8 General Defences Against Tortious Liability: Free Law Notes

8 General Defences Against Tortious Liability- prolawctor
8 General Defences Against Tortious Liability

General Defences in Tort

General defences in Tort: A defence is a plea put forth by the defendant against the claims of the plaintiff.

When 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. The defendant may, however, even in such case, avoid his liability by taking the plea of some defence.

8 General Defences Against Tortious Liability

There are some general defences in tort which may be taken against action for number of wrongs,

Volenti non fit injuria

The maxim itself means – willingness doesn’t cause harm. This means that “if the suffering is willing, no injury is done.” When a person consents to the infliction of harm upon himself, he may have no remedy in Law of Torts. When the plaintiff voluntarily agrees to suffer some harm, he is not allowed to complain for that and his consent serves as a good defence against him. No man can enforce a right which he has voluntarily waived.

Consent can be oral as well as written.

For e.g.: When you invite somebody to your house, you cannot sue him for trespass, nor can you sue the surgeon after submitting to a surgical operation because you have expressly consented to these acts.

For the defence of consent to be available, the act causing the harm must not go beyond the limit of what has been consented. A player in a game of hockey has no right of action if he is hit while the game is being lawfully played. But if there is a deliberate injury caused by another player, the defence of volenti cannot be pleaded. Similarly, if a surgeon negligently performs an operation, he cannot avoid the liability by pleading the defence of consent.

In Hall v. Brooklands Auto Racing Club the plaintiff was a spectator at a motor car race being held at Brooklands on a track owned by the defendant company. During the race, there was a collision between two cars, one of which was thrown among the spectators, thereby injuring the plaintiff. It was held that the plaintiff impliedly took the risk of such injury, the danger being inherent in the sport which any spectator could foresee, the defendant was not liable.

In Padmavati v. Dugganaika, while the driver was taking the jeep tor filling petrol in the tank, two strangers took lift in the jeep. Suddenly one of the bolts fixing the right front wheel to the axle gave way toppling the jeep. The two strangers were thrown out and sustained injuries, and one of them died as a consequence of the same. It was held that neither the driver nor his master could be made liable, firstly, because it was a case of sheer accident and, secondly, the strangers had voluntarily got into the jeep and as such, the principle of volenti non fit injuria was applicable to this case.

  • The consent must be free

For the defence to be available, it is necessary to show that the plaintiff consent to the act done by the defendant was free. If the consent of the plaintiff has been obtained by fraud or under compulsion or under some mistaken impression, such consent does not serve as a good defence. Moreover, the act done by the defendant must be the same for which the consent is given.

  • Mere knowledge does not imply assent

For the maxim volenti non fit injuria to apply, two points have to be proved:

  • The plaintiff knew that the risk is there.
  • He, knowing the same, agreed to suffer the harm.

If only first of these points is present, i.e., there is only the knowledge of the risk, it is no defence because the maxim is volenti non fit injuria. Merely because the plaintiff knows of the harm does not imply that he assents to suffer it.

In Smith v. Baker the plaintiff was a workman employed by the defendants on working a drill for the purpose of cutting a rock. By the help of a crane, stones were being conveyed from one side to the other, and each time when the stones were conveyed, the crane passed from over the plaintiff’s head. While he was busy in his work, a stone fell from the crane and injured him. The employers were negligent in not warning him at the moment of a recurring danger, although the plaintiff had been generally aware of the risk.

It was held by the House of Lords that as there was mere knowledge of risk without the assumption of it, the maxim volenti non fit injuria did not apply and the defendants were liable.

For the defence to be available, it is further necessary that the act done must be the same to which the consent has been given.

Limitations on the scope of the doctrine volenti non fit injuria

The scope of application of the doctrine of volenti non fit injuria has been curtailed

  • in Rescue cases, and
  • by the Unfair Contract Terms Act, 1977 (England).

In spite of the fact that the plaintiff has consented to suffer the harm, he may still be entitled to his action against the defendant in these exceptional situations.

