against a claim of compensation by a plaintiff
who contributed to their own injuries through their own wrongful
conduct.
Inevitable accident
The defence of inevitable accident means that the harm or injury
suffered was not preventable. The defendant can argue that the harm
or injury was due to unforeseeable circumstances, and therefore, they
should not be held liable for it.
The essential ingredients of this type of general defences in tort are:
a. The harm or injury suffered was not foreseeable.
b. The harm or injury suffered was due to unforeseeable
circumstances.
Illustration: A tree branch falls on a car, causing significant damage.
The car owner cannot claim damages from the owner of the tree as the
falling of the branch was due to unforeseeable circumstances and was
not preventable.
In the case of Stanley v. Powell, both the defendant and the plaintiff
were participating in a pheasant shooting event. While the defendant
was aiming at a pheasant, the bullet ricocheted off an oak tree and hit
the plaintiff causing serious injuries. The incident was deemed an
inevitable accident, and the defendant was held not liable.
Similarly, in Assam State Coop., etc. Federation Ltd. v. Smt.
Anubha Sinha, the plaintiff had leased out their premises to the
defendant. The defendant had requested the landlord to repair the
defective electric wirings of the premises, but the landlord failed to do
so. Due to a short circuit, a fire broke out in the house, causing
damages. The tenant was not negligent in any way. When the landlord
claimed compensation for the damage, it was held that it was an
inevitable accident, and the tenant was not liable.
The case of Raj Rani v. Oriental Fire & General Ins. Co.
Ltd. involved a truck whose front right spring and other parts broke
unexpectedly while being driven, causing the driver to collide with a
tractor coming from the opposite direction. Both the driver and the
owner of the truck were unable to prove that they had taken necessary
precautions while driving. The court found that this case was one of
negligence and not an inevitable accident, and therefore held the
defendant liable.
Act of God
The defence of an act of God means that the harm or injury suffered
was due to natural events beyond human control. The defendant can
argue that the harm or injury was caused by an act of God, and
therefore, they should not be held liable for it.
The essential ingredients of these general defences in tort are:
a. The harm or injury suffered was due to natural events beyond
human control.
b. The defendant could not have prevented the harm or injury.
Illustration: A sudden flood damages a property, and the property
owner cannot claim damages from the government as the flood was
caused by a natural event beyond human control.
In the case of Kallu Lal v. Hemchand, the wall of a building collapsed
due to rainfall of about 2.66 inches, which was considered normal. The
collapse resulted in the death of the respondent’s children. The court
held that the defence of Act of God cannot be applied by the
appellants in this case, as the amount of rainfall was not sufficient to
invoke such a defence. Thus, the appellants were held liable for the
incident.
Private defence
The defence of private defence means that the defendant acted in self-
defence or defence of another person or property. The defendant can
argue that their actions were necessary to protect themselves or
others from harm or injury.
The essential ingredients of this defence are:
a. The defendant must have acted in self-defence or defence of
another person or property.
b. The defendant’s actions must have been necessary to prevent harm
or injury.
Illustration: Jack sees a person assaulting his friend, and he
intervenes to protect his friend. Jack cannot be held liable for any harm
or injury caused to the assailant as he acted in defence of his friend.
The case of Bird v. Holbrook involved the plaintiff, a trespasser, who
was injured by spring guns installed by the defendant in his garden
without any warning. The court ruled that the defendant was not
justified in his actions and that the plaintiff was entitled to
compensation for their injuries.
Similarly, in Ramanuja Mudali v. M. Gangan, the defendant had laid
a network of live wires on their land, which caused serious injuries to
the plaintiff who crossed the land at night without notice. The court
held the defendant liable for their actions, as the use of live wires was
not justified.
In Collins v. Renison, the plaintiff was thrown off a ladder by the
defendant when he attempted to nail a board on the defendant’s
garden wall. The defendant argued that he had only gently pushed the
plaintiff, but the court ruled that the force used was not justifiable as a
defence.
Mistake
The defence of mistake means that the defendant made an honest
mistake and did not intend to cause harm or injury. The defendant can
argue that they did not have the required knowledge or information to
act differently.
The essential ingredients of this defence are:
a. The defendant made an honest mistake.
b. The mistake was made in good faith.
c. The mistake was not intentional.
Illustration: John, a doctor, prescribes the wrong medicine to a
patient due to a mix-up in the patient’s medical history. The patient
suffers an adverse reaction to the medicine. However, John cannot be
held liable for the harm caused as he made an honest mistake.
In the case of Morrison v. Ritchie & Co, the defendant mistakenly
published a statement that the plaintiff had given birth to twins in good
faith when in reality the plaintiff had only been married for two
months. The defendant was held liable for the tort of defamation, and
the fact that they acted in good faith was considered irrelevant in this
case.
Similarly, in Consolidated Company v. Curtis, an auctioneer
mistakenly believed that the goods he auctioned off belonged to his
customer. However, the true owner filed a suit against the auctioneer
for the tort of conversion. The court held the auctioneer liable and
stated that the defence of mistake of fact is not applicable in this case.
Necessity
The defence of necessity means that the defendant’s actions were
necessary to prevent a greater harm or injury. The defendant can
argue that their actions were necessary under the circumstances to
prevent harm or injury to themselves or others.
The essential ingredients of this defence are:
a. The defendant’s actions were necessary to prevent greater harm or
injury.
b. The defendant’s actions were not disproportionate to the harm or
injury prevented.
Illustration: A firefighter breaks into a house to put out a fire, causing
damage to the property. However, the firefighter cannot be held liable
for the damage caused as their actions were necessary to prevent
harm to human life.
The defendant in the case of Carter v. Thomas entered the plaintiff’s
land in order to extinguish a fire in good faith, while the fire
extinguishing workers were already on the premises. However, despite
his good intentions, the defendant was found guilty of the offence of
trespass.
Similarly, in Kirk v. Gregory, A’s sister-in-law hid some jewelry in the
room where A was lying dead, believing it to be a safer place. The
jewellery was subsequently stolen, and a case was filed against A’s
sister-in-law for trespass to the jewelry. The court found her liable for
trespass as her actions were deemed unreasonable.
Statutory authority
The defence of statutory authority means that the defendant was
acting under the authority of a statute. The defendant can argue that
their actions were permitted by law, and therefore, they should not be
held liable for any harm or injury caused.
The essential ingredients of this defence are:
a. The defendant was acting under the authority of a statute.
b. The defendant’s actions were permitted by law.
Illustration: A police officer uses force to subdue a suspect while
making an arrest. The police officer cannot be held liable for the harm
or injury caused as their actions were authorized by law.
In the case of Hammer Smith Rail Co. v. Brand, the plaintiff’s
property value decreased due to the loud noise and vibrations
produced by the trains on the railway line constructed under a
statutory provision. The court ruled that the defendant could not be
held liable for damages as the construction was authorized by the
statute, serving as a complete defence.
Similarly, in Smith v. London and South Western Railway Co., the
defendant’s servants left the trimmings of hedges near the railway
line, which caught fire due to sparks from the engine and caused
damage to the plaintiff’s cottage. The court held the railway authority
liable for negligence and ordered them to pay compensation to the
plaintiff for the loss suffered.
Conclusion
General defences in tort law provide defendants with the legal
framework to protect their legal rights and interests. However, it is
essential to note that the availability and effectiveness of these
defences will depend on the specific circumstances of each case. It is
the responsibility of the court to carefully consider the evidence
presented by both parties and determine whether a defence is valid or
not.