Meaning of General Defences

General defences in tort law are the legal principles that can be used by a defendant to escape
liability for a tortious act. These defences are applied to protect the defendant’s legal rights
and interests. The plaintiff must prove their case, and if the defendant is successful in
establishing a defence, they will not be held liable for any harm or injury caused to the
plaintiff.

Purpose of General Defences in Tort

The primary purpose of general defences in tort law is to provide a fair and just balance
between the legal rights of the plaintiff and defendant. These defences are necessary to ensure
that the defendant’s legal rights are not infringed upon and that they are not held liable for
actions that were beyond their control.
Additionally, these defences provide a framework for determining whether the defendant’s
actions were justified under the circumstances.

Application of General Defences in Torts

General defences in tort law are applicable in various situations. However, it is important to
note that the availability and effectiveness of these defences will depend on the specific
circumstances of each case. A defendant must establish that their actions fall within the scope
of a particular defence to avoid liability.

General Defences in Law of Torts

The defences available in torts are given as follows:
 Volenti non fit injuria or the defence of ‘Consent’
 The wrongdoer is the plaintiff
 Inevitable accident
 Act of god
 Private defence
 Mistake
 Necessity
 Statutory authority

Volenti non fit injuria

The defence of volenti non fit injuria means that the plaintiff has voluntarily assumed the risk
of injury or harm. The defendant can argue that the plaintiff was aware of the risk involved in
the activity and willingly accepted it, and therefore, cannot claim damages for any harm
suffered as a result.
The essential ingredients of this defence are:
a. The plaintiff must have voluntarily and knowingly assumed the risk of harm or injury.
b. The plaintiff must have been aware of the nature and extent of the risk.
c. The plaintiff must have consented to the risk.

Illustration: A professional wrestler, John, takes part in a wrestling match. During the
match, he sustains a severe injury. However, he cannot claim damages for the injury
sustained because he knew the risks involved in the activity and voluntarily participated in it.
In the case of Hall v. Brooklands Auto Racing Club, the plaintiff attended a car racing
event held on the defendant’s track. During the race, two cars collided and one was thrown
into the spectator area, injuring the plaintiff. The court found that the plaintiff knowingly
assumed the risk of attending the race, as the possibility of such an injury was foreseeable. As
a result, the defendant was not held liable for the plaintiff’s injuries.

Similarly, in Padmavati v. Dugganaika, the driver of a jeep picked up two strangers

who needed a lift to a nearby town. While on the way, the jeep overturned due to a problem
with the right wheel, causing the two strangers to be thrown from the vehicle and suffer
injuries, resulting in one person’s death.

The court concluded that the driver’s employer could not be held liable for the accident, as it
was an unforeseeable and involuntary occurrence. Additionally, the principle of volenti non
fit injuria did not apply in this case, as the strangers did not willingly assume any risks when
they entered the vehicle.

In rescue situations, where a person voluntarily assumes a risk to save another from harm or
danger, the courts have generally held that the defence of volenti non fit injuria is not
available.

Illustration: A person jumps into a river to save a drowning child, knowing that the river is
dangerous and that there is a risk of drowning. If the rescuer is injured or killed in the
process, the defendant cannot rely on the defence of volenti non fit injuria. However, the
defendant may argue that the rescuer assumed the risk of injury by voluntarily jumping into
the river to save the child.

In the case of Haynes v. Harwood, the defendant’s employee left two horses unattended
in a public street. A boy threw a stone at the horses, causing them to bolt and endanger a
woman and others on the road. A constable stepped in to protect them and was injured while
doing so. As this was a rescue case, the defence of volenti non fit injuria was not available,
and the defendants were held liable for the constable’s injuries.

However, if a person voluntarily tries to stop a horse that poses no danger, they would not be
entitled to any remedy. This means that the principle of volenti non fit injuria would be
available as a defence, and the person would not be able to hold the horse owner liable for
any injuries they sustain.

Plaintiff the wrongdoer

There is a maxim “Ex turpi causa non oritur actio” which says that “from an immoral cause,
no action arises.
The defence of plaintiff the wrongdoer means that the plaintiff was also responsible for the
harm or injury suffered. The defendant can argue that the plaintiff’s actions contributed to the
harm suffered, and therefore, they should not be held solely liable for the damages.
The essential ingredients of type of general defences in tort are:
a. The plaintiff must have contributed to the harm or injury suffered.
b. The plaintiff’s contribution to the harm must be significant.

