Introduction

The word tort originates from the French language. It is equivalent to the English word “wrong” and Romanian law’s
term “delict”. It is derived from the Medieval Latin word “tortum” which means “wrong” or “injury” which itself was
further developed from the Old Latin word “torquere” which means “to twist”. It is a breach of duty which amounts
to a civil wrong. A tort arises when a person’s duty towards others is affected, an individual who commits a tort is
called a tortfeasor, or a wrongdoer. And where there are multiple individuals involved, then they are called joint
tortfeasors. Their wrongdoing is called as a tortious act and they can be sued jointly or individually. The main aim
of the Law of Torts is the compensation of victims.
Section 2(m) of the Limitation Act,1963, Addresses tort as being a civil wrong which is not just exclusively a breach
of contract or a breach of trust.
Definitions by various thinkers
According to John Salmond, He addresses tort as being only a civil wrong which has unliquidated damages (those
damages for which there is no fixed amount) in the form of remedy and which is not just exclusively the breach of
contract or the breach of trust or breach of merely fair and impartial obligation.
According to Richard Dien Winfield, Tortious liability emerges from the breach of a duty primarily fixed by the law,
this duty is towards the other people generally and its breach is redressible by an action for unliquidated damages.
According to Fraser, A tort is an infringement of a right in rent of a private individual giving a right of compensation
at the suit of the injured party.
Objectives of a tort
1. To determine rights between the parties to a dispute.
2. To prevent the continuation or repetition of harm i.e. by giving orders of injunction.
3. To protect certain rights of every individual recognized by law i.e. a person’s reputation.
4. To restore one’s property to its rightful owner i.e. where the property is wrongfully taken away from its
rightful owner.
Essential Elements of a tort
Three essential elements which constitute a tort are,
1. A Wrongful act or omission, and
2. Duty imposed by the law.
3. The act must give rise to legal or actual damage, and
It should be of such a nature that it should give rise to a legal remedy in the form of an action for damages.
What is a Wrongful Act?
A wrongful act can be either morally wrong or legally wrong and can also be both at the same time.
A legal wrongful act is one which affects one’s legal right, the wrongful act must be one recognized by law, the act
must be in violation of the law to be a legal wrongful act. An act which seems Prima facie (based on the first
impression) innocent may also end up infringing somebody else’s legal right, innuendo (Where a statement is said by
an individual which may be Prima facie innocent but may also have a secondary meaning which can harm the
reputation of another in the eyes of the public or the person who comes to know of such information) is an example
of this. Liability for a tort arises when the wrongful act being complained of amounts to an infringement of a legal
private right or a breach or violation of a legal duty. i.e. If a person is prevented from voting by another, even if the
candidate he was going to vote for, wins, his legal right to vote has been violated.
For example, if someone whose religion does not allow him/her to eat non-vegetarian food, still eats it then he/she
will be morally wrong but not legally wrong. And if a person whose religion doesn’t allow him or her to eat non-
vegetarian and he or she strictly follows that religion is forcefully fed by someone then it is a legal wrong on the part
of the person forcing the other one to eat that food which he or she does not want to eat.
What is a duty imposed by law?
A duty of care is one which is imposed on every individual and requires a standard of reasonable care that he could
see as being harmful towards others. Hence, a duty imposed by law is a duty which is legally enforceable in the
Indian courts.
What is a Legal damage?
Literal meaning of damage- to affect injuriously.
The term “damages” is often confused with the term “damage”, while they may look similar, they have different
meanings and are significantly distinct from each other, “damages” refers to the compensation sought for, while
“damage” refers to actual loss or injury.
Within the scope of the subject matter
The second important ingredient in constituting a tort is legal damage. In order to prove an action for tort in the court,
the plaintiff has to prove that there was a wrongful act or an act or omission which resulted in the breach of a legal
duty or the violation of a legal right. So, there must be a violation of a legal right of a person and if there is no
violation of a legal right then there can be no action under the law of torts. If there has been a violation of a legal
right, the same is actionable whether the plaintiff has suffered any loss or not. This is expressed by the
maxim, “Injuria sine damno” where ‘Injuria’ refers to “infringement of the legal right of a person” and the term
‘damnum’ means “substantial harm, loss or damage to that individual”. The term ‘sine’ means “without”. However,
if there is no violation of a legal right, no action can lie in a court despite of the loss, harm or damage to the plaintiff
caused by the defendant.
