I.

Meaning, Nature, Essentials of Tort

The word tort is of French origin and is equivalent of the English word wrong. It is
derived from the Latin word tortum, which means twisted or crooked. It implies conduct that
is twisted or crooked. Tort is commonly used to mean a breach of duty amounting to a
civil wrong.
Salmond defines tort as 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.
Winfield, “Tortious liability arises from a breach of duty primarily fixed by law. This duty is
towards persons generally and its breach is redressed by an action for unliquidated damages.”
Sec 2(m), the Limitation Act, 1963: Tort means a civil wrong which is not exclusively a
breach of contract or breach of trust.
A tort arises due to a person’s duty to others which is created by one law or the other.
A person who commits a tort is known as a tortfeasor, or a wrongdoer. Where they are more
than one, they are called joint tortfeasor. Their wrongdoing is called tortuous act and they
are liable to be sued jointly and severally. The principle aim of the law of torts is
compensation for victims or their dependants. Grants of exemplary damages in certain cases
will show that deterrence of wrong doers is also another aim of the law of tort.
We may define tort under following heads:
1. Civil Wrong: Tort belongs to the category of civil wrong other than criminal wrong.
In case of civil wrong, the injured party i.e. the plaintiff institutes civil proceedings
against the wrong doer i.e. defendant for violation of his personal rights. The main
remedy is damages. Plaintiff will be compensated by the defendant for the injury
caused to him by the defendant. In crime, criminal proceedings are instituted against
accused by the state and will be awarded punishment.
2. Tort is other than mere breach of contract or breach of trust: Tort is that civil wrong
which is not exclusively any other kind of civil wrong. It is by the process of
elimination that we may be able to know whether the wrong is civil or criminal; now
if it is a civil wrong, it has to be further seen that whether it belongs to another
category of civil wrongs such as breach of contract or breach of trust. If it is found
that it is neither breach of contract or breach of trust, it is definitely a tort.
3. Unliquidated damages: Damages is the most important remedy for tort and such
damages are unliquidated. It is this fact which distinguishes tort from other civil
wrongs. When the damages have been pre-determined of already fixed for violation of
certain rights, such damages are liquidated damages, such as in the case of breach of
contract or trust. But when the damages cannot be pre-determined or estimated such
damages are unliquidated. There is no possibility of any pre-determination by the
parties in case of tort. Such damages are determined by the court on its own discretion
after assessing the loss of plaintiff.
Objectives of Law of Torts
1 to determine the rights between parties to dispute
2 to protect certain rights recognized by law
3 to prevent the continuation or repetition of a harm
4 to restore the property to its rightful owner
Evolution of Law of Torts in India
The law of torts in India is mainly the English law of torts which is based on the
principles of the ‘common law’. This was made suitable to the Indian conditions in
accordance with the principles of justice, equity and good conscience. However, the
application of tort laws in India is not a very regular event and one can even go to the extent
of commenting that tort as a law in India is far from being looked upon as a major branch of
law and litigation. In the Indian legal system, the concept of ‘punishment’ occupies a more
prominent place than ‘compensation’ for wrongs. It has been argued that the development of
law of tort in India need not be on the same lines as in England.
In M.C. Mehta v. Union of India, Justice Bhagwati said, “we have to evolve new
principles and lay down new norms which will adequately deal with new problems which
arise in a highly industrialized economy. We cannot allow our judicial thinking to be
constructed by reference to the law as it prevails in England or for the matter of that in any
foreign country. We are certainly prepared to receive light from whatever source it comes but
we have to build our own jurisprudence.”
Constituents/Essentials of Tort
The law of tort is an instrument to enforce reasonable behavior and respect the rights
and interests of one another. A protected interest gives rise to a legal right, which in turn
gives rise to a corresponding legal duty. An act, which infringes a legal right, is wrongful act
but not every wrongful act is a tort.
To constitute a tort or civil injury:
1. There must be a wrongful act or omission.
2. The wrongful act or omission must give rise to legal damage or actual damage.
The wrongful act or omission may however not necessarily cause actual damage to the
plaintiff in order to be actionable. Certain civil wrongs are actionable even though no damage
may have been suffered by the plaintiff.
