MODULE 1- torts

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 a tortious act and 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 trust.
Definitions by various thinkers.
John Salmond addresses tort as being only a civil wrong that 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
 To determine rights between the parties to a dispute.
 To prevent the continuation or repetition of harm i.e. by giving orders of injunction.
 To protect certain rights of every individual recognized by law i.e. a person’s
reputation.
 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 constitute a tort: 1. a wrongful act or omission, 2. a duty imposed by
the law, and 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 duty imposed by law? Every individual is imposed with a duty of care that
requires a standard of reasonable care that he could see as harmful to others. Hence, a duty
imposed by law is legally enforceable in Indian courts.
What is a Legal damage? The literal meaning of damage is 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, while “damage” refers to actual loss or injury.
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 legally wrongful act affects one’s legal right, the wrongful act must be recognized by
law, and the act must violate the law to be a legal wrongful act. An act that 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 someone forcefully feeds religion 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.
Scope of the subject matter -Legal damage is the second important ingredient in
constituting a tort. 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 that 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 the loss, harm, or damage to the
plaintiff caused by the defendant. Illustration:- A runs a successful school, and after 5 months
another school opens up nearby due to which he suffers 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: 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 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 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 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.
The distinction between Injuria sine damno and Damnum sine injuria
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 the 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 from 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 deals with the legal wrongs while the Damnum sine injuria deals with the
moral wrongs.
Tort and other wrongs
Tort and Crime Distinguished
A tort is 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 the 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) The law of torts is
uncodified whereas the 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
In the case of a tort, the duty is fixed by the law, whereas in the case of a contract, the duty is
fixed by the parties involved. (2) In the 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 a 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 a breach of trust, the compensation is in the form of liquidated damages. (2) The
law of torts has originated as a part of common law whereas, a breach of trust could be
redressed in the Court of Chancery. (3) The law of trust is regarded as a division of the law of
property, whereas, the law of tort is not regarded as a division of the law of property.
Liquidated damages vs Unliquidated damages
Both of these damages solidify the plaintiff's right to be compensated. Liquidated damages,
on the 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
offense 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 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, life, etc. It is civil 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 to determine the tortious liability of an individual, and based on intention, a
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 of 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 of 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 intend 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 the mental element
plays a significant role in determining the role of a person’s liability but in the case of the law
of tort, the mental element does not usually play a significant role, as some torts can be
committed without having the intention to do them and the person who still ends up
committing these offenses end up being responsible for them, such as in the case of
negligence, while on the other hand mental element is necessary 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 the 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 meant “crooked”. Hindu and Muslim
laws had compensation assured for certain tortious acts. But even today, in Modern India, the
law of torts is mainly the English law which owes its origin to the principles of the common
law of England. However in the Indian courts, before any English law is applied, it is first
overlooked whether 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 a 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 plays a significant role in the Indian courts as there
are 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 the mental element may or
may not be relevant in certain torts as 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 the Law
of tort is not so well as many people are still not aware of the rights that they possess which is
because 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.

Extinguishment of Liability in Tort

Extinguishment of liability in tort refers to the circumstances under which a person who has
committed a tort is no longer liable for their actions. This can occur due to various factors,
including:
1. Accord and Satisfaction:
 This occurs when the injured party agrees to accept something in satisfaction of the
claim, such as a sum of money or other compensation.
 Once the agreed-upon compensation is provided and accepted, the liability is
extinguished.
2. Release:
 A release is a formal legal document where the injured party voluntarily gives up their
right to sue the tortfeasor.
 It can be a partial or full release, depending on the terms agreed upon by the parties.
3. Judgment:
 Once a court judgment is passed in a tort case, it becomes final and binding on both
parties.
 If the judgment is fully satisfied, the liability is extinguished.
4. Limitation Period:
 Every legal system has a specific time limit within which a lawsuit must be filed.
 If the injured party fails to file a lawsuit within this limitation period, the right to sue
is lost, and the liability is extinguished.
