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ACKNOWLEGDEMENT

I have taken efforts in this project. However, it would not have been possible without the kind
support and help of many individuals and organizations. I would like to extend my sincere
thanks to all of them.

I am highly indebted to Ms. Smriti Tanvani Maam for their guidance and constant
supervision as well as for providing necessary information regarding the project & also for
their support in completing the project.

I would like to express my gratitude towards my parents & member of Amity Law School for
their kind co-operation and encouragement which help me in completion of this project.

I would like to express my special gratitude and thanks to industry persons for giving me
such attention and time.

My thanks and appreciations also go to my colleague in developing the project and people
who have willingly helped me out with their abilities.

RISHI RAAJ
BBA LL.B. (H)
1ST SEMESTER
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INTRODUCTION

The term 'tort' is the French equivalent of the English word 'wrong' and of the Roman law
term 'delict'. The word tort is derived from the Latin word 'tortum' which means twisted or
crooked or wrong.
Tortuous liability arises from the breach of a duty primarily fixed by law; this duty is towards
persons generally and its breach is repressible by an action for unliquidated damages
(Winfield and Jolowicz, 2002). In the words of Salmon (2009), a tort is a civil wrong for
which the remedy is a common action for unliquidated damages, and which is not exclusively
the breach of a contract or the breach of a trust or other mere equitable obligation. The person
who has committed a tort, i.e. violated the legal right of another person thereby does a wrong
directly or indirectly to him is called Tortfeasor. If the person is found to be guilty, he will
have to compensate for the damages. If two tortfeasors commit a tort independently, they are
called independent tortfeasors. If they commit a 'tort' together, they are called joint
tortfeasors.

General defenses are a set of defenses or ‘excuses’ that one can undertake to escape from
tortuous liability in tort only if one’s action have qualified a specific set of conditions that go
attached with these defenses, when the plaintiff brings an action against defendant for a
particular tort, providing the existence of all the essential of that tort the defendant would be
liable for same. The defendant may, however, even in such a case, avoid his liability by
taking the plea of some defense. There is some specific defense which is peculiar to some
defense. There are some specific defenses 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 is some general defense which may be taken against the action for a
number of wrongs. For example, the general defense of consent may be taken, whether the
action is for trespass, defamation, false imprisonment, or some other wrong.

The General defences are as follows:

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

2. Plaintiff the wrongdoer
3. Inevitable accident
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4. Act of God
5. Private Defense
6. Mistake
7. Necessity
8. Statutory Authority

VOLENTI NON FIT INJURIA

In action of tort the leave and license of the plaintiff to do the act complained of usually
provides a good defense by reason of the maxim volenti non fit injuria.

The maxim is applied in favour of defendants who are sued for damages for personal injuries.
Illot v. Wilkes, the maxim was applied in a case where a man was hurt by a spring gun while
he trespassed in a wood after being warned by the owner that in it there were spring-gun set.

The application of the maxim volenti non fit injuria is often a question of fact rather than law.
Everyone is the best judge of their interest and therefore the one who voluntarily agrees to
suffer harm is not allowed to complain for that and the ones consent is a good defence against
oneself. This is so because the harm voluntarily suffered doesn’t constitute the legal injury.

CASE LAWS:

In Hall v. Brook lands Auto Racing Club (1933), petitioner could not succeed in a claim for
being injured in collision of two racing cars as a risk. The plaintiff, a spectator at a car race,
being conducted by the defendant was injured when a car was accidently thrown into the
spectator’s enclosure. It was held that the plaintiff impliedly took the risk of such injury the
danger being inherent in the sport, and therefore, the defendants were held not liable.

In Padmavati v. Dugganaika (1975), the driver was taking the jeep for filling petrol in the
tank; two strangers took lift in the jeep. Suddenly one of the bolts fixing the right front wheel
to the axle gave way toppling the jeep. The two strangers were thrown out and sustained
injuries, and one of them died as a consequence of the same. It was held that neither the
driver nor his master could be made liable, first, because it was a case of sheer accident and,
secondly, the strangers had voluntarily got into the jeep and as such, the principle of non fit
injuria was applicable to this case.
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For the maxim volenti non fit injuria to apply, two points have to be proved,

1. The plaintiff knew that the risk is there

2. He, knowing the same, agreed to suffer the harm

EXCEPTIONS TO THIS DEFENCE:

In the following conditions, this defence cannot be taken even if the plaintiff has consented:

1. Rescue Conditions: When the plaintiff suffers injury while saving someone. For
example, A's horse is out of control and is galloping towards a busy street. B realizes
that if the horse reaches the street it will hurt many people and so he bravely goes and
control's the horse. He is injured in doing so and Sue's A. Here, A cannot take the
defence that B did that act upon his own consent. It is considered as a just action in
public interest and the society should reward it instead of preventing him from
getting compensation.
2. Unfair Contract Terms: Where the terms of a contract are unfair, the defendant
cannot take this defence. For example, even if a laundry, by contract, absolves itself
of all liability for damage to clothes, a person can claim compensation because the
contract is unfair to the consumers.