Wrongful Act/Omission
In order to make a person liable for tort, he must have done some act which he was
not expected to do, or he must have omitted to do something which he was supposed to do.
An act that prejudicially affects one’s legal right, such legally violative wrongful act is called
as actus reus. Thus, liability for a tort arises when the wrongful act amounts to either an
infringement of a legal private right or a breach. An act, which at first, appears to be innocent
may become tortuous if it invades the legal right of another person e.g. the erection in one’s
own land which obstructs light to a neighbours’ house. Liability for a tort arises when the
wrongful act amounts to an infringement of a legal right or a breach. For instance, forcibly
entering someone’s house, injuring reputation of others are actus reus or wrongful acts.
Similarly, when there is a legal duty to do some act and a person fails to perform that
duty, he can be made liable for such omission. E.g. a municipality fails to maintain a park,
fails to put fencing around park etc. Failure to do something in doing an act is a bad way of
performing the act. Where as an omission is failure to do an act as a whole. Generally, the
law does not impose liability for mere omissions. An omission incurs liability when there is a
duty to act. For example, a person cannot be held responsible for the omission of not rescuing
a stranger child whom he sees drowning even though he can rescue him without any
appreciable exertion or risk of harm to himself. But the result would be different if a parent or
guardian is failed to attempt to rescue the child. In that case, it would be an omission as there
is a duty to act.
Legal Damage
The sum of money awarded by court to compensate damage is called damages.
Damage means the loss or harm caused or presumed to be suffered by a person as a result of
some wrongful act of another. Legal damage is not the same as actual damage. The real
significance of legal damage is illustrated by two maxims namely: Injuria sine
damno and Damnum sine injuria
Injuria sine damno (Injury without damage)
It means violation of a legal right without causing any harm, loss or damage to the
plaintiff. There are two kinds of torts: firstly those torts which are actionable per se, i.e.
actionable without the proof of any damage or loss. For instance, trespass to land, is
actionable even though no damage has been caused as a result of the trespass. Secondly, the
torts which are actionable only on the proof of some damage caused by an act. For successful
actions the only thing which has to be proved is that the plaintiff’s legal right has been
violated, i.e. there is injuria.
Leading cases for injuria sine damnum-
1. Ashby v. White- Plaintiff was confined by returning officer due to which plaintiff
was not able to cast his vote. Though the party in the election won the election but
there was violation of the legal right of the person, so here compensation was granted.
2. Bhim singh v. State of Jammu and Kashmir- In this case the petitioner was an
MLA of Jammu Kashmir assembly who was wrongfully detained by the police while
he was going to attend the assembly session. He was not produced before the
Magistrate before the requisite period. As a consequence of this, the member was
deprived of his constitutional rights. There was also the violation of the fundamental
rights to personal liberty guaranteed under article 21 of the Indian Constitution. In this
case the court ordered to pay exemplary damages of Rs 50,000 to the petitioner.
Damnum sine injuria (Damage without injury)
It means “There may be an injury inflicted without any act of injustice.” There is another
term like it that is “damnum sine injuria“, which means damage or harm without an injury
in the legal sense. In other words a loss or injury to someone which does not give that person
a right to sue the person causing the loss.
Case laws for damnum sine injuria-
Glaucester Grammar School Case– In this case, the defendant set up a rival school neae the
plaintiff’s school, due to which the plaintiff suffered loss as his student started joining the
defendant’s school. Due to this competition, the plaintiff has to lower down his fees. So
plaintiff sued the defendant to seek compensation but no compensation was given as there
was no violation of his legal rights.
Mayor and Bradford Corporation v Pickles- Defendant dug a well on his own land
adjoining to the corporation. Digging well near to corporation reduced the water supply to the
Corporation’s well and caused loss to it. The plaintiff corporation sued defendant for the
same. There was no infringement of legal rights was involved, inspite of physical loss,
therefore, no compensation was awarded.
