General Defences in Tort

By Dr. Sapna Bansal

 Introduction
“Defence” refers only to arguments offered by the defendant that, if accepted, would
permit the defendant to escape from liability even if all of the elements of the tort in which
the claimant sues are present.

Denials of elements of the claimant’s cause of action (such as a contention by the

defendant that he acted reasonably in the context of proceedings in the tort of negligence)
are consequently not counted as defences.

Rules that do not prevent liability from arising, but which merely affect the remedy to
which a successful claimant is entitled (such as the doctrines of contributory negligence
and mitigation of damage) are not counted as defences either.
 Volenti non fit injuria or Leave and Licence
Act of God
Inevitable accident
Act of State
Private defence
Types of Mistake

defences Statutory authority

Damage incident to authorised acts
Necessity
Plaintiff, a wrongdoer
Contributory Negligence
 VOLENTI NON-FIT INJURIA
When a person consents to the infliction of harm upon himself, he cannot avail himself of any remedy for that because he wilfully gave
up his right. The consent of the person can be expressed or implied. The question of application of this defence may arise only if it is
established that a tort has been committed by the defendant. The defendant can avoid his liability only if he proves that the plaintiff
consented not only to the physical risk or damage but also to the legal risk, i.e., the risk of actual damage for which there will be no
redress at law. For example, a fair blow in a boxing match and a welcome embrace are not batteries because the claimant consents to
them. It follows that the plea of consent is a denial and not a defence.

Consent may be implied- Consent may be implied from conduct as well as expressed in words. The very acts of taking part in a boxing
match or presenting one’s arm for injection, for example, clearly conveys consent.

Lakshmi Rajan vs. Malar Hospital Ltd. and Anr. (1993)

In this case, the plaintiff visited the hospital due to the presence of a painful lump in her breast. It was completely unrelated to her
uterus but when the surgery was performed, the doctor removed her uterus without any explanation.

The court held the hospital liable because the plaintiff gave her consent regarding the removal of the lump in her breast and not the
removal of the uterus.
 Limitations of the maxim
Consent must be voluntary and free.

Knowledge does not necessarily imply assent or consent.

The maxim does not apply to cases of negligence.

The maxim does not apply to rescue cases.

 Continued…….
1. Consent must be voluntary and free- Consent must be freely given- “Consent” that is obtained by threats is not
consent at all. An adult of full understanding may choose whether to receive medical treatment even if the treatment is
necessary to save his life and we have considered the capacity of minors and mentally disordered persons to give consent.

Hall vs. Brooklands Auto Racing Club (1933)

In this case, the plaintiff went to see a motor car race that was held at Brooklands. During the race, a collision occurred
between two cars; one of them hit the spectators, injuring the plaintiff. He sued the defendant company that owned the
tracks. The courts held that since the risk was reasonably foreseeable, considering the dangerous nature of the sport, the
defendant company is not liable.

Padmavathi and Ors. vs. Dugganaika and Ors. (1974)

In this case, two strangers voluntarily took a lift in a jeep. Suddenly, due to some mechanical defect, the Jeep toppled, and
they suffered injuries. The driver and owner of the jeep were sued. The court held that since the plaintiff willingly took the
lift and the accident was not reasonably foreseeable, the defendants were not liable.
 Continued…….
Consent obtained under compulsion

For instance, if I ask my servant to clean the roof despite the scorching heat when it is very much reasonably foreseeable that
he might fall sick, otherwise he would be removed from service. If he falls sick, then volenti non fit injuria will not apply
because he did not have a choice; he was under compulsion. That’s why he consented to such dangerous work, not out of his
free will.

On the other hand, if an employee does his work carelessly or in a dangerous environment under no compulsion and incurs
damages, he cannot sue the employer because the defence of volenti non fit injuria will be applicable.
 Continued…….
If consent is obtained by fraud

Fraud and concealment- What is the position where the claimant’s consent is obtained by fraud? Likewise, what is the
situation if the defendant fails to disclose some fact (e.g. the fact that he is suffering from a contagious disease) that would
have led to the other party to withhold consent had he known the truth? The view long prevailed that the consent was valid
so long as the claimant is not deceived as to the essential nature of the defendant’s act or the identity of the actor. Thus, to
borrow the facts of a criminal case, a defendant will be liable in battery if he falsely represents to a naïve claimant that he is
performing a technique that will improve her singing when he is in fact having sexual intercourse with her and the claimant is
fooled by that representation. But the defendant will not be liable in battery to the claimant if he persuades the claimant to
have sexual intercourse with him by promising payment or marriage when he has no intention of fulfilling such promises (but
there might be liability in deceit.

