Justification from Civil liability for acts

considered otherwise wrongful under

law of torts.
Bachelor of Laws (LLB)
Subject Name – Law of Torts
Subject Code – 21LCT115
Submitted to – Dr. Rashma Bal

INTRODUCTION:
The word “tort” originates from the Latin word tortus  which means
“twisted”. It later evolved to mean wrong as it is still been used in the
French language: J’ai tort  which means “I am wrong”. In English law, the
word has a technical meaning that translates to mean a legal wrong for
which the law provides remedy. There have been numerous attempts to
define tort by various academics. Some of such definitions will be
considered.1

According to Winfield:

“Tortious liability arises from the breach of a duty primarily fixed by law; this duty is
towards persons generally and its breach is redressible by an action for unliquidated
damages.”

Tort means Civil wrong which is not basically breach of contract of breach or trust.
The basic nature of civil wrong is different from criminal wrong.

Torts may be classified into those involving intention, those involving negligence, and
the wrongs of strict liability. They may also be classified into torts affecting the
person ( e.g., trespass, negligence), the family ( wrongful death of a relative),
reputation ( libel and slander ), property (e.g., trespass to land or goods, nuisance,
conversion), economic rights and certain kinds of conduct, such as infringement of
privacy, which are not yet, but may come to be, recognised as actionable torts.

1
INTRODUCTION TO THE LAW OF TORTS - The Jet Lawyer (djetlawyer.com)
 The normal remedy for a tort is an award of
pecuniary damages in compensation for the harm done; in personal injury and death
cases, the computation of damages involves many complicated issues. In some
circumstances, e.g., nuisance, an injunction is a competent remedy. 2

General Defences :
When the plaintiff brings an action against the defendant for a particular tort,
providing the existence of all the 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 the plea of some defence. There are some specific defences, which
are peculiar to some particular wrongs, for example, in an action for defamation, the
defence of privilege, fair comment or justification are available.

There are 8 General defences that are available to the defendant :V

 Volenti non fit injuria or the defence of ‘Consent’

 The plaintiff is the wrongdoer 
 Inevitable accident
 Act of God
 Private Defence
 Mistake
 Necessity
 Statutory authority

1) Volenti non fit injuria  : Volenti non fit injuria is a legal maxim that literally
means that ‘One cannot complain of an injury for the act that he/she has
consented for’. This Defence is also known as the defence of consent. This
means that the Plaintiff himself has allowed the wrong to happen. 3 When a
person consents to the infliction of some harm upon himself, he has no
2
Quoted from “ The Oxford Companion to Law” by David Walker ( Ed. 1980 at pg. 1224)
3
General Defences in Tort Law - The Law Express
 remedy for that in tort.4 In case, the plaintiff voluntarily agrees to suffer
some harm, he is not allowed to complain for that and his consent serves
as a good defence against him. No man can enforce a right which he has
voluntarily waived or abandoned.5 Consent to suffer the harm maybe
express or implied.

There are 3 main essentials of Consent:

 It must be free consent.

 Mere Knowledge of the act doesn’t constitute consent 
Consent cannot be considered a defence when the plaintiff himself takes
a risk to rescue someone from an imminent danger.
The act should also not go beyond the limit of what has been consented.

In Hall v. Brooklands Auto Racing Club, the plaintiff was a spectator of a car race
and the track on which the race was going on belonged to the defendant. In
between the race, two cars collided and out of which one was thrown among the
people who were watching the race. The plaintiff was injured and filed a suit
against the defendant. The court held that the plaintiff expressively undertook the
risk of watching the race. It is a type of injury which could be foreknown by
anyone watching the event.  The defendant was not liable in this case.6

2) The plaintiff is the wrongdoer : 

Under the Law of Contract, one of the principles is that no court will aid a
person who found his cause of action upon an immoral or an illegal act. The
maxim is “Ex turpi causa non oritur action”. Which means, from an immoral
cause no action arises. It means that if the basis of the action of the plaintiff
is an unlawful contract, he will not, in general, succeed to his action.

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 defendant’s
wrongful act, the plaintiff was also engaged in doing something wrongful. 7

4
Under Criminal Law also, consent is a defence in certain cases. See, Ss. 87-92, I.P.C. Also see r. v. Donovan,
(1934) All E.R. Rep 207 : (1934) 2 K.B. 498.
5
Salmond, Torts, 14th ed., p.47.
6
General Defences in Tort Law - The Law Express
7
See, Pollock, Law of Torts, 15th ed. 125-128, Salmond, Torts, 14th ed., 60-61, Winfield on Tort, 7th ed., 38-39;
Street, Torts, 3rd ed., 98-103
If this defence is used the court relieves the defendant from damages in this
particular case, but this does not necessarily mean that the defendant will not be
liable under this head.