5. Death of Parties: In some cases, the death of either the injured party or the tortfeasor can
extinguish the liability.
However, this may vary depending on the specific laws of the jurisdiction and the nature of
the tort.
6. Illegality: If the injured party was involved in illegal activity at the time of the tort, they
may be barred from recovering damages.
This is based on the principle that the law will not assist those who are involved in
wrongdoing.
7. Other Defenses: Several other defenses may extinguish or reduce the liability of a
tortfeasor, such as:
 Consent: If the injured party consented to the act that caused the harm, the tortfeasor
may not be liable.
 Self-defense: If the tortfeasor acted in self-defense, they may not be liable.
 Necessity: In certain circumstances, a person may be justified in causing harm to
prevent greater harm.
General Defenses
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 defenses are particularly related to some offenses. In
the case of defamation, the defenses available are fair comment, privileges, justification, etc.
Let’s see what are these defenses available to a person under the law of tort and how can 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 defenses available to him using which he can absolve himself
from the liability arising out of the wrong committed. These are known as ‘General defenses’
in the law of tort. The defenses 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 defense is that
no one can enforce a right that he has voluntarily abandoned or waived. Consent to suffer
harm can be expressed or implied.
Some examples of the defense are: When you 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 belonged to the defendant. During the race, two
cars collided 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 that 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 with petrol. Two
strangers took a lift in the jeep. The jeep got toppled due to some problem with the right
wheel. The two strangers who took the lift were thrown out of the jeep and they suffered
some injuries leading to the death of one person. The conclusions that 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
not applicable here.
In Wooldridge 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 to remove 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 defense.
The 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 defense. 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
did not affect her uterus. After the operation, she saw that her uterus had 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 defense. In Hegarty v. Shine[7], it was held that mere concealment of facts is
not considered to be a fraud 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 because 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 criminal cases, mere submission does not imply consent if the same has been
taken by fraud which induced a mistake in the victim’s mind 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
pretense that the same was done to improve her throat and enhance 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 offense 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 does something without any compulsion then he can be
met with this defense 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 knew 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 to cut rocks. Some stones were being
conveyed from one side to another using a 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 an
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 defense 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
To avail this defence the defendant mustn't 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 behavior of the defendant’s servant while
she was walking along a tunnel that was owned by the defendant. The company knew that the
tunnel was used by the public and had instructed its drivers to give horns and drive slowly
whenever they entered a tunnel. But the driver failed to do so. It was held that the defendants
were liable for the accident.
Limitations on the doctrine’s scope
The scope of the maxim volenti nonfit 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 defense of ‘consent’ i.e. volenti
nonfit injuria. Rescue cases When the plaintiff voluntarily comes to rescue someone from a
danger created by the defendant then in such cases the defense of volenti non fit injuria will
not be available to the defendant.
In Haynes v. Harwood[14], the defendants’ servant left two unattended horses on 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 was a rescue case so the defense 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 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 defense of consent. The court held that in this case the defense
could not 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 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 that 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, of 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 to prove that the defendant was not liable but in addition
to that some proof regarding the genuineness of the voluntary assumption and the plaintiff’s
consent should also be given.
Volenti non fit injuria and Contributory negligence
Volenti non fit injuria is a complete defense but the defense of contributory negligence came
after the passing of the Law Reform (Contributory Negligence) Act, of 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 nonfit injuria, the plaintiff knows the
nature and extent of danger that 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 action” 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 to claim
compensation from the relatives of the deceased person. This plea was rejected as he 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 despite taking all due care and precautions on the part of the defendant, then we
call it an inevitable accident. It serves as a good defense 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 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 the drivers and they tried their best to avoid 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. Despite
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 was 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 with petrol. Two
strangers took a lift in the jeep. The jeep got toppled due to some problem with the right
wheel. The two strangers who took the lift were thrown out of the jeep and they suffered
some injuries leading to the death of one person. The conclusions that 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
not applicable here. It was a case of a sheer accident that no one could foresee.
