GENERAL DEFENCES

Some specific defences are available in a suit for tort.

These defences are specific and find application in relation to
a fixed nature of tort. Other defences are general in nature and
can be classified as:
 Volenti non fit injuria, or the defence of
‘consent’
 Inevitable Accident.
 Act of God.
 Private Defence.
 Necessity.
 Statutory Authority.
 When plaintiff is the wrongdoer.
INTRODUCTION:
When the plaintiff brings an action against the defendant for a
particular tort, providing the existence of all essentials of that
tort, the defendant would be liable for the same. The
defendant may, however, even in such a case, avoid his
liability by taking plea of some defence.
There are some specific defences, which are peculiar to some
particular wrongs, for example, in an action for defamation,
the defences of privilege, fair comment or justification are
available. There are some general defences which may be
taken against action for number of wrongs. For example, the
general defence of ‘Consent’ may be taken, whether the action
is for trespass, defamation, false imprisonment, or some other
wrong
1.Volenti non fit injuria.

This principle states that if one voluntarily takes the risk of

something then he may not claim a suit of action of such risk
leads to injury. However this risk must have been taken under
free consent and not under coercion and with the full
knowledge of the risk.
A corollary of this principle is Scienti non fit injuria which
means that only knowledge of the risk is not enough to claim
defence there must be acceptance to undergo the resultants of
the risk undertaken. There had to be consent and mere
knowledge is not sufficient.
CASE LAWS:
1. Lakshmi rajan vs. Malar hospital
In this case, the plaintiff had a tumour on her breast and went
to a hospital to get it surgically removed; she consented to the
surgical procedure for the removal of the tumour. The tumour
had nothing to do with her uterus. The surgeon not only
removed the tumour, but also removed her uterus. The
hospital was held liable because they had performed an action
without the consent of the patient and the court found the
defendants liable.
 If the consent is obtained by fraud, the consent is not real
and cannot be used as a defence in a tort.
 If the consent is obtained from a person who is forced to
give his consent and is not given the freedom of choice.
That consent is not taken into account because the person
 is no longer free to choose his options. This is usually
present in master servant relationships where, the servant
is forced to commit an act under pressure. Thus there is
no principle of volenti non fit injuria does not apply to a
servant if he is forced to carry out an act despite his
protests.

2.Hall vs. Brooklands Auto Racing Club

In this case the plaintiff was a spectator at a car race held on a
track owned by the defendant. During the race, a car flew into
the audience and injured the plaintiff. The court found that the
plaintiff had consented to the possibility of being injured by
purchasing a ticket to the race while being aware that a
serious accident could occur. The court stated that such a
danger was easily foreseeable in a sport of this nature and the
plaintiff took the risk of being exposed to the danger.
3. Padmavati vs. Dugganaika
In this case, the defendants were going to a petrol station in
their jeep, when the plaintiffs stopped them and asked for a
ride, the defendants agreed and the plaintiffs boarded the jeep.
While travelling, one of the screws in the wheels came off and
the jeep crashed, killing one of the plaintiffs. The court found
that the defendants were not liable because of the sheer
accidental nature of the incident and also the plaintiffs agreed
to board the jeep and thus, consented to the possibility of
being injured in an accident. The principle of volunti non fit
injuria is applicable in this case.
2. Inevitable Accident.
This is a defence that can be claimed under a situation where
inspite of taking reasonable care and protection the harm
could not be averted. This does not mean absolutely inevitable
but unavoidable even after taking necessary precautions with
respect to the harm in question.
Sandipan and Shayak went to the Sunderbans to shoot
pheasants. Sandipan’s bullet skidded off the bark of a tree and
hit Shayak while he was talking on the phone. Shayak was
injured and sued his friend for compensation. The defence of
inevitable accident could herein be rightfully claimed by
Sandipan. (Similar facts in Stanley v. Powell).
CASE LAWS:
1. Stanley vs. Powell
In this case, the defendant and plaintiff were part of a shooting
party that went hunting, the defendant shot at a pheasant but
his bullet glanced off an oak tree and hit the plaintiff. The
court ruled that the act was an inevitable accident and the
defendant had taken all the care that is expected of a
reasonable prudent man.
2. Shridhar tiwari vs. UP State Road Transport Corp
In this case, a bus driving down the road suddenly applied his
brakes to stop from hitting a cyclist who suddenly swerved
into the road. As a result of the rains, the road was wet and
slippery and the rear portion of the bus hit the front portion of
another bus coming from the opposite direction. The court
ruled that since the busses were driving at moderate speeds
and were driving with prudence expected of a reasonable man.
The defendant corporation was not held liable.

