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DR. RAM MANOHAR LOHIYA NATIONAL LAW

UNIVERSITY

LAW OF TORTS
FINAL DRAFT
GENERAL DEFENCES

Submitted to:

Submitted by:

Dr. R.K Yadav

Shivani Chauhan

(Assistant Professor)

Roll no. - 127

B.A. (LL.B) 1st Semester

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ACKNOWLEDGEMENT
The whole case analysis in Law of Torts has been given shape and success by the effort of
a lot of people who has contributed in it completion.
I express my humble thanks to Dr. R.K. Yadav(Assistant Professor), my subject teacher of
Basics of Case Law under whose supervision the whole project has been made and without
whose teachings and insights this project could not have been fructified.
I also extend my heartiest thanks to my seniors for their insights into the concerned final
draft of the project and helping with me with everything I asked them. The role of the
library department is also noteworthy. All the staff members helped me generously in
getting the material and information I needed to complete this project.

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TABLE OF CONTENT
(1) INTRODUCTION...4
(2) VOLENTI NON FIT INJURIA...5
(3) PLAINTIFF, THE WRONGDOER6
(4) INEVITABLE ACCIDENT7
(5) ACT OF GOD..9
(6) PRIVATE DEFENCE.11
(7) MISTAKE12
(8) NECESSITY14
(9) STATUTORY AUTHORITY..16
(10) BIBLIOGRAPHY .18

INTRODUCTION

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This chapter addresses defences to liability in tort. The concern is not to identify the
rationales for specific defences (or lack thereof). Nor is it to determine the circumstances in
which individual defences are enlivened (or should be enlivened). Rather, its purpose is to
explain how defences operate as a coherent system. How many types of defences are
recognised by tort law? What can be learned about a defence from the way in which it is
categorised? Although defences are an important part of tort law and have existed since its
inception, an analysis of this kind has never been undertaken. The chapter begins by defining
the term defence. Taxonomy of defences will then be delineated.
Thereafter, it will be suggested how a substantial number of defences should be categorised
within the taxonomy. The analysis here will be illustrated with examples from commercial
law where appropriate. Finally, it will be shown that the way in which defences are classified
has important implications.
There are generally 8 defences in law of torts. These are:
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)

Volenti non fit injuria

Plaintiff, the wrongdoer
Inevitable accident
Act of god
Private defence
Mistake
Necessity
Statutory authority

VOLENTI NON FIT INJURIA

Volenti non fit iniuria (or injuria) (Latin: "to a willing person, injury is not done") is a
common law doctrine which states that if someone willingly places themselves in a position

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where harm might result, knowing that some degree of harm might result, they are not able to
bring a claim against the other party in tort or delict. Volenti only applies to the risk which a
reasonable person would consider them as having assumed by their actions; thus a boxer
consents to being hit, and to the injuries that might be expected from being hit, but does not
consent to (for example) his opponent striking him with an iron bar, or punching him outside
the usual terms of boxing. Volenti is also known as a "voluntary assumption of risk."
Volenti is sometimes described as the plaintiff "consenting to run a risk." In this context,
volenti can be distinguished from legal consent in that the latter can prevent some torts
arising in the first place. For example, consent to a medical procedure prevents the procedure
from being a trespass to the person, or consenting to a person visiting your land prevents
them from being a trespasser.
There are some points to be kept in mind that:
(a)
(b)
(c)
(d)
(e)

The consent must be free

Consent must not be obtained by fraud
Consent must not be obtained under compulsion
Mere knowledge does not imply assent
Negligence of the defendant

Though there are certain limitations on the scope of this doctrine:

(a) In rescue cases
(b) By the Unfair Contract Terms Act, 1977
Important cases in this defence are:
(a)
(b)
(c)
(d)

Haynes v. Harwood
Wagner v. International Railway
Baker v. T.E.Hopkins & Son
Dann v. Hamilton

PLAINTIFF, THE WRONGDOER

This defence is based on the maxim Ex turpi causa non oritur actio which means no action
rises from an immoral cause. So, when the action of the plaintiff is unlawful itself, it might
lead to a defence in general. This maxim means that if the basis of the action of the plaintiff is
an unlawful contract, he will not, in general, succeed to his action.