In the 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 could examine it. After taking out the box, they saw that it was filled with Nitro-
Glycerine and then it 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 defense under the law of torts. It is also recognized as a valid
defense in the rule of ‘Strict Liability’ in the case of Rylands v. Fletcher[28]. The defense of
an Act of God and an Inevitable accident might look the same but they are different. An act of
God is a kind of inevitable accident in which the natural forces play their role and cause
damage. For example, heavy rainfall, storms, tides, etc. Essentials required for this defense
are: Natural forces’ working should be there. There must be an extraordinary occurrence and
not 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, the heaviest
in human memory. The embankments of the lake were 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.
The occurrence must be extraordinary: Some extraordinary occurrence of natural forces is
required to plead the defense 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 defense 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 defense. The appellant was held liable.
Mistake
The mistake is of two types:
 Mistake of law
 Mistake of fact
In both conditions, no defense is available to the defendant. When a defendant acts under a
mistaken belief in some situations then he may use the defense 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 offense of
defamation and the element of good faith is immaterial in such cases.
In Consolidated Company v. Curtis[36], an auctioneer auctioned some goods to 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 the auctioneer liable and
mentioned that the mistake of fact is not a defense that can be pleaded here.
Private defense: The law has permitted one 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 self-defense. 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 someday 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 drew his sword and chopped
his head, then this act of A would not be justified and the defense of private defense
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 broken glass pieces on
a wall, keeping a fierce dog, etc. is all justified in the eyes of the 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 to reach his 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 to nail 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 defense.
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 defense. It should be distinguished
between private defense and an inevitable accident.
The following points should be considered: In necessity, the infliction of harm is upon an
innocent whereas in the case of private defense, the plaintiff is himself a wrongdoer. In
necessity, the harm is done intentionally whereas in case of an inevitable accident, the harm is
caused despite making all the efforts to avoid it. For example, operating on 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 defense 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 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 offense
of trespass. In Kirk v. Gregory[40], A’s sister-in-law hid some jewelry after the death of A
from the room where he was lying dead, thinking that it be a safer place. The jewelry was
stolen from there and a case was filed against A’s sister-in-law for trespass to the jewelry. 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 defense 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 Vale Rail Co.[41], sparks from an engine of the respondent’s railway
company were authorized to run the railway, and 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 by 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.
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. However, 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 defenses are a set of ‘excuses’ that you can undertake to escape
liability. 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 defenses which can be pleaded in
cases depending upon the circumstances and facts. To plead a defense it is important to
understand it first and then apply a suitable defense accordingly.
Discharge of Tort
There are seven different modes through which tort is discharged and no remedy will lie for
tort. It is a process through which the tort comes to an end. A wrongdoer is not liable for his
actions.
Following are the methods of discharge of torts.
Death of the parties Here the maxim ‘actio personalis moritur cum persona’ applies which
means if the person dies his right of action dies with him. Actio personalis moritur cum
persona This is the important maxim, it means if the person who commits a tort or the person
against whom the tort is committed dies, the personal right or the right to receive the damages
or the right of action dies with the person.
There are two situations where this maxim applies Death of the person against whom tort was
committed i.e., Petitioner. When the person against whom the tort was committed i.e. the
plaintiff who approached the court and filed a case died, so his right of action dies with him
only.
Illustration: If A files a case against the act of tort done by B. If A dies during trial and the
case is still pending before the court. Due to the death of A, the tort gets discharged, as the
right of action of A dies with him only.
Exceptions to the maxim of ‘Actio personalis monitor cum persona’ concerning
Petitioner
In India some laws constitute the exception to the above maxim like; The Legal
Representative Suits Act, of 1885
As per this Act, the legal representative or the executors of any person, after his death can
represent the deceased person in the court of law. Illustration If A died during the procedure
of trial of court. His legal heir or representative can represent him in a court of law. Similarly,
in different laws/acts like the Fatal Accident Act, the Indian Succession Act, the Workmen
Compensation Act, etc. the representative of the plaintiff can represent him in a court of law.