Illustration: Tom is driving on the wrong side of the road and collides with a car driven by
Mike. Both Tom and Mike suffer injuries. However, Tom can argue that Mike was also at
fault as he was driving at an excessive speed, and therefore, he should not be held solely
responsible for the damages.
In Bird v. Holbrook, the plaintiff was awarded damages for injuries he sustained due to
spring-guns set up in the defendant’s garden without any warning.
In Pitts v. Hunt, a rider who was 18 years old encouraged his 16-year-old friend to drive
recklessly under the influence of alcohol. The motorcycle they were on crashed, and the
driver died instantly. The pillion rider suffered serious injuries and filed a suit seeking
compensation from the deceased’s relatives. However, the plea was rejected as the plaintiff
himself was found to be the wrongdoer in this case. This illustrates the defence of plaintiff as
the wrongdoer, which may be used to argue against a claim of compensation by a plaintiff
who contributed to their own injuries through their own wrongful conduct.

Inevitable accident

The defence of inevitable accident means that the harm or injury suffered was not
preventable. The defendant can argue that the harm or injury was due to unforeseeable
circumstances, and therefore, they should not be held liable for it.
The essential ingredients of this type of general defences in tort are:
a. The harm or injury suffered was not foreseeable.
b. The harm or injury suffered was due to unforeseeable circumstances.

Illustration: A tree branch falls on a car, causing significant damage. The car owner cannot
claim damages from the owner of the tree as the falling of the branch was due to
unforeseeable circumstances and was not preventable.

In the case of Stanley v. Powell, both the defendant and the plaintiff were participating in
a pheasant shooting event. While the defendant was aiming at a pheasant, the bullet
ricocheted off an oak tree and hit the plaintiff causing serious injuries. The incident was
deemed an inevitable accident, and the defendant was held not liable.

Similarly, in Assam State Coop., etc. Federation Ltd. v. Smt. Anubha

Sinha, the plaintiff had leased out their premises to the defendant. The defendant had
requested the landlord to repair the defective electric wirings of the premises, but the landlord
failed to do so. Due to a short circuit, a fire broke out in the house, causing damages. The
tenant was not negligent in any way. When the landlord claimed compensation for the
damage, it was held that it was an inevitable accident, and the tenant was not liable.

The case of Raj Rani v. Oriental Fire & General Ins. Co. Ltd. involved a
truck whose front right spring and other parts broke unexpectedly while being driven, causing
the driver to collide with a tractor coming from the opposite direction. Both the driver and the
owner of the truck were unable to prove that they had taken necessary precautions while
driving. The court found that this case was one of negligence and not an inevitable accident,
and therefore held the defendant liable.

Act of God
The defence of an act of God means that the harm or injury suffered was due to natural events
beyond human control. The defendant can argue that the harm or injury was caused by an act
of God, and therefore, they should not be held liable for it.
The essential ingredients of these general defences in tort are:
a. The harm or injury suffered was due to natural events beyond human control.
b. The defendant could not have prevented the harm or injury.
Illustration: A sudden flood damages a property, and the property owner cannot claim
damages from the government as the flood was caused by a natural event beyond human
control.

In the case of Kallu Lal v. Hemchand, the wall of a building collapsed due to rainfall
of about 2.66 inches, which was considered normal. The collapse resulted in the death of the
respondent’s children. The court held that the defence of Act of God cannot be applied by the
appellants in this case, as the amount of rainfall was not sufficient to invoke such a defence.
Thus, the appellants were held liable for the incident.

Private defence
The defence of private defence means that the defendant acted in self-defence or defence of
another person or property. The defendant can argue that their actions were necessary to
protect themselves or others from harm or injury.
The essential ingredients of this defence are:
a. The defendant must have acted in self-defence or defence of another person or property.
b. The defendant’s actions must have been necessary to prevent harm or injury.

Illustration: Jack sees a person assaulting his friend, and he intervenes to protect his friend.
Jack cannot be held liable for any harm or injury caused to the assailant as he acted in
defence of his friend.