R vs. Williams (1998)

In this case, the defendant was a music teacher who raped his 16-year-old student by stating that the act would improve her
voice. She gave her consent but did not understand the purpose of the sexual act. The court did not excuse the defendant
because he obtained consent. After all, it was obtained fraudulently.
 Continued…….

2. Knowledge does not necessarily imply assent or consent

Mere knowledge of the risk or danger is not sufficient, the plaintiff must have assented to it also.

Smith vs. Baker (1891)

In this case, the plaintiff used to work for a railroad corporation. His work included drilling holes in rocks next to a crane,
operated by the corporation’s employees. Once, it so happened that the plaintiff was not warned before the operation of the
crane and it flung stones over his head, thereby injuring him. The plaintiff was aware of the dangerous nature of his job. The
plaintiff sued the defendant. The House of Lords held the defendant liable and did not grant the defence of volenti non fit
injuria, as mere knowledge of the harm does not imply consent to that harm.

A mistaken belief in consent will not prevent liability from arising- It seems that the fact that D mistakenly believed that C
consented to the interference with his person or property has no bearing on liability. This is so even if the mistake is
reasonable. Suppose that D, a doctor, performs on Patient A an operation authorised by Patient B thinking that Patient A was
Patient B. Even if D’s mistake is reasonable, he is clearly liable to Patient A.
 Continued…….
3. The maxim does not apply in cases of negligence-

Even if it is shown that the plaintiff has assented to bear the risk usually it does not include the negligence of the defendant.
In Slater v. Clay Cross Co. Ltd. And Wooldridge v. Summer, the accident took place due to the invitation of the conductor and
negligence of the driver and because of which a passenger was seriously injured and died subsequently. After the invitation of
the conductor to the passengers to travel on the roof of the bus, the duty to care had increased. Therefore, they themselves
and their owner would be liable.

In Dr. Laxman Balkrishna Joshi v. Dr. Trimbak Bapu Godbole, Sc explained the law saying: “ A person who holds himself out
ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose.
Such a person when consulted by a patient owes him certain duties, viz. a duty of care in deciding whether to undertake the
case, a duty of care in deciding the treatment to give or a duty of care in the administration of that treatment. A breach of any
of those duties gives a right of action for negligence.” in this case a boy lost his life because of the shock resulting from
reduction of the fracture attempted y the appellant without taking the elementary caution of giving anaesthesia to the
patient. The SC upheld the verdicts of trial and high court and held the doctor liable for negligence and liable for damages.
 Continued…….
4. Rescue cases

Though the plaintiff voluntarily takes the risk to save somebody from the danger caused by the wrongful act of the defendant,
yet the defendant won't succeed on the plea of volenti non fit injuria. E.g. A pushes B into a well to save a child. The child is
saved but B’s leg is fractured. B sues A for damages. A will be liable to pay damages.

The principle is that if one person by his negligence causes another to be in a position of danger, he should have regard to the
probability that a third person, acting bravely and promptly may attempt a rescue.

Haynes vs. Harwood

Haynes, the plaintiff, was a police officer on duty at a popular street police station. A lot of people, including children, visited
him often. A delivery van with two horses that belonged to the defendants (Harwood) was abandoned on the same street
without a driver. No one had intervened when the two youngsters had thrown a stone at one of the horses at this time.

The horses started running suddenly. To safeguard women and children, the policeman darted out and seized one of the
horses and succeeding in pulling them up but in doing so, he injured himself badly. The court did not grant the defence
of volenti non fit injuria and Hardwood was held liable.
 Continued…….
5. Unfair Contract Terms act 1977-
Section 2(1) of the above Act prohibits a person to exclude or restrict the liability for death or personal injury resulting from
negligence by a contract term or notice or a notice given to the person generally.