Legal Remedy – Development of Ubi jus ibi Remedium
The law of torts is said to be a development of the maxim “ubi jus ibi remedium”,
which roughly means that “for every wrong, the law provides a remedy”. Whenever the
common law gives a right or prohibits an injury, it also gives a remedy. It is an elementary
maxim of equity jurisprudence that there is no wrong without a remedy. But, it does not mean
that there is a remedy for each and every wrong. There are many moral and political wrongs
which do not have any legal remedy. Eg. There is no legal duty to feed the beggars who come
to your doorstep or to save a drowning man. The maxim intends to convey the fact that legal
wrong and legal remedy, are correlative terms. Therefore, it can be said that, the correct
principle is that wherever a man has a right, the law should provide a remedy
A tort is a civil injury, but all civil injuries are not torts. The wrongful act must come
under the category of wrongs for which the remedy of a civil action for damages is available.
The essential remedy for a tort is an action for damages (compensation), but there are other
remedies also e.g., injunction, restitution, etc.
1) Damages- The essential remedy for tort is an action for damages. Damages or legal
damages is the amount of money paid to the aggrieved party to bring them back to the position in
which they were before the tort had occurred. They are paid to a plaintiff to help them recover the loss
they have suffered. Damages are the primary remedy in a cause of action for torts. The word
“damages” should not be confused with the plural of the word “damage” which means ‘harm’ or
‘injury’.
Nominal– Nominal damages are awarded when plaintiff’s legal right is infringed, but no real
loss has been caused to him. For example, in cases of trespass, here no actual loss but
violation of right only.
Substantial-Substantial damages are said to be awarded when the plaintiff is compensated
for the exact loss suffered by him due to the tort.
Exemplary/Punitive– These are the highest in amount. Punitive damages are awarded when
the defendant has excessively been ignorant of the plaintiff’s rights and great loss has been
caused to the defendant. The objective here is to create a public example and make people
cautious of not repeating something similar.
But there are other remedies also, such as-
2) Injunction: Injunction is an equitable remedy available in torts, granted at the discretion of the
court. An equitable remedy is one in which the court, instead of compensating the aggrieved party,
asks the other party to perform his part of the promises. So, when a court asks a person to not continue
to do something, or to do something positive so as to recover the damage of the aggrieved party, the
court is granting an injunction.
3) Specific restitution of a property: The third judicial remedy available in the Law of Torts is
that of Specific Restitution of Property. Restitution means the restoration of goods back to the owner
of the goods. When a person is wrongfully dispossessed of his property or goods, he is entitled to the
restoration of his property.
4) In cases of dispossession of land, the plaintiff can also claim recovery of his land.
But, primarily, it is the right to damages that brings certain wrongful acts under the ambit of
law of torts.
II. Nature of Tort
We can determine the nature of tort by distinguishing it from other branches of law.
Tort & Contract
 1. A distinct difference between contract and tort laws lies in the issue of consent. In
contract law, both parties must enter an agreement knowingly and without coercion.
Each party must consent to the contract and its outcomes. In tort law, the interaction
between the parties is not based on consent. Usually, torts occur by the intrusion of
one party to another that results in some type of harm.
2. In a contract, the parties fix the duties themselves whereas in torts, the law fixes the
duty.
3. A contract stipulates that only the parties to the contract can sue and be sued on it
(privity of contract) while in tort, privity is not needed in order to sue or be sued.
4. In the case of contract, the duty is owed to a definite person(s) while in tort, the duty
is owed to the community at large i.e. duty in- rem.
5. Sometimes motive is taken into consideration in tort, but it is immaterial in a breach
of contract.
6. In contract remedy may be in the form of liquidated or unliquidated damages
whereas in tort, remedies are always unliquidated.
Tort & Crime
1. In tort, the action is brought in the court by the injured party to obtain compensation
whereas in crime, proceedings are conducted by the state.
2. The aim of litigation in torts is to compensate the injured party while in crime; the
offender is punished by the state in the interest of the society.
3. A tort is an infringement of the civil rights belonging to individuals while a crime is
a breach of public rights and duties, which affect the whole community.
4. Parties involved in criminal cases are the Prosecution verses the Accused person
while in torts, the parties are the Plaintiff versus the Defendant.
Tort and Quasi-Contract
Quasi contract cover those situations where a person is held liable to another without
any agreement, for money or benefit received by him to which the other person is better
entitled. The word ‘Quasi’ means pseudo. Hence, a Quasi contract is a pseudo-contract.
