CUZL 213 LAW OF TORT:

GENERAL DEFENCES
Introduction

• Whenever a case is brought against the defendant for the commission of

a tort and all the essential elements of that wrong are present, the
defendant would be held liable for the same. Even in such cases, the
defendant can avoid his liability by taking the plea of the defenses
available under the law of torts. 
• Some defences are particularly relating to some offences. In the case of
defamation, the defences available are fair comment, privileges and
justification, etc.
• Let’s see what are these defences available to a person under the law of
tort and how can it be pleaded along with some of the important cases.
Meaning of General Defences 

• When a plaintiff brings an action against the defendant for a tort

committed by him, he will be held liable for it, if there exists all
the essential ingredients which are required for that wrong.
• But there are some defences available to him using which he can
absolve himself from the liability arising out of the wrong
committed.
‘General defences’

• These are known as ‘General defences’ in the law of tort. 

• The defences available are given as follows:
• Volenti non fit injuria or the defense of ‘Consent’
• The wrongdoer is the plaintiff
• Inevitable accident
• Act of god
• Private defense
• Mistake
• Necessity
• Statutory authority
Volenti non fit injuria

In case, a plaintiff voluntarily suffers some harm, he has no remedy for that
under the law of tort and he is not allowed to complain about the same.
The reason behind this defence is that no one can enforce a right that he has
voluntarily abandoned or waived. Consent to suffer harm can be express or
implied. 
Examples of the defence

• Some examples of the defence are:

• When you yourself call somebody to your house you cannot sue your guests for
trespass; 
• If you have agreed to a surgical operation then you cannot sue the surgeon for it;
and
• If you agree to the publication of something you were aware of, then you cannot
sue him for defamation.
• A player in the games is deemed to be ready to suffer any harm in the course of
the game.
• A spectator in the game of cricket will not be allowed to claim compensation for
any damages suffered.
Should not go beyond the limit of what has
been consented.

• For the defence to be available the act should not go beyond the limit
of what has been consented.
• In Hallv. Brooklands Auto Racing Club [1933] 1 K.B. 205 the plaintiff
was a spectator of a car racing event and the track on which the race
was going on belonged to the defendant. During the race, two cars
collided and out of which one was thrown among the people who were
watching the race. The plaintiff was injured.
• The court held that the plaintiff knowingly undertook the risk of
watching the race. It is a type of injury which could be foreseen by
anyone watching the event. The defendant was not liable in this case.
Strangers taking a lift

• In Padmavati v. Dugganaika (1975) 1 Kam LJ 93], the driver of the

jeep took the jeep to fill petrol in it. Two strangers took a lift in
the jeep. The jeep got toppled due to some problem in the right
wheel.
• The two strangers who took lift were thrown out of the jeep and
they suffered some injuries leading to the death of one person. 
Driver not liable

• The conclusions which came out of this case are:

• The master of the driver could not be made liable as it was a case
of a sheer accident and the strangers had voluntarily got into the
vehicle.
• The principle of Volenti non fit injuria was not applicable here.
Plaintiff taking pictures standing at boundary
of the arena

• In Wooldrige v. Sumner [1963] 2 QB 43, a plaintiff was taking some

pictures standing at the boundary of the arena.
• The defendant’s horse galloped at the plaintiff due to which he
got frightened and fell into the horse’s course and was seriously
injured. The defendants were not liable in this case since they had
taken due care and precautions. 
Effect of force generated through the extra
pull

• In the case of Thomas v. Quartermaine (1887) 18 QBD 685, the

plaintiff was an employee in the defendant’s brewery. He was
trying to remove a lid from a boiling tank of water.
• The lid was struck so the plaintiff had to apply an extra pull for
removing that lid. The force generated through the extra pull
threw him in another container which contained scalding liquid
and he suffered some serious injuries due to the incident.
• The defendant was not liable as the danger was visible to him and
the plaintiff voluntarily did something which caused him injuries. 
Defendant knowingly undertook the risk