Section 2(2) deals with loss or damage other than death or personal injury. In this connection, everything depends upon the
reasonableness of the terms or notice. If these are reasonable, they can exclude or restrict the liability.

Section 2(3) provides that besides any such agreement or awareness of the risk, there must be some evidence confirming
plaintiff’s consent and voluntary acceptance of the risk.

Any explicit usage of unfair terms in a contract is hit by Section 23 of the Indian Contract Act, 1872. Such terms which are
patently unfair and unreasonable are held to be void and classified as opposed to public policy.
 Inevitable accident
This general defence comes into play when there has been a genuine accident where all reasonable care was taken by the
defendant, but still, the accident occurred, and injury was caused to the plaintiff. The accident is not natural. Any accident
which could have been avoided by a reasonable man by taking precautions at the time of the accident cannot be called an
inevitable accident.

In Brown vs. Kendall, the defendant’s and plaintiff’s dogs got into a fight. The plaintiff tried to intervene to stop the fight and
consequently, he hit the plaintiff in the eye. The courts held the defence of an inevitable accident applicable and therefore
acquitted the defendant.

In Holmes vs. Mather, the defendant’s servant was driving the horses on a public highway when suddenly a dog started
barking, which alarmed the horses. Despite the reasonable care taken by the defendant’s servant, the horses could not be
managed and thus they injured the plaintiff. The court ruled in favour of the defendant because it was an inevitable accident
that led to injuring the plaintiff.

In Stanley vs. Powell, Both the defendant and plaintiff were members of the shooting party and went for pheasant shooting.
The defendant aimed at the pheasant, but the shot glanced off an oak tree and hit the plaintiff. The defendant was held not
liable.

The plea of inevitable accident is that the consequences complained of as a wrong were not intended by the defendant and
could not have been foreseen and avoided by the exercise of reasonable care and skill.
 Act of God
This general defence is like the earlier one of inevitable accidents, except for the fact that in this defence, the accident occurs
due to natural forces and does not involve human interventions and that it could not have been prevented by any amount of
foresight and pains and care reasonably to have been expected from the defendant. The occurrence must be extraordinary
and not one that can be reasonably foreseeable.

In Nichols vs. Marsland, the defendant made some artificial lakes on his land by damming some natural streams. The
embankments of the lake gave way when there was an extraordinary rainfall, which was an extraordinary occurrence. The
courts held the defendant not liable because the occurrence was indeed extraordinary and thus the defence of the act of God
was granted.

In Greenock Corporation v. Caledonian Railway, the House of Lords criticised the decision of Nochols v. Marsland. In this case
the defendant was the corporation who build a paddling pool in the bed of the stream and for this purpose they had to
change the course of the steam. Due to extra-ordinary rainfall, the stream water overflowed at the pond and water flooded
the public street and plaintiff’s property got damaged. Had the natural flow of the steam not been obstructed, great volume
of water would have been carried off by the stream. The House of Lords held that the rainfall was not the act of God and
hence corporation was liable.
 Act of God
In the landmark case of R.R.N. Ramalinga Nadar vs. V. Narayan Reddiar, the court grappled with the legal implications of a
robbery incident that occurred during the transportation of goods in the defendant’s truck. The question before the court
was whether the defendant could be held liable for the loss of the goods or whether the incident could be attributed to an
act of God, absolving the defendant of any responsibility.
The facts of the case revealed that the defendant had undertaken the transportation of goods on behalf of the plaintiff.
During the transportation, an unruly mob intercepted the truck and forcibly took away the goods. The plaintiff subsequently
filed a suit against the defendant, seeking compensation for the loss suffered.
The defendant, in his defence, argued that the robbery was an act of God and hence, he could not be held liable for the loss.
The defendant contended that the act of the unruly mob was an unforeseen and irresistible event beyond his control and,
therefore, he should be exonerated from any liability.
The court, after carefully considering the arguments presented by both parties, held that the robbery did not constitute an
act of God. The court reasoned that while the act of the unruly mob was undoubtedly unforeseen, it was not irresistible. The
court noted that the defendant could have taken reasonable steps to protect the goods, such as hiring security personnel or
choosing a safer route for transportation. The court further observed that the defendant had failed to exercise due care and
diligence in ensuring the safety of the goods entrusted to him.
Consequently, the court held the defendant liable for the loss of the goods and ordered him to pay compensation to the
plaintiff. This decision reinforced the principle that carriers are generally held responsible for the safety of goods entrusted to
them during transportation and cannot escape liability by simply attributing the loss to an act of God. The court’s ruling
serves as a reminder to carriers of the importance of taking adequate measures to safeguard the goods they transport and to
ensure that they are not exposed to
 Kallulal and Anr. vs. Hemchand and Ors. (1957)