When we talk about a valid contact we expect it to have certain elements like offer and
acceptance, consideration, the capacity to contract, and free will. But there are other types
of contracts as well. There are cases where the law implies a promise and imposes
obligations on one party while conferring rights to the other even when the basic elements
of a contract are not present. These promises are not legal contracts, but the Court
recognizes them as relations resembling a contract and enforces them like a contract.
Let’s look at an example of a Quasi contract: Peter and Oliver enter a contract under
which Peter agrees to deliver a basket of fruits at Oliver’s residence and Oliver promises
to pay Rs 1,500 after consuming all the fruits. However, Peter erroneously delivers a
basket of fruits at John’s residence instead of Oliver’s. When John gets home he assumes
that the fruit basket is a birthday gift and consumes them.
Although there is no contract between Peter and John, the Court treats this as a Quasi-
contract and orders John to either return the basket of fruits or pay Peter.
Tort law                      Quasi –contract
1. Damages are not fixed in the tort law 1. Damages to the quasi-contractual
 i.e., also known as unliquidated obligation are fixed and specified by
damages. the court itself.
2. Duty is towards a definite person from
2. Duty is imposed toward all people
whom the person has enriched
generally and not to a definite person.
wrongful benefits.
III. General Principles of Liability/Foundations of Tortious Liability
Tortious liability arises from the breach of a duty primarily fixed by the law: such
duty is towards persons generally and its breach is compensated by an action for unliquidated
damages.
• Theory 1: By Winfield – Law of Tort – General Liability: all injuries done to another
person are torts, unless there be some justification recognized by the law
• Theory 2: By Salmond – Pigeon Hole Theory – Law of Torts: there is a definite number
of torts (assault, battery, defamation) outside which liability in tort does not exist
The first theory was propounded by Professor Winfield. According to this, if I injure
my neighbour, he can sue me in tort, whether the wrong happens to have a particular name
like assault, battery, deceit or slander, and I will be liable if I cannot prove lawful
justification. This leads to the wider principle that all unjustifiable harms are tortious. This
enables the courts to create new torts and make defendants liable irrespective of any defect in
the pleading of the plaintiff. This theory resembles the saying, my duty is to hurt nobody by
word or deed. This theory is supported by Pollock and courts have repeatedly extended the
domain of the law of torts. For example, negligence became a new specific tort only by the
19th century AD. Similarly the rule of strict liability for the escape of noxious things from
one’s premises was laid down in 1868 in the leading case of Rylands v. Fletcher.
The second theory was proposed by Salmond. It resembles the Ten Commandments given to
Moses in the bible. According to this theory, I can injure my neighbour as much as I like
without fear of his suing me in tort provided my conduct does not fall under the rubric of
assault, deceit, slander or any other nominate tort. The law of tort consists of a neat set of
pigeon holes, each containing a labeled tort. If the defendant’s wrong does not fit any of these
pigeon holes he has not committed any tort.
The advocates of the first theory argue that decisions such as Donoghue v. Stevenson shows
that the law of tort is steadily expanding and that the idea of its being cribbed, cabined and
confined in a set of pigeon holes in untenable. However Salmond argues in favour of his
theory that just as criminal law consists of a body of rules establishing specific offences, so
the law of torts consists of a body of rules establishing specific injuries. Neither in the one
case nor in the other is there any general principle of liability. Whether I am prosecuted for an
alleged offence or sued for an alleged tort it is for my adversary to prove that the case falls
within some specific and established rule of liability and not fro for me to defend myself by
proving that it is within some specific and established rule of justification or excuse. For
salmond the law must be called The Law of Torts rather that The Law of Tort.
There is, however, no recognition of either theory. It would seem more realistic to
approach the tortious liability from a middle ground. In an Indian decision, Lala Punnalal v.
Kasthurichand Ramaji, it was pointed out that there is nothing like an exhaustive
classification of torts beyond which courts should not proceed, that new invasion of rights
devised by human ingenuity might give rise to new classes of torts. On the whole if we are
asked to express our preference between the two theories, in the light of recent decisions of
competent courts we will have to choose the first theory of liability that the subsequent one.