3.Act of God.
When something occurs over which you have no control and
it is effected of accentuated by the forces of nature then you
are not liable in tort law for such inadvertent damage that may
arise out of such. However if you were well aware of the risks
and could have possibly taken steps to stop the wrongful act
or damaging act or have in anyway mitigated it then you
cannot duck responsibility under this defence. Constituents of
this defence:
• Due to forces of nature or unnatural circumstances.
• You had no control over it and it happened suddenly.
• You had no knowledge or could not do anything to mitigate
the damage.
CASE LAWS:
1. Ramalinga Nadar vs. Narayan Reddiar
In this case the plaintiff’s goods that were being transported in
the defendant’s truck was stolen by an unruly mob. The
defendant tried to plead the defence of n act of god; however,
the court ruled that an act of god had to be an act that could
trace its roots back to a natural cause.
2. Nichols vs. Marsland
In this case the defendant created a series of artificial lakes
and built embankments to contain them. One day due to
extremely heavy rainfall, the heaviest in human memory, the
embankments broke and the water washed away four bridges
owned by the plaintiff. The court held that the defendant was
not liable as there was an act of god that contributed to the
damage.
4. Private Defence
Nothing is wrong if done with regard to protecting one’s own
self, another self, one’s property or another’s property against
a threat to such. Suppose Someone points a loaded gun at me
and threatens me I do have the right to bodily harm that
person in order to save myself or someone else. However
there are limitations to such rule with regard to the force being
used which must be proportional to the risk presented.
Points to remember about private defence:
Risk must be immediate and sudden.
Force used must be proportionate to the risk at hand.

CASE LAWS:
1. Bird vs. Holbrook
In this case, the defendant fixed spring guns in his plot to try
and keep away trespassers. The plaintiff trespassed into the
defendant’s plot and was severely injured by the spring guns.
The court held the defendant liable because of the use of
disproportionate force while defending his property.
2. Mudali vs. M Gangan
In this case the defendant had placed a live wire running
across his land, when the plaintiff passed through the
defendant’s land to go to his own house; he came in contact
with the wire and was seriously injured. The court held that
the defendant was liable because the force used to protect his
property was unreasonable and excessive.
 3. Collins vs. Renison
In this case, the plaintiff trespassed into the defendant’s
property and was trying to nail something onto the
defendant’s wall. The defendant, on seeing this, shook the
ladder and the plaintiff fell onto the ground sustaining severe
injuries. The court ruled that the defendant had responded to
the plaintiff’s trespass with excessive force.
5.NECESSITY
Under dire conditions if one does something which results in a
tort then once can usually claim the defence of necessity.
Such condition should however be able to come under the
bracket of ‘general good’ or ‘greater good’ and to prevent a
bigger harm.
Anindita and Sanya are nighbours. Sanya’s house was on fire
so she trespassed onto Anindita’s property to draw water from
the latter’s well to douse the fire (prevent a greater harm).
Thus she is covered under the defence of necessity.