In this case, the wall of the defendant’s building collapsed in the rainy season, which resulted in the deaths of the
plaintiff’s two children. The Madhya Pradesh High Court did not grant the defence of the act of God because rainfall of
this magnitude in context was not something extraordinary.
The defendant argued that the collapse of the wall was an act of God and that he could not be held liable for the deaths
of the children. However, the court rejected this defence, holding that the rainfall in question was not so extraordinary as
to be considered an act of God. The court noted that the area in which the incident occurred was prone to heavy rainfall
during the monsoon season and that the defendant should have taken steps to prevent the collapse of the wall.
The court’s decision in this case has had a significant impact on the law of torts in India. It established the principle that
an act of God is not a defence to liability if the defendant could have reasonably foreseen the event and taken steps to
prevent it. This principle has been applied in numerous subsequent cases involving claims for damages caused by natural
disasters and other acts of nature.
The Kallulal case is also notable for its discussion of the concept of negligence. The court held that the defendant was
negligent in failing to take steps to prevent the collapse of the wall. This finding was based on the fact that the defendant
knew that the wall was in a state of disrepair and that it was likely to collapse if it was not repaired.
The court’s decision in the Kallulal case has been criticised by some scholars, who argue that it is too strict and that it
places an unfair burden on landowners. However, the decision has also been praised by others, who argue that it is
necessary to protect the public from harm caused by dangerous structures.
 Private Defence
It is permissible to use reasonable force to protect one’s person or property. Essential conditions for this defence include the use of reasonable
force, and the threat for which force is being used must be immediate and reasonably foreseeable; that is, the aggressor must be capable of
causing the harm. It must be necessary to use force, and any immediate help must be unavailable, to exercise the right to private defence.

The private defence is of two types- Private defence of person and Private defence of property

Private defence of person- Right of private defence of person extends to one’s spouse and family. But the use of force in exercise of defence
must be reasonable and proportionate (Question of fact).

In Vishvas Aba Kurana vs. State of Maharashtra, The SC held that it is well settled that to claim a right of private defence extending to voluntary
causing of death, the accused must show that there were circumstances giving rise to reasonable grounds for apprehending that either death or
grievous hurt would be caused to him.

Bird vs. Holbrook

In this case, the defendant set up spring guns in his garden without any notice or warning about the same. The plaintiff, who was a trespasser
over the defendant’s land, got injured and brought up a suit against the defendant. The defendant pleaded that the traps were set up for the
protection of property, but the defence of private defence was not granted by the courts because it was essential to post a warning or notice,
and without either, it seems more probable that the defendant wanted to scare people off rather than protect his property.
 Continued……
The necessity element- The necessity element imports an imminence requirement. Unless the defendant is faced with an
imminent threat it will not be necessary for him to use defensive force, as the defendant could in this situation have avoided
the threat by seeking help from the police.

Mistaken defensive force- What if D uses force against C because of a mistake (e.g. he believes that C is about to attack him
when C in fact has no intention of doing so)? The criminal law provides that D is not guilty of a crime if his action would have
been justified if the facts had been as he believed them to be. The mistake need not be a reasonable one. It follows that, under
the criminal law D as a result of a wholly unreasonable mistake can kill a person who he thought was about to murder him
without incurring any liability. Tort law adopts a different rule. In the case of a civil action D will only be entitled to the defence
of selfdefence where he uses defensive force as a result of a mistake if his mistake was a reasonable one. A rule that made no
allowance of mistakes is thought to be too favourable to claimants. Conversely, the criminal law rule, which makes the defence
of self-defence available even where the defendant made an unreasonable mistake, is considered to be too generous to
defendants in the tort law context (although it might be appropriate in the criminal law, where the defendant’s interests are
given priority). Allowing for mistakes but insisting that they be reasonable ones before making the defence available in the tort
context is regarded as achieving a fair balance between equal parties
 Continued…….
Innocent aggressors- Suppose that D is attacked by someone who is insane, or endangered by a baby holding a gun. Is D
allowed to use defensive force against such persons in order to save himself? There is a lack of authority on this point, but the
answer must be in the affirmative. It is irrelevant for the purposes of tort law that the aggressor would not incur criminal
liability.