Thus it is a matter of interpretation of courts so as to select between the two theories. The law
of torts has in the main been developed by courts proceeding from the simple problems of
primitive society to those of our present complex civilization.
General Defences
General defences are a set of defences or ‘excuses’ that defendant can undertake to
escape liability in tort only if his actions have qualified a specific set of conditions. 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 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 defences of privilege, fair comment or justification are available.
There are some general defences which may be taken against the action for a 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.
The General Defences are as follows:
VOLENTI NON FIT INJURIA OR THE DEFENCE OF ‘CONSENT’
When a person consents to the infliction of some harm upon himself, he has no
remedy for that in tort. In case, the plaintiff voluntarily agrees to suffer some harm, he is not
allowed to complain of that and his consent serves as a good defence against him. No man
can enforce a right which he has voluntarily waived or abandoned. When you invite
somebody to your house, you cannot sue him for trespass, nor can you sue the surgeon after
submitting to a surgical operation because you have expressly consented to these activities.
Similarly, no action for defamation can be brought by a person who agrees to the publication
of matter defamatory of himself. Many a time, the consent may be implied or inferred from
the conduct of the parties. For example, a player in the games of cricket or football is deemed
to be agreeing to any hurt which may be likely in the normal course of the game. Similarly, a
person going on a highway is presumed to consent to the risk of pure accidents.
Many a time, the consent may be implied or inferred from the conduct of the parties
as in the case of Hall v. Brooklands Auto Racing Club (1932), the plaintiff was a spectator
at a motor car race being held at Brooklands on a track owned by the defendant company.
During the race, there was a collision between two cars, one of which was thrown among the
spectators, thereby injuring the plaintiff. It was held that the plaintiff impliedly took the risk
of such injury, the danger is inherent in the sport which any spectator could foresee, the
defendant was not liable.
In the case of Padmavati vs. Dugganaika, 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 volenti non fit injuria is applicable in this case.
Essentials of Volenti Non-Fit Injuria
1. The Risk must be known to the Plaintiff: When the plaintiff has the knowledge that
the act is going to cause harm or loss and in spite of that accepts to do it, agreeing to
suffer the injury, then the defendant will not be liable for such an act. But only having
the knowledge about such a risk is not enough for the application of this maxim.
However, having knowledge of such a risk is not enough for the application of this
defence, the principle of volenti non-fit injuria is recognised, which means that mere
knowledge only constitutes a partial defence and does not amount to consenting to the
risk.
2. The Plaintiff knowingly agreed to suffer: For the defence to be inapplicable it must
be shown that the plaintiff has readily agreed to suffer the said risk.
If only first of these points is present i.e., there is only the knowledge of the risk, it is
no defence. Merely because the plaintiff knows of the harm does not imply that he
assents to suffer it. In Smith v. Baker the plaintiff was a workman employed by the
defendants on working a drill for the purpose of cutting a rock. With the help of a
crane, stones were being conveyed from one side to the other, and each time when the
stones were conveyed, the crane passed from over the plaintiff’s head. While he was
busy in his work, a stone fell from the crane and injured him. The employees were
negligent in not warning him at the moment of a recurring danger, although the
plaintiff had been generally aware of the risk. It was held by the House of Lords that
as there was mere knowledge of risk without the assumption of it, the maxim volenti
non fit injuria did not apply and the defendants were liable
3. The consent must be free: Similar to contractual agreements, consent given under
this should also be free, i.e. given without any sort of external or internal compulsion.
For the availability of the defence for the defendant, it must be shown that the consent
was given freely. If the acquired consent is under any kind of compulsion, the
defendant cannot claim the defence of volenti nonfit injuria.
In the case of Lakshmi Ranjan v. Malar Hospital Ltd., a 40-year-old woman,
noticed the development of a painful lump in her breast; however, it had no effect on her
uterus but during the surgery, her uterus was removed without providing due justification.
The court held that the hospital was liable for deficiency in service and that the patient's
consent for the operation did not extend as her consent for the removal of her uterus. In the
case where a person is incapable of giving his consent by reason of comatose, insanity or
minority, then the consent can be taken by the parents or guardians and are sufficient to be
concluded as valid.