The case of Bird v. Holbrook involved the plaintiff, a trespasser, who was injured by
spring guns installed by the defendant in his garden without any warning. The court ruled that
the defendant was not justified in his actions and that the plaintiff was entitled to
compensation for their injuries.

Similarly, in Ramanuja Mudali v. M. Gangan, the defendant had laid a network of

live wires on their land, which caused serious injuries to the plaintiff who crossed the land at
night without notice. The court held the defendant liable for their actions, as the use of live
wires was not justified.

In Collins v. Renison, the plaintiff was thrown off a ladder by the defendant when he
attempted to nail a board on the defendant’s garden wall. The defendant argued that he had
only gently pushed the plaintiff, but the court ruled that the force used was not justifiable as a
defence.

Mistake
The defence of mistake means that the defendant made an honest mistake and did not intend
to cause harm or injury. The defendant can argue that they did not have the required
knowledge or information to act differently.
The essential ingredients of this defence are:
a. The defendant made an honest mistake.
b. The mistake was made in good faith.
c. The mistake was not intentional.
Illustration: John, a doctor, prescribes the wrong medicine to a patient due to a mix-up in the
patient’s medical history. The patient suffers an adverse reaction to the medicine. However,
John cannot be held liable for the harm caused as he made an honest mistake.

In the case of Morrison v. Ritchie & Co, the defendant mistakenly published a statement
that the plaintiff had given birth to twins in good faith when in reality the plaintiff had only
been married for two months. The defendant was held liable for the tort of defamation, and
the fact that they acted in good faith was considered irrelevant in this case.

Similarly, in Consolidated Company v. Curtis, an auctioneer mistakenly believed that the

goods he auctioned off belonged to his customer. However, the true owner filed a suit against
the auctioneer for the tort of conversion. The court held the auctioneer liable and stated that
the defence of mistake of fact is not applicable in this case.

Necessity
The defence of necessity means that the defendant’s actions were necessary to prevent a
greater harm or injury. The defendant can argue that their actions were necessary under the
circumstances to prevent harm or injury to themselves or others.
The essential ingredients of this defence are:
a. The defendant’s actions were necessary to prevent greater harm or injury.
b. The defendant’s actions were not disproportionate to the harm or injury prevented.

Illustration: A firefighter breaks into a house to put out a fire, causing damage to the
property. However, the firefighter cannot be held liable for the damage caused as their actions
were necessary to prevent harm to human life.

The defendant in the case of Carter v. Thomas entered the plaintiff’s land in order to
extinguish a fire in good faith, while the fire extinguishing workers were already on the
premises. However, despite his good intentions, the defendant was found guilty of the offence
of trespass.

Similarly, in Kirk v. Gregory, A’s sister-in-law hid some jewelry in the room where A
was lying dead, believing it to be a safer place. The jewellery was subsequently stolen, and a
case was filed against A’s sister-in-law for trespass to the jewelry. The court found her liable
for trespass as her actions were deemed unreasonable.

Statutory authority
The defence of statutory authority means that the defendant was acting under the authority of
a statute. The defendant can argue that their actions were permitted by law, and therefore,
they should not be held liable for any harm or injury caused.
The essential ingredients of this defence are:
a. The defendant was acting under the authority of a statute.
b. The defendant’s actions were permitted by law.
Illustration: A police officer uses force to subdue a suspect while making an arrest. The
police officer cannot be held liable for the harm or injury caused as their actions were
authorized by law.

In the case of Hammer Smith Rail Co. v. Brand, the plaintiff’s property value
decreased due to the loud noise and vibrations produced by the trains on the railway line
constructed under a statutory provision. The court ruled that the defendant could not be held
liable for damages as the construction was authorized by the statute, serving as a complete
defence.

Similarly, in Smith v. London and South Western Railway Co ., the

defendant’s servants left the trimmings of hedges near the railway line, which caught fire due
to sparks from the engine and caused damage to the plaintiff’s cottage. The court held the
railway authority liable for negligence and ordered them to pay compensation to the plaintiff
for the loss suffered.

Conclusion
General defences in tort law provide defendants with the legal framework to protect their
legal rights and interests. However, it is essential to note that the availability and
effectiveness of these defences will depend on the specific circumstances of each case. It is
the responsibility of the court to carefully consider the evidence presented by both parties and
determine whether a defence is valid or not.