(i) Rescue Cases

Rescue cases form an exception to the application of the doctrine of volenti non fit injuria. When the plaintiff voluntarily encounters a risk to rescue somebody from an imminent danger created by the wrongful act of the defendant, he cannot be met with the Volenti non fit injuria.

Haynes v. Harwood is an important authority on the point. In that case, the defendants’ servant left a two-horse van unattended in a street. A boy threw a stone on the horses and they bolted, causing grave danger to women and children on the road. A police constable, who was on duty inside a nearby police station, on seeing the same, managed to stop the horses, but in doing so, he himself suffered serious personal injuries. It being a ‘rescue case’, the defence of volenti non fit injuria’ was not accepted and the defendants were held liable.

(ii) Unfair Contract Terms Act, 1977 (England)

Unfair Contract Terms Act, 1977 limits the right of a person to restrict or exclude his liability resulting from his negligence by a contract term or by notice.

Plaintiff the wrongdoer

Under the law of contract, one of the principles is that no court will aid a person who found his cause of action upon an immoral or an illegal act. The maxim is “Ex turpi causa non oritur actio” which means, from an immoral cause no action arises. It means that if the basis of the action of the plaintiff is an unlawful contract, he will not, in general, succeed to his action.

The defendant can take such a defence under the law of torts and escape liability by pleading that at the time of the defendant’s wrongful act, the plaintiff was also engaged in doing something b.

Act of God

The act resulting out of overwhelming operations of natural forces such as extraordinary earthquake, rainfall, volcanic eruptions, etc. are termed as Act of God.

Act of God includes those consequences which are occasioned by elementary force of nature unconnected with the agency of man. Common examples of Act of God are the falling of a tree, a flash of lightening, a tornado or a flood.

Whether a particular event amounts to an Act of God is question of fact. Today the scope of this defence is very limited because with the increase in knowledge the foresight also increases and it is expected that the possibility of the event could have been visualized.

Whether a particular circumstance or occurrence amounts to an Act of God is a question of fact in each case and the criterion for deciding it “is no human foresight and prudence could reasonably recognise the possibility of such an event.” There is a tendency on the part of courts to limit the application of the defence of act of God not because of the fact that its application in the cases of absolute liability is diminished but because advancement in the scientific knowledge which limits the unpredictable.

Essentials of Act of God
  1. The act should be result of a natural cause.
  2. It should be extraordinary in nature.
  3. It should not be within human contemplation.

In Nichols v. Marsland the defence was successfully pleaded. There the defendant created some artificial lakes on his lands by damming some natural streams. Once there was an extraordinary heavy rainfall, stated to be the heaviest in human memory, as a result of which, the embankments of the lakes gave way. The rush of water washed away four bridges belonging to the plaintiff and caused damage to plaintiff’s property. It was held that the defendants were not liable as the loss had occurred due to Act of God.

In Kallulal v. Hemchand, the wall of a building collapsed on a day when there was a of 2.66 rainfall inches. That resulted in the death of the respondent’s two children. The Madhya Pradesh High Court held that the defendant (appellant) could not take the defence of Act of God in this case, as that much of rainfall during the rainy season was not something extraordinary but only such as ought to have been anticipated and guarded against. The appellant was, therefore, held liable.

Private Defence

The law permits use of reasonable force to protect one’s person or property. If the defendant uses the force which is necessary for self-defence, he will not be liable for the harm caused thereby. The use of force is justified only for the purpose of defence.

There should be imminent threat to the personal safety or property, e.g., A would not be justified in using force against B, merely because he thinks that B would attack him some day, nor can the force be justified by way of retaliation after the attack is already over. Thus it is not justifiable to use a deadly weapon to repel a push or blow with the hand. “Honest and reasonable belief of immediate danger” is the test. Indian Penal Code extends the benefit of this defence even in case of causing death in certain circumstances.

It is also necessary that such force as is absolutely necessary to repel the invasion should be used. Thus, “if A strikes B, B cannot justify drawing his sword and cutting off his hand.” The force used should not be excessive. What force is necessary depends on the circumstances of each case.