• In Illot v. Wilkes (1820) 3 B & Ald 304, a trespasser got injured due
to spring guns present on the defendant’s land.
• He knowingly undertook the risk and then suffered injuries for the
same. This was not actionable and the defendant was not liable in
the case. 
• Similarly, if you have a fierce dog at your home or you have
broken pieces of glass at the boundaries, all this is not actionable
and is not covered under this defence. 
Rescue cases

• When the plaintiff voluntarily comes to rescue someone from a danger

created by the defendant then in such cases the defence of volenti non fit
injuria will not be available to the defendant.
• In Haynes v. Harwood[2 (1986) ACC 393, the defendants’ servant left two
unattended horses in a public street. A boy threw a stone on the horses due
to which they bolted and created danger for a woman and other people on
the road. So, a constable came forward to protect them and suffered
injuries while doing so. This being a rescue case so the defence of volenti
non fit injuria was not available and the defendants were held liable.
• However, if a person voluntarily attempts to stop a horse which creates no
danger then he will not get any remedy. 
Rescue of friend

• In the case of Wagner v. International Railway [1936] 1 KB 146, a

railway passenger was thrown out of a moving train due to the
negligence of the defendants. One of his friends got down, after
the train stopped, to look for his friend but then he missed the
footing as there was complete darkness and fell down from a
bridge and suffered from some severe injuries. The railway
company was liable as it was a rescue case.
Employer’s negligence

• In Baker v. T.E. Hopkins & Son [1921], due to the employer’s negligence,
a well of a petrol pump was filled with poisonous fumes. Dr. Baker was
called to help but he was restricted from entering the well as it was
risky.
• He still went inside to save two workmen who were already stuck in the
well. The doctor himself was overcome by the fumes and then he was
taken to the hospital where he was declared dead. When a suit was filed
against the defendants, they pleaded the defence of consent.
• The court held that in this case the defence cannot be pleaded and the
defendants, thus, were held liable.
Defendant liable to two plaintiffs

• If A creates danger for B and he knows that a person C is likely to

come to rescue B. then, A will be liable to both B and C. Each one of
them can bring an action for the same, independently. 
• If someone knowingly creates danger for himself and he knows that he
will likely be rescued by someone, then he is liable to the rescuer. 
• In Hyett v. Great Western Railway Co. [1959] 1 WLR 966
• ], the plaintiff got injured while saving the defendant’s cars from a
fire which occurred due to negligence on the part of the defendants.
The plaintiff’s acts seemed to be reasonable and the defendant was
held liable in this case.
Volenti non fit injuria and Contributory negligence 

• Volenti non fit injuria is a complete defence but the defence of

contributory negligence came after the passing of the Law Reform
(Contributory Negligence) Act, 1945.
• In contributory negligence, the defendant’s liability is based on
the proportion of fault in the matter.
Contributory negligence

• In the defence of contributory negligence, both are liable – the

defendant and the plaintiff, which is not the case with volenti non
fit injuria.
• In volenti non fit injuria, the plaintiff knows the nature and extent
of danger which he encounters and in case of contributory
negligence on the part of the plaintiff, he did not know about any
danger.
Plaintiff the wrongdoer

• There is a maxim “Ex turpi causa non oritur actio” which says
that “from an immoral cause, no action arises”. 
• If the basis of the action by the plaintiff is an unlawful contract
then he will not succeed in his actions and he cannot recover
damages.
Plaintiff the wrongdoer

• If a defendant asserts that the claimant himself is the wrongdoer

and is not entitled to the damages, then it does not mean that the
court will declare him free from the liability but he will not be
liable under this head.
• In the case of Bird v. Holbrook [1948] 1 K.B. 345, the plaintiff was
entitled to recover damages suffered by him due to the spring-
guns set by him in his garden without any notice for the same. 
Defendant encouraging plaintiff

• In Pitts v. Hunt [1825], there was a rider who was 18 years of age.
He encouraged his friend who was 16 years old to drive fast under
drunken conditions.
• But their motorcycle met with an accident, the driver died on the
spot. The pillion rider suffered serious injuries and filed a suit for
claiming compensation from the relatives of the deceased person.
This plea was rejected as he himself was the wrongdoer in this
case
Inevitable accident