In the case of Bird v. Holbrook, the defendant installed spring guns in his garden
in order to protect the tulips growing in his garden from thieves as he had been
robbed earlier as well. Plaintiff, the trespasser came into the defendant’s garden
and was struck by the spring guns.

The Plaintiff was entitled to claim compensations from the defendant. The court
gave reason that the defendant should have posted a notice or warning outside
his garden.8

3) Inevitable accident
Inevitable accident means an unexpected injury that cannot be prevented
even with reasonable care and caution of the defendant. This type of
accident could not have been foreseeable by a reasonable man. The
defendant can also show that it was not his intention and he/ she has taken
all the necessary precautions. 

In the case of Stanley v. Powell, the defendant and the plaintiff had gone
for a shooting party. The defendant fired a shot at a distance but the bullet
glanced of a tree and injured the plaintiff. It was held that this was just an
accident which was inevitable, hence Inevitable Accident and the
defendant was held not liable

4) Act of God
Act of God is also known as Vis major or Force Majeure, This is kind of an
Inevitable accident which no human could have possibly foreseen. It
involves use of natural forces without any human intervention and could
not have been avoided by any amount of care and precaution. 

In the Case of Rylands v. Fletcher Act of God is also recognized as a Strict

Liability.

In the case of Ramalinga Nadar v. Narayana Reddiar, the plaintiff, who

was the client of the defendant had booked goods with him for
transportation. In the process of transporting, the goods were looted by a
group of mob. The plaintiff could not have prevented the loot as it was
8
General Defences in Tort Law - The Law Express
 beyond his control.
The court held that every accident that happened beyond the control of
the defendant, cannot be said to be an Act of God.

5) Private Defence :

The law permits use of reasonable force to protect one’s person or

property. If the defendant uses the force which is necessary for self-
defence, he will not be liable for the harm caused thereby. The use of
force is justified only for the purpose of defence. There should be
imminent threat to the personal safety or property, e.g., A would not
be justified in using force against B, merely because he thinks that B
would attack him some day, nor can be force be justified by way of
retaliation after the attack is already over.9

It is also necessary that such force as is absolutely necessary to

repel the invasion should be used : thus, “ if A strikes B, B cannot
justify drawing his sword and cutting off his hand.” 10

By law, every individual has the right to safeguard his life and his
property. In doing so a person can use certain amount of force, if
necessary, in the situation. There are few conditions that have to
meet in order for the defence to work. The conditions are as follows:

 There should be an imminent threat to the personal safety/ life or

property.

 The force that is used is absolutely necessary to prevent the invasion

should be used for.

 The force used by the defendant should be in proportion to the act

committed and enough to ward off the forthcoming danger. It should
not be excessive and must not be out of the proportion to the
deceptive urgency of the occasion.

In the case of Collins v. Renison, the plaintiff was on a ladder and

was nailing a board in the defendant’s garden. The defendant pushed
9
Ibid., at p. 202
10
(1876) 2 Ex. D. 1.
 the plaintiff off the ladder due to which the plaintiff was injured. The
defendant pleaded in the court that he merely pushed the ladder. The
court still held the defendant liable as the use of force was excessive
and was not required.

6) Mistake :

Mistake, weather of fact or of law, generally no defence to an action

for tort.11When a person wilfully interferes with the rights of another
person, it is no defence to say that he had honestly believed that
there was some justification for the same, when, in fact, no such
justification existed. Entering the land of another thinking that to be
one;s own is trespass,12 taking away another’s umbrella thinking of
his own.

In Consolidated Co. v. Curtis, an auctioneer was asked to auction

certain goods by his customer. Honestly believing that the goods
belonged to the customer. In fact the goods belonged to some other
person. In action by the true owner, the auctioneer was held liable for
tort of conversion.

Honest belief in the truth of a statement is a defence to an action for

deceit.13

7) Necessity :

‘Necessity knows no law’. In order to avoid or prevent a great

loss or harm, a defendant can cause lesser harm that is
justified. The act of the defendant may be not legal but if it is to
avoid major damage then he can plead this defence.

The following points should be considered:

11
Mistake of fact is a defence in Criminal law in certain casaes, see Ss. 76-79, I.P.C.,
12
Basely v. Clarkson, (1861) 3 Lev.37.
13
Derry v. Peek (1889) 14 A.C. 337.
  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. 14
For example,  performing an operation of an unconscious patient just
to save his life is justified. 

In Leigh v. Gladstone[37], 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[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.

8) 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.,15 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. 

14
General defences under law of torts - iPleaders

15
[1869] LR 4 HL 171 
 In Hammer Smith Rail Co. v. Brand,16 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

16
(1869-70) LR 5 CP 98