Death of the person who commits tort i.e. Defendant It means the person who commits the
act of tort against any other person i.e. the defendant dies, and the tort gets discharged.
Illustration If Ram commits the act of tort against Geeta, if Geeta files a complaint against
Ram, but if during trial Ram dies, then his right of action also dies with him i.e. the discharge
of tort. In Prusti v. Mohanty In this case, the defendant received some amount by
misrepresentation of fact, but the defendant died. The High Court of Orissa held that where a
money decree was passed against a person in respect of the amount received by him from the
decree-holder by misrepresentation of the facts, the liability would be personal and could not
be extended to his son under the law, as whatever the relief a decree-holder has against the
father ended with the father’s death.
Exceptions to the maxim of ‘Actio personalis monitor cum persona’ concerning
Defendant: In India, there are various laws that constitute the exception to the above maxim;
The Legal Representative Suits Act, 1885 As per this act, if any person involved in any type
of tortious act, died during the trial. The right of action passes to the legal representative of
that person. Illustration If A does an act of trespass to the good against B in the past. Now if A
dies and it is proved that he was liable for damaging B’s good. So the damages for damaging
B’s goods have to be paid by his legal representative. Similarly, in different laws/acts like the
Fatal Accident Act, Indian Succession Act, Workmen Compensation Act, etc. The
representative of the defendant has to represent him in a court of law.
By Waiver
The second method of discharge of tort is by the waiver. The concept of waiver is when a
person has more than one remedy available to him, as a result, he has to elect one of them. He
cannot apply for both the remedy except in the case of defamation and assault. Illustration If
A files a case against B B has committed a tort against A. If A has the right to get more than
one remedy he has to choose any one of them, i.e. if he has the remedy in both tort and
contract law, now he has to choose one between them.
The main two principles lying in the doctrine of Waiver are: 1. The person has to choose any
one remedy. 2. If the person fails to get the remedy he chooses, the court of law does not
allow him to go back to an alternative remedy.
Illustration: If A files a case against Z and has two remedies for which he can approach the
court of law. If he chooses the first remedy and loses the case. A cannot approach the court
for the alternate remedy i.e., remedy number 2. The Waiver can be Implied or expressed In
Express waiver, the person expressly communicates about his choice in a court of law.
Illustration: If A files a case and he has the remedy in both, contract as well as Tort. When the
court asks him he has to communicate his choice to the court. In the Implied form of waiver,
the person impliedly communicates about his choice for which remedy he is applying.
Illustration: If A has two remedies available to him one under contract and one under Tort. If
he applies for a Contract, it becomes clear, that he elects the remedy under the contract.

Accord and Satisfaction:

The concept of accord means when the parties of the tort i.e. the person who commits the tort
and the person against whom the tort has been committed, come to an agreement and settle
the dispute. Such an agreement is known as an Accord. In general terms, it means settling the
issue by accepting some consideration instead of the right of action. Satisfaction means the
actual payment of consideration agreed upon by both, the person who commits a tort and the
one against whom the tort was committed. When both the accord and satisfaction once
completed, it results in the discharge of tort and the dispute does not proceed in a court of
law.
Illustration If A dies due to injury caused by B’s car. If A’s family agrees that B will pay Rs.
1,50,000 as compensation to them, that’s the situation of Accord. When they received the
actual payment of 1,50,000 Rs. from B, that’s the situation of Satisfaction. So, by settling the
issue and accepting some consideration A’s family lost their right of action, and the act of tort
was discharged. The only condition in the concept of Accord and Satisfaction is the consent
of the party should be free and not from fraud, coercion, or undue influence.
Illustration If A, a son of a successful businessman brutally hits one of his servants i.e.
trespass to the body, and if A tries to make his servant enter into accord by using some type of
undue influence on him. Due to that influence, the servant gave his consent, this is not
considered as free consent and the accord and satisfaction are not valid.
