GENERAL EXCEPTIONS

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 a case, avoid his
liability by taking the plea of some defence. There are some specific defences,
which are peculiar to some particular wrongs, for, example, in an action for
defamation; the defences of privilege, fair comment or justification are
available. There are some general defences which may be taken against action
for number of wrongs. For example, the general defence of ‘Consent’ may be
taken, whether the action is for trespass, defamation, false imprisonment, or
some other wrong. Specific defences have been discussed along with the
particular torts to which they relate. The general defences discussed here are as
follows :

1. Volenti non fit injuria, or the defence of ‘Consent’

2. Inevitable accident.
3. Act of God.
4. Private Defence.
5. Necessity.
6. Statutory Authority.
7. Judicial or Quasi-Judicial Acts.

1. Volenti Non Fit Injuria (To a willing person, no injury is done): This is
one of the most important defences. It means that a person who knowingly and
voluntarily consents to a risk of harm cannot later sue for damages if that harm
occurs. For this defence to apply, the plaintiff's consent must be free and
informed, not given under duress or as a result of fraud. For example, a
spectator at a cricket match who is hit by a ball has willingly accepted the
inherent risks of attending the game. However, this defence wouldn't apply if a
stadium's faulty railing collapses, as that's an unforeseen risk the spectator didn't
consent to.

The consent must be free

For the defence to be available, it is necessary to show that the plaintiff’s
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. Thus, if
you invite some person to your house, you cannot sue him for trespass when he
enters your premises. But, if the visitor goes to a place for which no consent is
given, he will be liable for trespass.

2. Inevitable Accident:
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 parly, 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.
3. Act of God (Vis Major): This defence is available when the harm is caused
by an extraordinary, unforeseeable natural event that couldn't have been
prevented by reasonable human foresight or care. Events like a sudden, severe
storm, earthquake, or tsunami can qualify. For instance, if a building's roof
collapses during a cyclone, and the owner had taken all reasonable precautions,
they may be able to use this defence. The key is that the event must be beyond
human control and not a mere act of nature that could have been anticipated
(e.g., a normal rainy season).

"An Act of God, in the legal sense may be defined as an extraordinary

occurrence of circumstance, which could not have been foreseen and which
could not have been guarded against, or, more accurately, as an accident due to
a natural cause, directly and exclusively, without human intervention, and
which could not have been avoided by any amount of foresight and pains and
care reasonably to be expected of the person sought to be made liable for it, or
who seeks to excuse himself on the ground of it. The occurrence need not be
unique, nor need it be one that happens for the first time; it is enough that it is
extraordinary, and such as could not reasonably be anticipated and it must not
arise from the act of man."

Two important essentials are needed for this defence:

1. There must be working of natural forces;

2. The occurrence must be extraordinary and not one which could be anticipated
and reasonably guarded against.

Working of natural forces

In Ramajinga Nadar v. Narayan Reddiar, it has been held that the Criminal
activities of the unruly mob, which robbed the goods transported in the
defendant’s lorry cannot be considered to be an Act of God and the defendant is
liable for the loss of those goods as a common carrier. It was observed:
"Accidents may happen by reason of the play of natural forces or by
intervention of human agency or by both. It may be that in either of these cases,
accidents may be inevitable. But it is only those acts which can be traced to
natural forces and which have nothing to do with the intervention of human
agency that could be said to be Acts of God."

In Nichols v. Marsland, the defence was successfully pleaded. There the

defendant created some artificial lakes on his land 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. It was held that the defendants were not liable as the loss had occurred
due to Act of God. Occurrence must be extraordinary In Nichols v. Marsland,
the rainfall was extraordinary heavy, and could not be anticipated If the rainfall
is a normal one which could be expected in a certain area, the defence of Act of
God cannot be pleaded.

4. Private Defence: An individual has the right to use reasonable force to

protect themselves, their property, or another person from an immediate threat.
The force used must be proportional to the threat. For example, if a person tries
to attack you, you are justified in using reasonable force to protect yourself.
However, you can't use a firearm to stop someone who is simply trespassing.
The defence is about preventing harm, not about revenge. 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. 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. "While the law recognises the right of self-defence, the right to
repel force with force, no right is to be abused and the right of self-defence is
one which may be easily abused. The force employed must not be out of
proportion to the apparent urgency of the occasion."

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.