For the protection of property also, the law permits taking of such measures as may be reasonably necessary for the purpose. Fixing of broken pieces of glass or spikes on a wall, or keeping a fierce dog,’ can be justified but not fixing of spring guns.

In Bird v. Holbrook, the defendant had put up spring guns in his garden without fixing any notice about the same and a trespasser was seriously injured by its automatic discharge. It was held that the plaintiff was entitled to recover compensation as the force used here was greater than the occasion demanded.


Mistake, whether of fact or of law, is generally no defence to an action for tort. When a person willfully interferes with the rights of another person, it is no defence to say that he had honestly believed that there was justification for the same, when, in fact no such justification existed.  Entering the land of another thinking that to be one’s own is trespass, taking another’s umbrella thinking that to be one’s own, or driving of plaintiffs sheep amongst one’s own herd, is trespass to goods, and injuring the reputation of another without any intention to defame is defamation.

Inevitable Accidents

Accident means an unexpected injury and if the same could not have been foreseen and avoided, in spite of reasonable care on the part of the defendant, it is inevitable accident. According to Pollock, “It does not mean absolutely inevitable, but it means not avoidable by any Such precautions as a reasonable man, doing such an act then and there, could be expected to take It is, therefore, a good defence if the defendant can show that he neither intended to injure the plaintiff nor could he avoid the injury by taking reasonable care.

In Stanley v. Powell, the plaintiff and the defendant, who were members of a shooting party, went for 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 and the defendant was not liable.

In Padmavati v. Dugganaika, while the driver was taking the jeep tor filling petrol in the tank, two strangers took lift in the jeep. Suddenly one of the bolts fixing the right front wheel to the axle gave way toppling the jeep. The two strangers were thrown out and sustained injuries, and one of them died as a consequence of the same. It was held that neither the driver nor his master could be made liable, firstly, because it was a case of sheer accident and, secondly, the strangers had voluntarily got into the jeep and as such, the principle of volenti non fit injuria was applicable to this case.


An act causing damage, if done under necessity to prevent a greater evil is not actionable even though harm was caused be intentionally. Necessity should distinguish from private defence. 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. Necessity is also different from inevitable accident because in necessity, the harm is an intended one, whereas in inevitable accident, the harm is caused in spite of the best effort to avoid it.

In Leigh v. Gladstone, forcible feeding out a hunger striking prisoner to save her was held to be a good defence to an action for battery.

In Cope v. Sharpe the defendant entered the plaintiff’s land to prevent spread of fire to the adjoining land over which the defendant’s master had the shooting rights. Since the defendant’s act was considered to be reasonably necessary to save the game from real and imminent danger, it was held that the defendant was not liable for trespass.

Statutory Authority

The damage resulting from an act, which the legislature authorizes or directs to be done, is not actionable even though it would otherwise be a tort. When an act is done, under the authority of an Act, it is complete defence and the injured party has no remedy except for claiming such compensation as may have been provided by the statute. Immunity under statutory authority is not only for that harm which is obvious, but also for that harm which is incidental to the exercise of such authority.

Therefore, if a railway line is constructed, there may be interference with private land when the trains are run, there may also be some incidental harm due to noise, vibration, smoke, emission of spark etc. No action can lie either for interference with the land or for incidental harm, except for payment of such compensation which the Act itself may provide.

In Hammer Smith Rail Co. v. Brand, the value of the plaintiff’s property had considerably depreciated due to the noise, vibration and smoke caused by the running of trains on a railway constructed under statutory powers. The damage being necessarily incidental to the running of the train authorized by the statute, it was held that no action lies for the same.

In Smith v. London and South Western Railway Co., the servants of a Railway Co. negligently left trimming of grass and hedges near a railway line. Sparks from an engine set the material on fire. By a heavy wind, the fire was carried to the plaintiff’s cottage, 200 yards away from the railway line. The cottage was burnt. Since it was a case of negligence on the part of the Railways Co., they were held liable.

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