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It is doubtful whether the defendant can take such a defence under the law of torts and escape
liability by pleading that at the time of the defendants wrongful act, the plaintiff was also
engaged in doing something wrongful. The principle seems to be that the mere fact that the
plaintiff was a wrongdoer does not disentitle him from recovering from the defendant for
latters wrongful act. The plaintiff may have to answer for his wrongful act but he does not
forfeit his right of action for the harm suffered. Thus, if a trespasser enters my premises, I
cannot inflict unnecessary injuries upon him and if any such injury is caused, the trespasser
is liable to an action for injury sustained.
According to Sir Frederick Pollock, when the plaintiff himself is a wrongdoer, he is not
disabled from recovering in tort unless some unlawful act or conduct on his own part is
connected with the harm suffered by him as a part of the same transaction.
Thus, it has to be seen as to what is the connection between the plaintiffs wrongful act and
the harm suffered by him. If his own act is the determining cause of the harm suffered by
him, he has no cause of action.
For example, a bridge, under the control of the defendant, gives way when an overloaded
truck, belonging to the plaintiff, passes through it. If the truck was overloaded, contrary to the
warning notice already given and the bridge would not have given way if the truck was
properly loaded, the plaintiffs wrongful act is the determining cause of the accident. In such
a case, even if the bridge was not under proper repairs, the plaintiffs action will fail.

INEVITABLE ACCIDENT
The defence of inevitable accident in personal injury litigation is one that posits a nontortious explanation for an accident. It asserts that where an accident is purely inevitable, and
is not caused by the fault of either party, the loss lies where it falls.

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According to the authorities, once the plaintiff establishes a prima facie case of negligence,
the onus will shift to the defendant to prove inevitable accident. In so doing, the defendant is
required to show how the accident took place and that the loss of control of the vehicle could
not have been avoided by the exercise of the greatest care and skill.
A defendant may thus escape liability by showing one of two things:
(i)

the cause of the accident, and the result of that cause was inevitable; or

(ii)

all the possible causes, one or other of which produced the effect, and with regard to

every one of these possible causes that the result could not have been avoided.
This standard, though certainly a high one, is not a test of perfection.
In light of the foregoing general principles, a plaintiff seeking to undermine or defeat a
defendants reliance on the defence of inevitable accident must challenge with evidence
and argument the defendants explanation of how the accident, collision or mishap occurred
without his negligence. As is clear from a perusal of the recent jurisprudence, there are
definite limitations on the availability of the defence and it is unlikely to prevail if the person
seeking to invoke it caused or contributed in any way to the emergency situation.
Some of the factors that will be relevant in considering whether the conduct of a driver can be
characterized as negligent, such that the doctrine of inevitable accident ought not to be
engaged, include: road conditions, weather, speed, the condition of the vehicle, the intensity
of the vehicles headlights, the drivers experience and his/her familiarity with the roadway,
the drivers reaction to the risk presented, any evasive action taken, other traffic on the
roadway, and the physical and mental condition of the driver (ie. fatigued, distracted, dizzy,
experiencing a medical crisis or condition, etc.).
The defence of inevitable accident in personal injury litigation is one that posits a nontortious explanation for an accident. Halsburys Laws of Canada, Negligence - V.5,
characterizes this defence in the following terms:
Although once useful as a defence to the action for trespass, today defendants in
negligence cases normally do not need to avail themselves of the plea of inevitable
accident; all they have to do is deny that they were negligent. Still, courts will invoke
this defence on occasion. It is not easy to escape liability by relying on inevitable

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accident.
Some important cases important in this defence are:
(1)
(2)
(3)
(4)
(5)

Assam State Coop., etc. Federation Ltd. V. Smt. Anubha Sinha

Shridhar Tiwari v. U.P. State Road Transport Corporation
Stanley v. Powell
Holmes v. Mather
Padmavati v. Dugganaika

ACT OF GOD
Vis Major is derived from the Latin words vis major : vis (force) + major (greater)
i.e. an overwhelming force of nature having unavoidable consequences that
under certain circumstances can exempt one from the obligations of a contract. The
term Vis Major is a superior force. In law it signifies inevitable accident. This term is
used in the civil law in nearly the same way that the words Act of God is used in the