Illustration :- A runs a successful school, after 5 months another school opens up nearby due to which he suffered
heavy losses in the business, here he has suffered no legal damage but has only suffered damage in terms of business
value so he cannot sue the competitor school for any kind of damages (similar to the case of Gloucester Grammar
School Case(1410) Y B 11 Hen IV 27).
The factual significance of legal damage is illustrated by two maxims namely:
• Injuria sine damno, and
• Damnum sine injuria.
Injuria sine damno means injury without damage. Such damage is actionable under the law of torts. It occurs when
a person suffers a legal damage instead of actual loss, i.e. his legal right is infringed by some other individual. In
other words, this is an infringement of an absolute private right of a person without having suffered any actual loss.
An example of this can be the landmark case of, Ashby v. White(1703) 92 ER 126, where Mr. Ashby, the plaintiff,
was prevented from voting by the constable Mr. White. This rule is basically based on the old maxim “Ubi jus ibi
remedium” which translates to “where there is a right, there will be a remedy.”
Another example in the Indian context would be the case of,
Bhim Singh v. State of J and K, where the plaintiff was a Member of the parliament and was not allowed to enter into
the premises of the Assembly election by a police constable, hence his legal right was infringed.
Damnum sine injuria whereas translates to damage without injury, here the party affected suffers damage which
may also be physical but suffers no infringement of their legal rights. In other words, it means the occurrence of an
actual and substantial loss to a party without any infringement of a legal right. Here no action lies in the hands of the
plaintiff as there is no violation of a legal right.
Distinction between Injuria sine damno and Damnum sine injuria
(1) On one hand, i.e. in the case of Injuria sine damno there is no physical damage or an actual loss on the part of the
plaintiff while on the other hand in case of damnum sine injuria there is actual damage and loss on the part of the
plaintiff.
(2) Secondly, in the case of Injuria sine damno, the party suffers with the infringement of their legal rights, while in
the case of Damnum sine injuria, there is no legal right infringement.
(3) Thirdly, Injuria sine damno is actionable in the court while Damnum sine injuria is not actionable in court.
(4) Fourthly, the Injuria sine damno deal with the legal wrongs while Damnum sine injuria deal with the moral
wrongs.
Tort and other wrongs
Tort and Crime – Distinguished
(1) A tort is basically a private wrong, i.e. it is the infringement of a person’s right in rem, in other words, it is an
infringement of a personal right. While a crime is a public wrong, i.e. is against the whole world and the state, it is an
infringement of rights in personam, in other words, it is an infringement of the public right.
(2) The remedy in the case of law of torts is in the form of damages, while in the case of a crime, it is in terms of
punishment.
(3) In the case of a tort, a suit is filed. Whereas, in the case of a crime, a complaint is filed.
(4) Law of torts is an uncodified law whereas law of crimes is a codified law.
(5) In tort, intention is important but not in all cases, whereas in the case of criminal law intention is the crux of the
offence itself.
Example: A good example of this can be Assault, where the party who has been assaulted can bring charges against
the person who has assaulted him or her. Also he or she can claim for damage in the civil courts under Tort law.
Torts and Breach of Contract – Distinguished
(1) In the case of a tort the duty is fixed by the law, whereas in the case of contract the duty is fixed by the parties
involved.
(2) In case of a tort, the duty is towards everyone in the society, whereas in the case of a contract, the duty is towards
specific individuals only.
(3) Motive is often taken into account in the case of a tort, while, in the case of a contract, motive is irrelevant.
(4) Damages in the case of a tort are different under different circumstances, whereas, in the case of a contract, the
damages are in the form of compensation for the loss suffered in peculiar form.
