Name -Subhadra Subhadarsani

Regd number -1941801017

Topic -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.

Meaning of General Defenses

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 defences in the law of
tort.

The defenses available are given as follows:

 Volenti non fit injuria
 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 express or implied.

Some examples of the defense 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 defense to be available the act should not go beyond
the limit of what has been consented.

In Hallv. Brooklands Auto Racing Club, 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 not 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, 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, 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.

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 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, 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, 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, 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, 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, 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, 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.

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, 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,

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.

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-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 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,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, 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 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, 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.

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., 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, 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.