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common law. Generally, no one is responsible for an accident which arises from vis
major. Act of God can be understood as a natural catastrophe which no one can
prevent such as an earthquake, a tidal wave, a volcanic eruption, or a tornado. Acts of
God are significant for two reasons:
1) For the havoc and damage they wreak and
2) Because often contracts state that "acts of God" are an excuse for delay or failure to
fulfil a commitment or cause damage to a party for which another might be held
liable.
Act of God as defined by Winfield and Jolowicz:
Where an act is caused (harmful to a party) directly by natural causes without human
intervention in circumstances which no human foresight can provide for and against
and of which human prudence is not bound to recognize the possibility, the Act of
God as defence can be applied.
The Act of God was recognized by Blackburn J. in Rylands v. Fletcher.
The facts of the case were that B, a mill owner, employed independent competent
contractors to construct a reservoir to provide water for his mill. In the course of
work, the contractors came across some old shafts and passages on Bs land.
They communicate with the mines of A, a neighbour of B, although no one suspected
this for the shafts were appeared to be filled with earth. The contractors did not block
them up, and when the reservoir was filled, the water from it burst through the old
shafts and flooded As mines.
Here, Blackburn J. ruled that the defendant can excuse himself by showing that the
escape was owing to the plaintiffs default or perhaps the escape was the consequence
of vis major or the Act of God.
Other important cases are:
(1) Ramalinga Nadar v. Narayan Reddiar
(2) Nicholas v. Marsland
(3) Kallulal v. Hemchand

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PRIVATE DEFENCE
Every person has the right to protect himself and his property and for this purpose, he
can use the necessary force. Thus, if a person uses the necessary force to protect
himself or his property and causes harm to another person, no action can be brought
against him.
There are two conditions for the use of force in self-defence. First, the use of force for
self-defence will be justified only when there is an imminent threat to a person or his

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property. Secondly, the use of force must be in proportion to what is necessary in the
particular circumstances. In other words, the use of force should not be more than the
anticipated

harm.

For example, if a person strikes me, I cannot be justified to use a sword or a gun
against him in self-defence. The force should not be excessive. What force can be
used in the particular circumstances, to protect himself or his property, is a difficult
question to decide. However this depends on the facts and circumstances of each case.
Consider this dispute between two people. When the defendant was passing in front of
the plaintiffs house he aimed to shoot the plaintiffs dog that attempted to bite him.
The dog ran away. But when the dog returned, the defendant shot the plaintiffs dog
dead. It was held that the right of private defence could not be pleaded in this case.
The act was unlawful because he shot at the dog at the time what it was not attacking
and the force used was excessive and therefore he was liable to pay compensation.
The Texans for Public Justice (TPJ) was always in the forefront campaigning for
comprehensive reforms in the civil laws in Texas. Dubious interpretations of the tort
laws governing private defence has been a cause for concern because many innocent
people were hauled to courts over minor issues. The earnest efforts of the TPJ have
saved many people who would have been otherwise held responsible for acts not done
by them.
Some important cases in this defence are:
(1)
(2)
(3)
(4)

Bird v. Holbrook
Ramanuja Mudali v. M.Gangan
Collins v. Renison
Creswell v. Sirl

MISTAKE
Where the defendant acts under a mistaken belief of the circumstances they may be
afforded the defence of mistake. Where a defendant acts under such a mistake, the
mistake prevents them forming the mens rea of the crime and thus mistake is not
really a defence as such, but relates to the absence of the elements of establishing
liability. The defence of mistake was first recognised in R v Tolson (1889) 23 QBD
168 but has developed since then. Often the defence of mistake is complicated by
being combined with other defences such as intoxication or self-defence (or both).

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Initially a defence would be allowed if the mistake was both honest and reasonably
held:
A mistake as to law will not generally suffice, for the defence of mistake, since
ignorance of the law is no excuse (Ignorantia juris non excusat)
Although a mistake of civil law may be sufficient to find the defence of mistake:
A mistake of fact will suffice provided the mistake was such as to prevent the
defendant forming the mens rea of the offence. Whilst initially the mistake was
required to be both honest and reasonably held, in DPP v Morgan the House of Lords
held that the mistake need only be honest.
There was no requirement that it was a reasonable mistake for the defendant to make.
The defence of mistake in relation to public/private defence
The defence of mistake may be raised in conjunction with self-defence and prevention
of crime where for example the defendant mistakenly believed he was under attack or
using reasonable force in the prevention of crime. The same principle applies that the
mistake must be honest, but need not be reasonably held.
Implications where the mistake is induced by intoxication
Where the mistake is induced by voluntary intoxication, and the crime is one of basic
intent, the defendant is not allowed the defence of mistake.
If, however, the crime is criminal damage and the defendant is relying on the special
defence in S.5(2) Criminal Damage Act, a mistake induced by voluntary intoxication
will not bar the application of the defence.
Some important cases under this defence are:
(1)
(2)
(3)
(4)

Jaggard v Dickinson [1981] 1 QB 527

R v Fotheringham (1989) 88 Cr App R 206
R v O'Grady [1987] QB 995
R v Hatton [2006] 1 Cr App R 16