(5) In the case of a tort, intention is taken into consideration in some cases, whereas, in the case of a breach of
contract, intention is irrelevant.
Example : A father who employs a surgeon for the treatment of his minor son, and if his son is injured by the
surgeon’s carelessness. Here the father can sue the surgeon for the breach of contract also, as there is no contract
between the minor son and the surgeon, the minor son can sue the surgeon(for the careless act which amounts to
negligence) in tort and can also put charges on the surgeon but he cannot sue for the breach of contract.
Torts and Breach of trust – Distinguished
(1) In the case of a tort, the compensation is in the form of unliquidated damages, whereas, in the case of breach of
trust, the compensation is in the form of liquidated damages.
(2) Law of torts has originated as a part of common law whereas, breach of trust could be redressed in the Court of
Chancery.
(3) Law of trust is regarded as a division of the law of property, whereas, law of tort is not regarded as a division of
the law of property.
Liquidated damages vs Unliquidated damages
Both of these damages solidifies the plaintiffs right to be compensated. Liquidated damages, on one hand, have their
amount of compensation fixed while on the other hand, unliquidated damages have no prior fixed amount, they
change with the intensity of the offence committed by the defendant.
The extent of the amount to be compensated in the case of liquidated damages is predetermined whereas in the case
of unliquidated damages in order to get the maximum compensation the plaintiff has to prove the extent of the
damage he has suffered from.
Tortious liability and mental element
A tortious liability arises when an individual or a person causes any injury to another person’s property, reputation,
his life, etc. It is civil in nature and the intention due to which such an injury was caused may or may not be
necessary, i.e., it doesn’t matter if it was caused intentionally or by accident in most of the cases in the law of torts.
The important thing is to figure out the mental element in order to determine the tortious liability of an individual,
and on the basis of intention, tort can be either Intentional tort or unintentional tort.
• Intentional Tort
Intentional tort is one in which the tort is committed with full knowledge of the outcome of the act along with the
mental intention to cause such a tort. Having mala fide intention is necessary to commit an Intentional Tort.
Intentional torts are –
• Battery.
• Assault.
• False imprisonment.
 • Trespass to land, etc.
• Unintentional Tort
Unintentional torts are caused usually by accident or by mistake by the defendant to the plaintiff without any mala
fide (Evil or Wrongful) intention towards doing such an act. These are usually committed on the breach of duty of
care which a reasonable human being would’ve considered under normal circumstances. Negligence (failure to take
proper care over something) is a great example of this kind of tort.
The most common example of Negligence as a civil wrong can be the negligence tort cases of slip and fall which
can occur when the owner of a premises fails to take reasonable care to the floor of his property thus leaving water on
the floor carelessly which in turn results in harming the individuals whoever enters his premises. Here, the owner of
the premises did not intent to harm the visitors at all but due to his carelessness, such an outcome came to be.
Relevance of Intention and Motive
Generally, the motive is the state of mind with intent or a purpose in the mind of an individual while being in the
commission of an act. While on one hand, the motive is the ultimate object for which an act is done, the intention
refers to the immediate purpose of the act. Now the question arises whether these mental elements play a significant
role in the determination of tortious liability or not? In criminal law the concept of mental element plays a significant
role in determining the role of a person’s liability but in case of law of tort, mental element does not usually play a
significant role, as there are some torts that can be committed without having the intention to do them and the person
who still ends up committing these offences still end up being responsible for them, such as in the case of negligence,
while on the other hand mental element is necessary in order to prove a person’s liability in the case of Battery,
Assault, etc.
Situation of law of Torts in India
• In India, the concept of law of Torts has been there since even before it gained its independence from the
Britishers. The Sanskrit word “Jimha” was used in Hindu law in the sense of “tortuous of fraudulent
conduct”, the word literally meant “crooked”. Hindu and Muslim laws had compensation assured for
certain tortious acts. But even today, in the Modern India, the law of torts is mainly the English law which
owes its origin to the principles of the common law of England.