• Accident means an unexpected injury and if the same accident

could not have been stopped or avoided in spite of taking all due
care and precautions on the part of the defendant, then we call it
an inevitable accident. It serves as a good defence as the
defendant could show that the injury could not be stopped even
after taking all the precautions and there was no intent to harm
the plaintiff.
Defendant shot friend accidentally

• In Stanley v. Powell [[1990] 3 All ER 344 the defendant and the

plaintiff went to a pheasant shooting.
• The defendant fired at a pheasant but the bullet after getting
reflected by an oak tree hit the plaintiff and he suffered serious
injuries.
• The incident was considered an inevitable accident and the
defendant was not liable in this case. 
Tenant not liable

• In Assam State Coop., etc. Federation Ltd. v. Smt. Anubha Sinha [7

L.T.R. 25, the premises which belonged to the plaintiff were let out
to the defendant.
• The tenant i.e. the defendant requested the landlord to repair the
electric wirings of the portion which were defective, but the
landlord did not take it seriously and failed to do so. Due to a short
circuit, an accidental fire spread in the house.
• No negligence was there from the tenant’s side. In an action by the
landlord to claim compensation for the same, it was held that this
was the case of an inevitable accident and the tenant is not liable
Act of God

• Act of God serves as a good defence under the law of torts. It is also
recognized as a valid defence in the rule of ‘Strict Liability’ in the case
of Rylands v. Fletcher [1868}, The defence of Act of God and Inevitable
accident might look the same but they are different. Act of God is a kind of
inevitable accident in which the natural forces play their role and causes
damage.
• For example, heavy rainfall, storms, tides, etc. 
• Essentials required for this defence are:
• Natural forces’ working should be there.
• There must be an extraordinary occurrence and not the one which could be
anticipated and guarded against reasonably.
Private defence (Self 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.
Justification

• 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.
Trespasser suffered injuries

• In Bird v. Holbrook [1825, 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. 
Use of live wires not justified.

• Similarly, in Ramanuja Mudali v. M. Gangan [AIR 1984 Mad 103], 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.
Force used not justifiable as the defence.

• In Collins v. Renison [1973 QB 100, the plaintiff went up a ladder

for nailing a board on a wall in the defendant’s garden.
• The defendant threw him off the ladder and when sued he said
that he just gently pushed him off the ladder and nothing else.
• It was held that the force used was not justifiable as the defence.
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. 
Defendant held liable for offence of
defamation

• In Morrison v. Ritchie & Co [1902, 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.
Mistake of fact is not a defence

• In Consolidated Company v. Curtis (1892) 1 QB 495, 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. 
Feeding of a person who was hunger-striking in a
prison is a good defence for the tort of battery. 

• For example, performing an operation of an unconscious patient

just to save his life is justified.  
• In Leigh v. Gladstone [1995], 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. 
Defendant not liable for trespass as he was
preventing greater harm

• In Cope v. Sharpe [1891] 1 K.B. 496., 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.
Defendant liable for trespass as firemen were
already there

• In the case of Carter v. Thomas [1976], 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.
Step taken by defendant unreasonable

• In Kirk v. Gregory [1876] 1 Ex. D. 55, 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. 
Defendants not liable

• In Vaughan v. Taff Valde Rail Co [(1858) 157 ER 667, 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. 
Something authorized by any statute or legislature serves as a
complete defence.

• In Hammer Smith Rail Co. v. Brand [1869] LR 4 HL 171, 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.
Conclusion

• This session is to emphasize the important role played by General

Defences in avoiding one’s liability in torts.
• While learning about tort it is necessary to learn about General
Defences in the law of Tort.
Set of ‘excuses’

• General defences are a set of ‘excuses’ that you can undertake to

escape liability. In order to escape liability in the case where the
plaintiff brings an action against the defendant for a particular
tort providing the existence of all the essentials of that tort, the
defendant would be liable for the same. It mentions all the
defences which can be pleaded in cases depending upon the
circumstances and facts.  
• In order to plead a defence it is important to understand it first
and then apply the suitable defence accordingly.