Injury caused to bystanders- Suppose that D in protecting himself from an unlawful attack by X, injures C, an innocent passer-
by. Imagine also that D acted reasonably in the circumstances. On what principles ought D’s liability to C be discussed? The
situation is unclear. There are several incorrect answers to this question that must be moved out of the way. First, it is not the
case that there is no tort. D has committed a battery against C by virtue of the doctrine of transferred malice. Secondly, D
cannot avoid liability on the grounds of private necessity (i.e. that he inflicted a harm on a third-party in order to protect his
own interests) because tort law does not recognise such a defence. Arguably, D is simply liable to C. 65 Significantly, C is not like
an innocent aggressor. C did not present any threat at all to D. It should be noted, however, that in this scenario, D, if he is liable
to C, might be able to seek an indemnity from X.
 Private defence of property
Actual possession (whether with a good title or not), or the right to possession of property is necessary to justify force in
keeping out (or, for that matter, expelling) a trespasser. Thus, in Holmes v Bagge, the claimant and defendant were both
members of the committee of a cricket club. During a match in which the defendant was captain and the claimant was a
spectator, the defendant asked the claimant to act as substitute for one of the eleven players. He did so, but being annoyed at
the tone of the defendant in commanding him to take off his coat, he refused either to remove the garment or to leave the
playing part of the field. He was then forcibly removed by the defendant’s direction. The defendant, when sued for assault,
pleaded possession of the ground, but the plea was held to be bad because possession was in the committee of the club. Note,
however, that a person who does not have possession of the land may use reasonable force against persons thereon who
obstruct him in carrying out statutory powers, and it may be that if the defendant in Holmes v Bagge had pleaded that he
removed the claimant for disturbing persons lawfully playing a lawful game he would have been justified. The outcome may
also have been different if the defendant had been acting at the request of the committee of the club.
 MISTAKE
A mistake by the defendant can prevent the claimant from establishing the elements of the cause of action in which he sues.
First, the fact that the defendant made a reasonable mistake can prevent the action in negligence from being constituted. If the
injury to the claimant was the result of a mistake that the reasonable person would have committed no liability will arise in that
tort. There will be no breach of any duty of care.

Secondly in the tort of malicious prosecution, one of the elements of that tort is a lack of reasonable and probable cause of the
prosecution. Accordingly, if the defendant in proceedings in that tort mistakenly but reasonably believed that there is cause of
prosecution the tort will not be constituted.

Where defendant will be liable despite innocent mistake-There are many torts the elements of which may be satisfied even if
the defendant committed a mistake, regardless of whether the mistake was a reasonable one. A good illustration is the tort of
conversion. Thus, an auctioneer who innocently sells A’s goods in the honest and reasonable belief that they belong to B on
whose instructions he sells them will be liable to A. The situation in relation to trespass to the person is the same. A surgeon
who, as a result of an administrative mix-up, carries out the wrong operation or who operates on the wrong patient is liable in
trespass to the person. It should be noted, however, that in all of these examples the “innocent” wrongdoer may be entitled to
be indemnified by the person responsible for the mistake.
 STATUTORY AUTHORITY
If a tort is committed during an act authorised by the legislature or done on its orders, then the defence of statutory authority
is granted against obvious as well as consequential injury. This defence can be asserted against both obvious injuries, which are
directly and reasonably foreseeable consequences of the authorised act, and consequential injuries, which are indirect or
unintended consequences.

The rationale behind this defence is that individuals should not be held liable for actions taken in compliance with the law. The
legislative authorization is deemed to provide a sufficient justification or excuse for the actions, even if they would otherwise
constitute a tort. For example, if a police officer arrests an individual pursuant to a valid warrant, the officer is not liable for
false arrest, even if the warrant was later found to be invalid.