• Although in the Indian courts, before any English law is applied, it is first overlooked whether if it will be
applicable in Indian society’s point of view or not. Hence the law of torts is still uncodified( those that
originated from sources such as court decisions or customs) in India and is still based on the common law
of England.
• The law of torts is underdeveloped in India as most of the people are not at all aware of these due to high
amount of unawareness about its existence in our nation, another thing is the fact that not everyone can
afford a lawyer and the process of court-work which takes a lot of time as well as a lot of money.
• Still the law of torts play a significant role in the Indian courts as there are many frequent cases of
Defamation, Negligence, etc.
Conclusion
It can very well be established from above that, a tort is a civil wrong which is caused when one individual infringes
another’s legal rights. And the concept of mental element may or may not be relevant in certain tort as in order to
determine it, we would first have to know the nature of the tort committed by the individual. It can be done
intentionally like in the case of Battery, as well as accidentally without the intention of committing such an act by
performing certain acts carelessly or by accident like in the case of negligence. The situation of Law of tort is not so
well as many people are still not aware of the rights that they possess which is due to the fact that there is a lack of
awareness among the people, the fact that the law of torts is still uncodified and is a direct derivative of the common
law of England makes it less likely to be adaptable in certain cases to the Indian context, although now it has been
adapted into the Indian context.
General defences under law of torts
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. 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.
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.
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[1], 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.
In Padmavati v. Dugganaika[2], 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.
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 applicable here.
In Wooldrige v. Sumner[3], 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.
In the case of Thomas v. Quartermaine[4], 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.
In Illot v. Wilkes[5], 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.
Consent must be free
• For this defence to be available it is important to show that the consent of the plaintiff was freely given.
• If the consent was obtained under any compulsion or by fraud, then it is not a good defence.
• The consent must be given for an act done by the defendant.
• For example, if you invite someone to your house for dinner and he enters your bedroom without
permission then he will be liable for trespass.
In the case of Lakshmi Rajan v. Malar Hospital[6], 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.
• If a person is not in a condition to give consent then his/her guardian’s consent is sufficient.
Consent obtained by fraud
• Consent obtained by fraud is not real consent and does not serve as a good defence.
In Hegarty v. Shine[7], it was held that mere concealment of facts is not considered to be a fraud so as to vitiate
consent. Here, the plaintiff’s paramour had infected her with some venereal disease and she brought an action for
assault against him. The action failed on the grounds that mere disclosure of facts does not amount to fraud based on
the principle ex turpi causa non oritur actio i.e. no action arises from an immoral cause.
• In some of the criminal cases, mere submission does not imply consent if the same has been taken by fraud
which induced mistake in the victim’s mind so as to the real nature of the act.
• If the mistake induced by fraud does not make any false impression regarding the real nature of the act
then it cannot be considered as an element vitiating consent.
In R. v. Wiliams[8], a music teacher was held guilty of raping a 16 years old girl under the pretence that the same was
done to improve her throat and enhancing her voice. Here, the girl misunderstood the very nature of the act done with
her and she consented to the act considering it a surgical operation to improve her voice.
In R. v. Clarence[9], the husband was not liable for an offence when intercourse with her wife infected her with a
venereal disease. The husband, in this case, failed to inform her wife about the same. Here, the wife was fully aware
of the nature of that particular act and it is just the consequences she was unaware of.
Consent obtained under compulsion
• There is no consent when someone consents to an act without free will or under some compulsion.
• It is also applicable in the cases where the person giving consent does not have full freedom to decide.
• This situation generally arises in a master-servant relationship where the servant is compelled to do
everything that his master asks him to do.
• Thus, there is no applicability of this maxim volenti non fit injuria, when a servant is compelled to do
some work without his own will.
• But, if he himself does something without any compulsion then he can be met with this defence of consent.
Mere knowledge does not imply assent
For the applicability of this maxim, the following essentials need to be present:
• The plaintiff knew about the presence of risk.
• He had knowledge about the same and knowingly agreed to suffer harm.