Release
A Release means giving up the right to the action. It means when a person by his own choice
discharged the tort. This right is only provided to the person against whom the wrong has
been done.
Illustration Situation 1: A is the person against whom B does any act of Tort and if A, by his
free consent, wants to release B from the liability, he can do so. Situation 2: A is the person
against whom B and C both commit an act of tort and A by his choice releases B from the
liability, this does not mean that C is also released from his liability.
The release should be voluntary and given with free consent from the injured person. If the
consent is taken by coercion, undue influence, or any other unlawful means then that release
should not be counted as a release and the tort is not discharged.
Illustration If a person is a police inspector, commits an act of tort against another person. By
using his position and by threat, obtaining the consent of the injured person, and releasing
himself from liability, that release is not valid.
Judgement:
In this method, the discharge of tort happens by the judgment given by the court. If once the
court gives judgment on the matter, the tort gets discharged, no appeal for the same act of tort
can be claimed for the same remedy in the court of law. The concept of this method of
discharge of tort is based on the legal maxim of Res Judicata, which means, that if any cause
of action is decided previously by the court, the same cause of action should not be
entertained by the court twice.
Illustration If A gets the remedy against B for the accident committed by him previously by
the judgement of the court. Later he found that he needed to go through a further operation.
He cannot claim another remedy for the same again in the court of law.
In Fitter v. Veal, (1701 12 Mod. Rep. 542) In this case, the plaintiff files a case against the
defendant demanding damages against the act of assault by the defendant, and finally, he gets
the remedy from the defendant as the court of law allows the remedy to him. Later he
discovered that he had to go through several surgeries. He filed another petition against the
defendant demanding more remedy against the act of assault again in the court of law. The
court denied the petition and stated that, If once court gives judgment on the matter, no
further appeal for the same act of tort can be filed in the court of law as the tort gets
discharged.
Exceptions: If the petition was between the same party but is for a different remedy or the
action taken concerning the violation of another right. Then the petition can be allowed. In
Brunsden v. Humphrey: In this case, the plaintiff was a cab driver and already received
compensation against the damage to his cab. Later discovered, due to the injury caused in the
accident, he got a fracture in his hand. He has the right to apply for the remedy against the
trespass to his body as well. If the person who is liable for the act previously does the same
act another time.
Illustration: If A commits the tort of trespass against B previously and is held liable by the
court of law. If he again commits the same crime against B. If A plea defense the court cannot
punish him for the same offense twice. The defense is not valid because this case was
considered a fresh one.
Acquiescence
In this method, the tort gets discharged because of the incapacity of the plaintiff himself i.e. if
he has no time to go to court, no money to pay the court fees, or any other incapacity. When
any person is entitled to enforce his right, and he doesn’t enforce his right for a long time, this
makes the other party waive his liability.
Illustration: if A is entitled to enforce his right against B. If A neglects to enforce his right for
a long time, it automatically waives B from his liability.
Law of limitation
Under this method the tort gets dismissed due to the limitation i.e. when the prescribed time
limit to file the case is over, in this situation the tort gets dismissed and no person is entitled
to enforce his right. Like, in the case of false imprisonment or libel, the limit to file a case is 1
year, in the case of trespass to immovable property, the limit set is 3 years, etc after the time
limit is over, no person can enforce his/her right. Illustration If a tort of trespass to the
property has been committed by B against A, if A fails to apply against it within 3 years in the
court of law, then he cannot apply as he lost his right to apply due to limitation.
Conclusion
A tort is an act/conduct that is twisted. It means the violation of a legal right of a person by
the act of the other person i.e. the breach of the legal right of the other person. But the right of
action of the party can become discharged in certain conditions like the death of any of the
parties, by Waiver, by Accord and Satisfaction, by Release, or by the judgment of the court of
law. Through the above methods, the tort becomes discharged and no remedy will lie for the
tort.