However, the defence of statutory authority is not absolute. It may be defeated if the individual exercising the statutory
authority exceeds the scope of their authority, acts in a negligent or reckless manner, or fails to comply with any applicable
procedures or regulations. Furthermore, the defence is not available if the authorised act is inherently dangerous or if it
violates a fundamental right.
 Continued…….
Vaughan vs. The Taff Vale Railway Company (1860)

In this case, an engine belonging to the defendant’s railway company emitted sparks, which led to the plaintiff’s woods catching
fire. The courts did not hold the defendant liable because reasonable care was taken by the company and the act was done in
compliance with the statute, thus defence of statutory authority was given.

Hammersmith Rail Co. vs. Brand (1868)

In this case, the value of the plaintiff’s land depreciated due to noise and smoke caused by the running of trains for the
defendant’s company. The court granted the defence of statutory authority in this case.

Smith vs. London and South Western Railway Co. (1903)

In this case, the plaintiff’s cottage, which was located about 200 yards away from the railway line, caught fire. He brought up a
suit against the railway company for their negligent actions. It was established that the workers of the railway company left
trimmings of grass and hedges near the railway line, due to which, when the engine emitted a spark, the material caught fire,
and due to strong winds, the fire reached the plaintiff’s cottage. The courts held the defendant’s company liable and did not
grant the defences of statutory authority.
 Continued…….
In Great Central railway vs. Hewlett, Lord parker aptly observed that despite the fact that the commission of an act or exercise
of a power has been authorised under or conferred by a statute, those who are responsible for the commission of an act or
exercise of some power have to act reasonably and without negligence. If the thing is done negligently and thereby causing
injury to any person or his property, action will lie.
 NECESSITY
This defence lays down certain conditions where intentional damage to an innocent person is also permissible by law, provided
that the action is taken to prevent larger damage.

Kirk vs. Gregory (1876)- In this case, a person dies, and his sister-in-law takes off the jewellery and places it in another room,
thinking of it as a safer place. The person’s executors sued her for trespass. The courts held the sister-in-law liable because the
interference was not reasonably necessary and the defence of necessity was not granted.

Carter vs. Thomas (1935)- In this case, the defendant went to the plaintiff’s house to extinguish the fire when the firemen had
already arrived. The plaintiff sued the defendant for trespass. The court did not grant the defence of necessity in this case
because the firemen had already arrived and the defendant was held liable.

Cope vs. Shape- In this case, the defendant was sued by the plaintiff for trespass because he entered the plaintiff’s property to
prevent fire from spreading to the adjoining land, over which his master held shooting rights. The courts did not hold the
defendant liable and granted the defence of necessity as the action was done reasonably.
 PLAINTIFF, THE WRONGDOER
In this general defence, it is stated that if the plaintiff himself is at fault( by committing an illegal act) then he cannot file a suit
against the defendant, even if he has incurred damages. But the plaintiff’s unlawful conduct or act on his own part is to be
connected with the harm suffered by him as part of the same transaction.
It is governed by the maxim- Ex turpi causa non oritur actio, which means “from an immoral cause, no action arises.”
Hamps vs. Darby (1948)
The plaintiff’s pigeons were let out on the defendant’s pea crop. The defendant, after shouting at them, fetched a gun and shot
at them, killing four and wounding one. The courts decided in favour of the plaintiff, and the defence of the plaintiff, the
wrongdoer, was rejected.
Collins vs. Renison
The plaintiff climbed a ladder to put a notice on the defendant’s garden wall. On refusal to come down the ladder, he pushed
the plaintiff off the ladder, which he pleaded, was in a very gentle way. However, the court gave its judgement in favour of the
plaintiff.
Bird vs. Holbrook
In this case, the defendant set up spring guns in his garden without any notice or warning about the same. The plaintiff, who
was a trespasser over the defendant’s land, got injured and brought up a suit against the defendant. The court granted the
compensation claim by the plaintiff.
Pitts vs. Hunt (1991)
In this case, there was a driver and his friend on a motorcycle who had been drinking. The friend encouraged him to drive
negligently and in a rash manner. They met with an accident where the driver died and his friend was severely injured. The
court refused to grant damages to the pillion.