In the case of Bowater v. Rowley Regis Corporation[10], a cart-driver was asked to drive a horse which to the
knowledge of both was liable to bolt. The driver was not ready to take that horse out but he did it just because his
master asked to do so. The horse, then bolted and the plaintiff suffered injuries. Here, the plaintiff was entitled to
recover.
In Smith v. Baker[11], the plaintiff was an employer to work on a drill for the purpose of cutting rocks. Some stones
were being conveyed from one side to another using crane surpassing his head. He was busy at work and suddenly a
stone fell on his head causing injuries. The defendants were negligent as they did not inform him. The court held that
mere knowledge of risk does not mean that he has consented to risk, so, the defendants were liable for this. The
maxim volenti non fit injuria did not apply.
But, if a workman ignores the instructions of his employer thereby suffering injury, in such cases this maxim applies.
In Dann v. Hamilton[12], a lady even after knowing that the driver was drunk chose to travel in the car instead of any
other vehicle. Due to the negligent driving of the driver, an accident happened which resulted in the death of the
driver and injuries to the passenger herself. The lady passenger brought an action for the injuries against the
representatives of the driver who pleaded the defence of volenti non fit injuria but the claim was rejected and the lady
passenger was entitled to get compensation. This maxim was not considered in this case because the driver’s
intoxication level was not that high to make it obvious that taking a lift could be considered as consenting to an
obvious danger.
This decision was criticized on various grounds as the court did not consider contributory negligence while deciding
the case but the court’s reason for not doing so is that it was not pleaded that is why it was not considered.
A driver’s past negligent activities do not deprive him of this remedy if someone travels with the same driver again.
Negligence of the defendant
In order to avail this defence it is necessary that the defendant should not be negligent. If the plaintiff consents to
some risk then it is presumed that the defendant will not be liable.
For example, when someone consents to a surgical operation and the same becomes unsuccessful then the plaintiff
has no right to file a suit but if the same becomes unsuccessful due to the surgeon’s negligence then in such cases he
will be entitled to claim compensation.
In Slater v. Clay Cross Co. Ltd.[13], the plaintiff suffered injuries due to the negligent behaviour of the defendant’s
servant while she was walking along a tunnel which was owned by the defendants. The company knew that the tunnel
is used by the public and had instructed its drivers to give horns and drive slowly whenever they enter a tunnel. But
the driver failed to do so. It was held that the defendants are liable for the accident.
Limitations on the doctrine’s scope
The scope of the maxim volenti non fit injuria has been curtailed in the following cases:
• Rescue cases
• The Unfair Contract Terms Act, 1977
In these cases, even if the plaintiff has done something voluntarily but he cannot be met with the defence of ‘consent’
i.e. volenti non fit injuria.
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[14], 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.
In the case of Wagner v. International Railway[15], 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.
In Baker v. T.E. Hopkins & Son[16], 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.
• 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.[17], 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.
Unfair Contract Terms Act, 1977 (England)
The Unfair Contract Terms Act, 1977, limits the right of a person to exclude his liability resulting from his negligence
in a contract.
Negligence Liability
• Sub-section 1 puts an absolute ban on a person’s right to exclude his liability for death or personal injury
resulting from the negligence by making a contract or giving a notice.
• Sub-section 2 is for the cases in which the damage caused to the plaintiff is other than personal injury or
death. In such cases, the liability can only be avoided if a contract term or notice satisfies the reasonability
criteria.
• Sub-section 3 says that a mere notice or agreement may be enough for proving that the defendant was not
liable but in addition to that some proofs regarding the genuineness of the voluntary assumption and
plaintiff’s consent should also be given.
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.
• 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.
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[18], 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.
In Pitts v. Hunt[19], 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.
In Stanley v. Powell[20], 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.
In Assam State Coop., etc. Federation Ltd. v. Smt. Anubha Sinha[21], 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.
In Shridhar Tiwari v. U.P. State Road Transport Corporation[22], a bus of U.P.S.R.T.C. reached near a village where
a cyclist suddenly came in front of the bus and it had rained heavily so even after applying breaks the driver could not
stop the bus as a result of this the rear portion of the bus hit another bus which was coming from the opposite side. It
was known that there was no negligence on the part of both the drivers and they tried their best in avoiding the
accident. This was held to be a case of inevitable accident. The defendant i.e. U.P.S.R.T.C. was held not liable for
this act.
