The term Defence
in general consensus of law means safeguarding or
resisting oneself or someone from any act which might been committed by someone
and that act is not in accordance with law. In torts it is referred 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.
To abridge the precise term used in torts is General Defences
which means when a plaintiff brings an action against the defendant
for a tort committed by that person, that person 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 the accused which can be used by
accused to absolve himself from the liability arising out of the wrong
There are adequate defences available for the apparent wrongdoer which can be
used which are:
Volenti non fit injuria:
- Volenti non fit injuria or the defense of 'Consent'
- The wrongdoer is the plaintiff
- Inevitable accident
- Act of god
- Private defense
- Statutory authority
A person V went to see the game of soccer and was in the first row, there was a
penelty kick for the team and V's seat was right behind the goal net, the player
kicked the ball and it went to hit V on his head causing him a mild injury on
his forehead, he bought suit accordingly against the stadium and they player,
they used the defence of 'Volenti non fit injuria' meaning when a person of his
own accord agree's to suffer a harm which may be inflected on that person, the
damages or remedy cannot be claimed for the same.
In the case of Thomas Vs Quartermine
, 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 .
For this defence to be available it's of immense significance that the consent
should be by the free will that of the person and should be obtained by means
which are not forbidden in the eyes of law.
In the case of Lakshmi Rajan Vs Malar Hospital
a 40 year old married woman
noticed a lump in her breast but this pain does not affect her uterus. After the
operation, she saw that her uterus has been removed without any justification.
The hospital authorities were liable for this act. The patient's consent was
taken for the operation not for removing the uterus .
Plaintiff is the Wrongdoer:
The plaintiff will not succeed in bringing an action or recover damages if the
cornerstone is based on unlawful contract terms. It is based on the maxim of
"Ex turpi causa non oritur actio" which says that "from an immoral cause, no
In the case of Pitts VS Hunt
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 .
It means that no damages or action can be bought when the event that has
happened unexpectedly and could not have been foreseen or prevented in time
even with all the reasonable precautions.
In Stanely VS Powell
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 .
Act Of God:
The defences of Act of God is a somewhat significant variety of inevitable
accidents but the key difference in both is that in Act of God natural forces
depict a vital role. For example, storms, flood etc.
The essentials for this 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.
In the case of Nichols v/s 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 .
In order to protect oneself from any harm or danger, it permissible by law to
use a reasonable or justifiable force against that harm or danger but certain
essentials need to be fulfilled in order for the defence to be justifiable or
- 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.
- The force used must be reasonable and to repel an imminent danger.
- For the protection of property also, the law has only allowed taking
such measures which are necessary to prevent the danger.
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 Ramajuna 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.
If an act is done and it causes harm but it is done in good faith in order to
prevent harm, the person who does such an act is not liable. To abridge if an
act is done intentionally in such a way so to prevent a greater threat, the
person performing the act will not be liable.
For example, a doctor may perform a surgery in order to save a patient's life
even though the patient may be unconscious. The doctor won't in any manner be
In the case of Kirk VS 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 .
In the case of Leigh VS 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 a situation where a person willingly and intentionally causes harm to someone
or may even infringe their right, the person no defence even if he/she believed
that acts that they might be doing at that time was justifiable.
There are two types of mistakes:
- Mistake of Fact,
- Mistake of Law.
If a person acts under a mistaken belief in any situation then he/she may use
the defence of mistake to eschew their liability under the tort law.
In the case of Morrison VS 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 the case of Consolidated Company VS 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 .
Any act which may be considered tort can be justifiable if it's authorised by
any act or statute. The injured party cannot get any remedy by a compensation
may be provided for the loss suffered.
Immunity under statutory authority is not provided only for the harm which is
obvious but also for the harm which is incidental.
In the case of Vanghan VS Taff Valde Rail Cosparks
from an engine of the
respondent's railway company were authorised 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 the case Hammer Smith Rail Co. v/s 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 authorised by
any statute or legislature then it serves as a complete defence. The defendant
was held not liable in the case .
Absolute And Conditional Authority:
In the case of Absolute authority, if any harm whether nuisance or any other
there will be absolutely no liability for it, but when the authority is
conditional the same is possible without nuisance or any other harm.
In the case of Metropolitan Asylum District VS Hil the hospital authorities i.e.
the appellants were granted permission to set up a smallpox hospital. But the
hospital was created in a residential area which was not safe for the residents
as the disease can spread to that area. Considering it a nuisance an injunction
was issued against the hospital. The authority, in this case, was conditional .
To conclude, the general defences have an immense and vital role in torts when
it comes to avoiding or escaping certain labilities which may arise. To
understand torts it's important to posses the knowledge of general defences
beside it. In recent times, an abundant matters have been presented before court
which mostly contain the cases of tort and the concept of general defences is
highly applicable when it comes to these cases.
Award Winning Article Is Written By: Mr.Syed Suhaib
- Winfeild & Jolowitz Law Of Torts.
- Ratanlal & Dhirajal Law Of Torts.
- Salmond Torts.
- Blog Ipleaders.
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