CASE LAWS:
1. Leigh vs. Gladstone
In this case the plaintiff was a prisoner who was undertaking a
hunger strike, the defendant was the warden of the jail and he
had to force feed her in order to save her life. The court held
that the defendant was not guilty of the tort of battery.
2. Cope vs. Sharpe
In this case, the plaintiff’s house caught fire and the defendant
rushed inside and tried to put it out. The defendant was trying
to put the fire out so that it wouldn’t spread to the nearby
areas. The court ruled that the defendant was not liable for
trespass as he had committed an act of necessity.
3. Kirk vs. Gregory
In this case when A died, his sister in law removed some
jewellery from the room in which A’s body was placed and
kept it in another place thinking that it would be safer. The
jewellery was stolen from there and A’s estate guardians filed
a case against the defendant. The court ruled that since there
was no reasonable necessity in the defendants actions, she was
liable to pay the damages.
 6. STATUTORY AUTHORITY:
 Statutory authority is the authority derived from a statute
or legislation. When legislation is passed, empowering a
person to commit a certain act, that authority granted by
the statute is a defence against liability for torts.
 Even if, under normal circumstances, the action would
have resulted in a tort, if there is statutory authority, the
defendant cannot be held liable
 An example of this would be when the railways of a
country build railway tracks across a person’s land, the
railways cannot be held liable for a tort because it is
protected by a statute and has the authority to commit a
certain action.
1. Vaughan vs. Taff Valde Rail Co
In this case the defendant rail company had laid down tracks
over the land of the plaintiff. One day, the sparks from the
train set fire to the plaintiff’s woods. The court found that
since the railway company had taken all the necessary
precautions, they could not be held liable for the damage.
2. Hammer Smith Rail co vs. Brand
In this case the plaintiff stated that the defendant’s railway
lines were causing depreciation in the value of his property
due to the excessive noise and smoke of passing trains. The
court ruled that the defendant company was granted authority
by the state to build railway tracks.
3. Smith vs. London and South Western Railway co
In this case the employees of the defendant company had
trimmed the grass beside the tracks and had left the bales
lying next to the tracks. The bales caught fire due to the
sparks from a passing train and the fire spread to the
plaintiff’s cottage. The court said that the company had been
negligent and awarded damages to the plaintiff.
 There are two types of statutory authority, conditional
and absolute. In the case of conditional authority, the
authority granted to a person to perform an act is granted
with some conditions. In the case of absolute authority,
the authority is absolute and there is no liability no
matter what conditions arise.
7. THE PLAINTIFF AS A WRONG DOER:
Under contract, one of the principle is that no court will aid a
person who found his cause of action upon an immoral or an
illegal act.
Maxim applied- Ex turpi causa non oritur action– From an
immoral cause, no action arises.
The mere fact that the plaintiff was wrong doesn’t entitle him
from receiving damages from defendant for wrongful act.
CASE LAW:

Bird v. Holbrook- Bird (defendant) set a spring gun tap in his

garden to protect his property. The spring gun trap injured
Holbrook (plaintiff) innocent trespasser. Plaintiff sued the
defendant and claim for damages. Defendant was held liable.
 K.R.MANGALAM UNIVERSITY

NAME: VIGNESH CHATHRAPATHI

DISCIPLINE: LAW
COURSE: BALLB
ROLL NO: 1705170003
SUBJECT: LAW OF TORTS
 INDEX

1. ACKNOWLEDGEMENT.............................
2. INTRODUCTION..........................................
3. GENERAL DEFENCES................................
4. BIBLIOGRAPHY..........................................
 ACKNOWLEDGEMENT
I am thankful to and fortunate enough to get constant
encouragement, support and guidance from all Teaching staffs
of law department and my teaching staff who helped me in
successfully completing my assignment work. Also, I would
like to extend our sincere esteems to all my friends and family
for their timely support.
 BIBLIOGRAPHY
REFERED BOOKS:
1. R.K.BANGIA LAW OF CONTRACT
2. LEXIS NEXIS LAW OF CONTRACT

REFERED WEBSITES:

1. WWW.WIKIPEDIA .COM

2. WWW. LEGAL BITES.IN