INTRODUCTION:

A tort refers to a civil wrong committed against an individual that violates their legal rights.
The term 'tort' is French in origin which means 'wrong’. This word has originated from the
Latin word 'tortus' which means to twist and implies conduct which is tortious or twisted.
Salmond : A tort is a 'civil wrong for which the remedy is a common law action for
unliquidated damages, and which is not exclusively the breach of a contract or the breach of a
trust or other merely equitable obligation.
Section 2 (m) of Limitation Act : Tort means a civil wrong which is not exclusively a breach
of contract or trust.
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
1. 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.
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 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.
2. Act of God (Vis major)
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.
3. 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 i.
Sometimes, it becomes physically unavoidable to check an accident, it is called as 'Inevitable
Accident'.
Pollock has defined it as-"the accident which is not avoidable by any such precautions as a
reasonable man, doing such an act then and there, could be expected to take."
We can also say that an inevitable accident is that accident which could not have been
prevented by the reasonable care, caution and skill.
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.
4. 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.
There are certain instances when the plaintiff does an act that aggravates the original harm
caused by the defendant in an extremely unforeseeable extent which leads to diminishing the
effect of the damage caused by the defendant.
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.
5. Private defence
Whenever there is some probability of danger, it is human instinct to save himself or his
property and in course of saving his own, he uses force also. Every person has right to defend
himself and his property or possession against an unlawful harm.
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.
The court observed here that the defendant was liable since he had exceeded the right of
private defence to his property.
6. Necessity
Sometimes, intentional injury to a person or property may be caused yet the defendant may
not be held liable if he pleads the defence of 'necessity'. The defence of 'necessity' originates
from the maxim 'Salus populi supreme lex' which says the welfare of the people is the
supreme law.
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. Actual or apparent danger to public interest
c. Protect public interest
d. 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.
In the Saltetre case, (1605), a house was pulled down which was on fire to prevent the
spread of fire to the property of others.
7. 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.
8. Mistake
To begin with, mistake of law can never be used as a defence under law of tort. When we
come to mistake of fact, one must examine the elements of whatever tort happens to be in
question.
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.
9. Novus actus interventions
The phrase ‘Novus Actus Interveniens’ is a Latin legal maxim that stands for ‘new
intervening act’.
In the Law of Delict, Neethling states that a Novus Actus Interveniens is “an independent
event which, after the wrongdoer’s act has been concluded either caused or contributed to the
consequence concerned”.
Thus, an intervening act leads to a breakage in the cause-effect relation of the act that harmed
the plaintiff. It is used as a defence by defendant to negate or reduce his liability. For
ascertaining, when can the act be termed as ‘intervening’, one has to consider two tests.
First is the test of foreseeability which refers to whether such a happening could have been
anticipated by the defendant so to know the degree of extended harm it may lead to.
Second is the test of direct damage that comes into play when one has to check if the act was
a direct result of the act that caused the injury on the first instance. If the answer for both
these tests is affirmative then the defence fails.
10. Act of third parties
If an unreasonable act is undertaken by a third-party in response to a negligent harm, that will
break the chain of causation.
In the case Haynes V. Harwood, D had left his unattended horse van on streets which amused
the children in the milieu and they started pelting stones at it, as a result of which it went
haywire and started running. A policeman intervened in the scene to stop the horse but
suffered injuries as a result who then sued D for the same. The court held that D would not be
responsible for the act of the children that lead to the harm suffered by the plaintiff as the
same act could be construed as ‘intervening’ cause.
Here the chain of causation broke when children started pelting stones on horse van and that’s
why D was not held liable.

11. Parental & quasi – parental authorities

Parents or persons in loco parentis may, for the purpose of correcting what is evil in the child,
inflict moderate and reasonable corporal punishment, however, this punishment should be
moderate and reasonable.
The old view was that this authority is only restricted to parents, but modernization of views
shows us that now teachers of students have their own independent authority to act for the
welfare of the child. This authority is not limited to offences committed by the pupil in the
school but also outside the school premises.
Illustration: If there is a rule saying that children are prohibited from smoking in the
premises of a school. A child was seen smoking in a street by a teacher and that teacher, the
next day hit the child. This punishment was seen as reasonable and therefore the teacher was
not liable as he used the punishment for the betterment of the child.10
12. Illegality

13. Judicial & quasi – judicial acts

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.