5. Necessity: This defence arises when a person commits a tort to prevent a

greater harm. It is used in situations where a defendant damages another's
property to save a life or prevent a more severe injury. For example, a person
might trespass on a neighbour’s land to access a burning building and rescue
someone trapped inside. The damage caused by the trespass is justified because
it prevented a much greater harm. Another example, a Ship ran over a small
boat hurting 2 people in order to prevent collision with another ship which
would have hurt hundreds of people is excusable.

6. Statutory Authority:
An act that is approved by the legislature or is done upon the direction of the
legislature is excused from tortious liability even though in normal
circumstances, it would have been a tort. When an act is done under the
authority of an Act, it is a complete defence and the injured party has no remedy
except that is prescribed by the statute.
If a legislative body (like a parliament) authorizes an act that would otherwise
be a tort, no action can be brought against the person or entity performing that
act. The rationale is that public interest outweighs private harm. For example, a
railway company cannot be sued for the noise and vibrations caused by its trains
if its operation is authorized by an Act of Parliament. However, this immunity
only applies to the actions explicitly authorized; if the harm is caused by the
company's negligence, the defence is invalid.
In Vaughan vs Taff Valde Rail Co 1860, sparks from an engine caused fire in
appellant's woods that existed in his land adjoining the railway track. It was held
that since the company was authorized to run the railway and since the company
had taken proper care in running the railway, it was not liable for the damage.

7. Judicial or Quasi-Judicial Acts

No action lies for acts done, or words spoken, by a judge in exercise of his
judicial office, although they may be malicious. It is founded on the principle of
public benefit that Judges should be at liberty to exercise their function
independently and without fear of consequences. Judicial Officers ’ Protection
Act, 1850 grants protection to a judicial officer for any act done or ordered to be
done by him in the discharge of his judicial duty. He is protected even though
he exceeds his jurisdiction provided that at that time he honestly believed that
he had jurisdiction to do or order the act complained of.
Section 1 of the Act reads as follows: “No Judge, Magistrate, Justice of the
Peace, Collector or other person acting judicially shall be liable to be sued in
any civil court for any act done or ordered to be done by him in the discharge of
his judicial duty whether or not within the limits of his jurisdiction: Provided
that he at the time in good faith, believed himself to have jurisdiction to do or
order the act complained of; and no officer of any court or other person, bound
to execute the lawful warrants or orders of acting judicially shall be liable to be
sued in any civil court, for the execution of any warrant or order which he
would be bound to execute, if within the jurisdiction of the person issuing the
same. ”
Limits of such protection:-
1. No such protection is granted if a magistrate is acting mala fide and outside
his jurisdiction. Sailajanand Pandey v Suresh Chandra Gupta , AIR 1969 Pat.
194 The magistrate acting mala fide, illegally and outside his jurisdiction,
ordered the arrest of the plaintiff. The Patna High Court held that he was not
entitled to the protection given by the Judicial Officer ’ s Protection Act, 1850
and was, therefore, liable for the wrong of false imprisonment.
2. The protection of judicial privilege applies only to judicial proceedings as
contrasted with administrative or ministerial proceedings and where, a judge
acts both judicially and ministerial or administratively, the protection is not
afforded to the act done in the later capacity.
State of U.P. v. Tulsi Ram, AIR 1971 [Link] persons were prosecuted for
certain offences. One of them was acquitted by the Sessions Court and another
by the High Court. The High Court upheld the conviction of only three of the
five persons and authorised the issue of warrants against these three convicted
persons. The judicial magistrate acting negligently signed an order for the arrest
of all the five persons. As a result of this order, the plaintiffs, even though they
had been acquitted by the High Court, were arrested by the police. They filed a
suit claiming compensation of Rs. 2,000 from the judicial officer and the State
of U.P. stating that their arrest before their relations and friends on the day of
Holi festival had caused much humiliation, disgrace, physical discomfort and
mental suffering to them. The lower appellate court held that the judicial officer
was protected by the Judicial Officer ’ s Protection Act, 1850 but the State of
U.P. was vicariously liable and passed a decree of Rs. 500 against the state of
U.P. The Allahabad High Court, on an appeal made by the State of U.P. held
that the State was not liable because the act done by its servant was in the
discharge of his duties imposed by law. Further, it held that the judicial officer
was liable for the wrongful arrest of the plaintiff-respondents as the judicial
officer was not exercising any judicial function but only an executive function
while issuing warrants and therefore, the protection under the Judicial Officers ’
Protection Act, 1850 could not be available in this case.