In the case of Holmes v. Mather[23], the defendant’s horse was being driven by his servant. Due to the barking of
dogs, the horse became unmanageable and started to bolt. In spite of every effort of the driver, the horse knocked
down the plaintiff. This makes it a case of an inevitable accident and the defendants were held not liable for the
incident.
In Brown v. Kendall[24], the dogs of the plaintiff and the defendant were fighting with each other. The defendant
tried to separate them and while doing so, he accidentally hit the plaintiff in the eye causing him some serious
injuries. The incident was purely an inevitable accident for which no claim could lie. So, the court held that the
defendant is not liable for the injuries suffered by the plaintiff as it was purely an accident.
In Padmavati v. Dugganaika[25], 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.
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 applicable here.
• It was a case of a sheer accident which no one could foresee.
In Nitro-Glycerine case[26], A firm of carriers i.e. the defendants, in this case, was given a wooden case which was
to carry from one place to another. The contents of the box were unknown. There was some leakage in the box and
the defendants took the box to their office so that they can examine it. After taking out the box, they saw that it was
filled with Nitro-Glycerine and then it suddenly exploded and the office building which belonged to the plaintiffs got
damaged. The defendants were held not liable for the same as the same could not be foreseen.
In the case of Oriental Fire & General Ins. Co. Ltd. v. Raj Rani[27], the front right spring and other parts of a truck
broke all of a sudden and the driver could not control it and dashed into a tractor that was coming from the opposite
direction. The driver and the owner of that truck could not prove that they had taken all reasonable precautions while
driving the truck. The court held that this case comes under negligence and has nothing to do with the inevitable
accident and the defendant was 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[28].
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.
Working of natural forces
In Ramalinga Nadar v. Narayan Reddiar[29], the unruly mob robbed all the goods transported in the defendant’s
lorry. It cannot be considered to be an Act of God and the defendant, as a common carrier, will be compensated for
all the loss suffered by him.
In Nichols v. Marsland[30], 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.
Occurrence must be extraordinary
Some extraordinary occurrence of natural forces is required to plead the defence under the law of torts.
In Kallu Lal v. Hemchand[31], the wall of a building collapsed due to normal rainfall of about 2.66 inches. The
incident resulted in the death of the respondent’s children. The court held that the defence of Act of God cannot be
pleaded by the appellants in this case as that much rainfall was normal and something extraordinary is required to
plead this defence. The appellant was held liable.
Private 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.
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.
In Bird v. Holbrook[32], 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 Ramanuja Mudali v. M. Gangan[33], 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.
In Collins v. Renison[34], 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.
In Morrison v. Ritchie & Co[35], 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 Consolidated Company v. Curtis[36], 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.
For example, performing an operation of an unconscious patient just to save his life is justified.
In Leigh v. Gladstone[37], 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 Cope v. Sharpe[38], 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.
In the case of Carter v. Thomas[39], 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.
In Kirk v. Gregory[40], 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.
In Vaughan v. Taff Valde Rail Co.[41], 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.
In Hammer Smith Rail Co. v. Brand[42], 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.
In Smith v. London and South Western Railway Co.[43], the servants of a railway company negligently left the
trimmings of hedges near the railway line. The sparks from the engine set fire to those hedges and due to high winds,
it got spread to the plaintiff’s cottage which was not very far from the line. The court held that the railway authority
was negligent in leaving the grass hedges near the railway line and the plaintiff was entitled to claim compensation
for the loss suffered.
Absolute and conditional authority
The authority given by a statute can be of two types:
• Absolute
 • Conditional
In the case of Absolute authority, there is no liability if the nuisance or some other harm necessarily results but when
the authority is conditional it means that the same is possible without nuisance or any other harm.
In the case of Metropolitan Asylum District v. Hil[44], 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.
Conclusion
This article 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. 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.