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NECESSITY
In tort common law, the defense of necessity gives the State or an individual a
privilege to take or use the property of another. A defendant typically invokes the
defense of necessity only against the intentional torts of trespass to chattels, trespass
to land, or conversion. The Latin phrase from common law is necessitas inducit
privilegium quod jura privata, "Necessity induces a privilege because of a private
right." A court will grant this privilege to a trespasser when the risk of harm to an
individual or society is apparently and reasonably greater than the harm to the
property. Unlike the privilege of self-defense, those who are harmed by individuals

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invoking the necessity privilege are usually free from any wrongdoing. Generally, an
individual invoking this privilege is obligated to pay any actual damages caused in the
use of the property but not punitive or nominal damages.
Private necessity is the use of another's property for private reasons. Well established
doctrines in common law prevent a property owner from using force against an
individual in a situation where the privilege of necessity would apply. While an
individual may have a private necessity to use the land or property of another, that
individual must compensate the owner for any damages caused. For example:
A strong wind blows a parachuting skydiver off course from his intended landing
zone. He must land in a nearby farmer's field. The skydiver tramples on the farmer's
prized roses, and the farmer hits the skydiver on the head with a pitchfork. The
skydiver can invoke the privilege of private necessity for trespassing in the farmer's
fields but will have to pay for the damage caused to the roses. The farmer will be
liable for battery because the use of force in defense of property is not privileged
against an individual who successfully claims private necessity.
In American law, the case most often cited to explain the privilege of private necessity
is Vincent v. Lake Erie Transp. Co., 109 Minn. 456, 124 N.W. 221 (1910).
Public necessity is the use of private property by a public official for a public reason.
The potential harm to society necessitates the destruction or use of private property
for the greater good. The injured, private individual does not always recover for the
damage caused by the necessity. In American law, two conflicting cases illustrate this
point: Surocco v. Geary, 3 Cal. 69 (1853) and Wegner v. Milwaukee Mutual Ins. Co.
479 N.W.2d 38 (Minn 1991).
Some important cases are:
(1)
(2)
(3)
(4)

Leigh v. Gladstone
Cope v. Sharpe
Carter v. Thomas
Kirk v. Gregory

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STATUTORY AUTHORITY
A duty imposed by law, or an authority or permission given by law, constitutes a
defence in all three legal systems analysed herein. Article 122-4 (1) of the new French
Code pnal is crystal-clear in this respect: a person who commits an act prescribed or
authorized by legislative or regulatory provisions is not criminally liable. Statutory
duty and statutory authority are most often invoked to justify the acts of public
authorities when they interfere with a persons property or personal rights. Examples
of interferences with a persons property include compulsory purchase, nuisance to an
occupier in the public interest, and the right of a bailiff to enter the dwelling of a
debtor by force. Examples of interferences with a persons personal rights include the

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power of a police officer (provided all legal conditions are observed) to arrest a
person for whom he has a judicial warrant or who has been caught flagrante delicto.
Under certain conditions private persons may rely, by way of defence, on orders
emanating from a legitimate authority (le commandement de lautorit lgitime), or
on a statutory permission, in order to escape liability for injury caused to another
individual. Article 122-4 (2) of the new French Code pnal acquits a person from
criminal liability when he or she accomplishes an act ordered by a legitimate
authority, except if the act is manifestly illegal. In other words, the public authority
involved must be legitimate, i.e. must have the competence to act and act within that
competence, and the order itself may not be manifestly illegal or morally
inacceptable. In contrast, English law does not recognize a general defence of
obedience to orders, whether given by an administrative authority, or by a private
person having authority (such as an employer): if a person orders another to commit a
tort, they are both answerable as joint tortfeasors. In German law, the issue has most
often arisen with regard to soldiers and enforcement officers carrying out orders.
Whilst following an order or instruction does normally relieve them from liability,
they may not obey an order if this would lead them to commit a crime or infringe
human dignity. More generally, where someone acts under orders, or in compliance
with statutory obligations, it would be wrong for him or her to adhere to a legal rule
where that would be in contradiction with a fundamental rule or interest. The
judgment of the BGH of 24 June 1953 reproduced below provides an illustration with
regard to the denunciation to the Gestapo of a person who had made unpatriotic
statements.
Some important cases under this defence are:
(1) Vaughan v. Taff Valde Rail Co.
(2) Hammer Smith Rail co. Brand
(3) Smith v. London and South Western Railway Co.

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BIBLIOGRAPHY
(1) Law of Torts by Dr. R.K. Bangia
(2) Law of Torts by Ratanlal and Dhirajlal
(3) www.wikipedia.com