PLAINTIFF THE WRONGDOER

The law excuse the defendant when the act done by the plaintiff itself was illegal or wrong.
This defence arises from the Latin maxim “ex turpi causa non oritu action” which means
no action arises from an immoral cause. So an unlawful act of the plaintiff itself might lead to
a valid defence in torts. This maxim applies not only to tort law but also in contract,
restitution, property, and trusts. A person cannot take advantage of his own wrong. This
principle has been in use since long time as it is just and equitable. This defence exists only if
the injury happens because of a wrongful act of the plaintiff. It does not exist if the injury
happens because of a wrongful act of the defendant even if the plaintiff was doing a wrongful
but unrelated act. For example, in Bird v. Holbrook (1828), the plaintiff was trespassing on
the defendant's property and he was hurt due to a spring gun. The defendant had put spring
guns without any notice and was thus held liable.
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CASE LAWS:

In Pitts v. Hunt (1991), 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 for claiming compensation from the relatives of the deceased person. This plea was
rejected as he himself was the wrongdoer in this case.

INEVITABLE ACCIDENT

Inevitable accident means an unexpected occurrence of something that could not have been
predicted or prevented. In such a case, the defendants will not be liable if they had no
intention to cause it and if the plaintiff is injured because of it. For example, in Stanley v.
Powell (1891), the plaintiff and the defendant were members of a shooting party. The
defendant shot a bird, but the bullet ricocheted off a tree and hit the plaintiff. The defendant
was not held liable because it was an accident and the defendant did not intent it and could
neither have prevented it.

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.

CASE LAW:
In the case of Holmes v. Mather (1875), the defendant’s horse was being driven by his
servant. Due to the barking of dogs, the horse became unmanageable and started to bolt. In
spite of 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.
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ACT OF GOD (VIS MAJOR)

An act of God, in a legal sense, is an extraordinary occurrence of circumstance which could

not have been predicted or prevented and happens because of natural causes. For example,
nobody can predict, prevent, or protect from a natural disaster such as an earthquake or flood.
Thus, it is unreasonable to expect a person to be liable for damages caused by such acts of
God. There are two essential conditions for this defence; the event must be due to a natural
cause, and it must be extraordinary or something that could not have been anticipated or
expected.
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:

 There must be working of natural (like exceptionally heavy rainfall, storms,

earthquakes, tides and volcanic eruptions) without any human intervention.

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

Note- a road accident due to heavy fog is not covered under the act of god.

CASE LAWS:

WORKING OF NATURAL RESOURCES

In Ramalinga Nadar v. Narayan Reddiar (AIR 1971 Ker 197), 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.

OCCURRENCE MUST BE EXTRAORDINARY

In Kallu Lal v. Hemchand (1958 MP 48), 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.
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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-defence.

 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.

CASE LAWS:

In Bird v. Holbrook (1828), 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.

In Collins v. Renison (1973), 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
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just gently pushed him off the ladder and nothing else. It was held that the force used was not
justifiable as the defence.

MISTAKE

Generally, mistake is not a valid defence against an action of tort. Thus, hurting a person
under the mistaken belief will not be defensible. However, in certain cases, it could be a valid
defence. For example, in the case of malicious prosecution, it is necessary to prove that the
defendant acted maliciously and without a reasonable cause. If the prosecution was done only
by mistake, it is not actionable. Further, honest belief in the truth of a statement is a defence
against an action for deceit.

The mistake is of two types:

 Mistake of law- A mistake of law is where you are mistaken or ignorant about the
law. For example, if you believe that you don't have to come to a complete stop at a
"Stop" sign when there are no other cars at the intersection, you have made a
mistake of law. Whether there are cars or not, you must come to a complete stop. In
almost every case, you will not be allowed to argue that you didn't know or
misunderstood the law. That is, it won't be a defense.
 Mistake of fact- A mistake of fact is just that: a mistake pertaining to some fact. For
example, if you are 35 years old but I think you are 34, I have made a mistake of
fact. A mistake of fact can serve as a defense.

CASE LAWS:

In Morrison v. Ritchie & Co (1902), 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 (1894), an auctioneer auctioned some goods of his

customer, believing that the goods belonged to him. But then the true owner filed a suit
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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.

CASE LAWS:

In Leigh v. Gladstone (1909), it was held that the forcible feeding of a person who was
hunger-striking in a prison served as a good defence for the tort of battery.

In Cope v. Sharpe (1912), 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.

STATUTORY AUTHORITY

An act that is approved by the legislature or is done upon the direction of the legislature is
excused from tortuous liability even though in normal circumstances it would have been a
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tort. When an act is done under the authority of an Act, it is a complete defence and the
injured party has no remedy except that is prescribed by the statute.

A few examples are given below:

1. A punches B, but not causing any physical injuries. B can still sue A, because while A
has not caused any physical injury, he has caused a legal injury.
2. A publishes false claims about B in a magazine. B can claim damages from A for
damaging his reputation; Defamation.

Immunity under statutory authority is not given only for the harm which is obvious but also
for the harm which is incidental.

CASE LAWS:

In Vaughan v. Taff Valde Rail Co. (1860), 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 Smith v. London and South Western Railway Co. (1869), 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.
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BIBLIOGRAPHY

 RK BANGIA LAW OF TORTS

 https://www.legalbites.in/general-defences-defence-against-tortious-liability/

 https://blog.ipleaders.in/general-defences-under-law-of-torts/

 https://www.legalmatch.com/law-library/article/