(a). Consent obtained by Fraud:
In order for the defence of the maxim to be applicable, the consent must be free and it should
not be acquired by any fraudulent means. In the case of R. v. Williams, the defendant was a
singing coach had convinced his student to have sexual intercourse with him, stating that it
would improve her voice and singing capabilities. Here, the defendant was held liable by the
court as the student's consent was obtained by fraudulent methods.
(b). No consent for illegal acts:
No consent can legalize an act which is prohibited by the law, and the defence of volenti
nonfit injuria will not be applicable. It has been observed that no person can give another
person consent for committing a crime.
Limitations/Exceptions of the principle
In the following conditions, this defence cannot be taken even if the plaintiff has consented -
1. Rescue Cases - When the plaintiff suffers injury while saving someone, the defence
would not apply. 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 sues 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. When a plaintiff voluntarily encounters a risk to rescue somebody from an
imminent danger created by the wrongful act of the defendant, he can’t use the defence of
Volenti Non Fit Injuria.
Haynes V. Harwood
Defendant’s servant left two horses unattended in street. A boy thrown a stone
towards the horse and horse bolted and started running here and there. This created danger to
women and children in the street. A policeman saw all this and dived into the scene to
prevent the danger. Though he succeeded but was severely injured in doing so. Defendant
was held liable, even when defendant pleaded that he was just a policeman and was doing his
duty.
Wagner V. International Railways
Railway passenger was thrown out of a running train by a sudden lurch. When the train
stopped, rescuer got down to find his cousin’s body. Due to darkness he also got injured. He
brought an action against the railway company. It was held that it being a rescue case, the
railway company was liable. Cardozo, J. Said: “Dangers invite rescue. The cry of distress is
the summons to the relief. The law does not ignore those reactions in tracing conduct to its
consequences. It recognises them as normal. The wrong that imperils life is a wrong to the
imperilled victim: it is a wrong also to the rescuer. The risk of rescue if only it is not wanton,
is born of the occasion. The emergency begets the man. The wrongdoer may not have
foreseen the coming of a deliverer. He is accountable as if he had.”
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, tries to escape itself of all
liability for damage to clothes, a person can claim compensation because the contract is
unfair to the consumers. It limits the rights of a person to restrict or exclude his liability
resulting from his negligence by a contract term or by notice. When the defendant by his
negligence has created a danger to the safety of A and he can foresee that B will likely to
rescue A out of that danger. Defendant is liable to both A and B.
The Unfair Contract Terms Act 1977 is an Act of Parliament of the United
Kingdom which regulates contracts by restricting the operation and legality of some contract
terms. It extends to nearly all forms of contract and one of its most important functions is
limiting the applicability of disclaimers of liability. The terms extend to both actual contract
terms and notices that are seen to constitute a contractual obligation. The Act renders terms
excluding or limiting liability ineffective or subject to reasonableness, depending on the
nature of the obligation purported to be excluded and whether the party purporting to exclude
or limit business liability, acting against a consumer.
3. Acts done negligently:
The defence does not extend to acts done negligently. For example, an expressed consent
given to a doctor to perform a surgery, if the doctor performs the surgery with negligence
after obtaining the consent, he can be held liable and cannot claim the defence of volenti
non fit injuria. In the case of Slater v. Clay Cros Co, the plaintiff was hit by a train in the
tunnel, the railway company had given instructions to the drivers of its trains that they
have to blow the whistle at the entrance of the tunnel that they enter and also slow down
their speed, the driver, however, did not follow these instructions given by the company
and as a result, the plaintiff who walked into the tunnel was injured. The defendant
company tried to take defence under volenti non fit injuria but the Court held that this
defence could not be applied because even though the plaintiff took the risk of walking
inside the tunnel, the risk was enhanced by the negligence of the driver.
4. No unlawful act can be legalized by consent, hence for any illegal act, the defence
will not be available.
 PLAINTIFF THE WRONGDOER
The law excuses 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 oritur 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 to contract, restitution, property, and trusts. Where the maxim is successfully applied
it acts as a complete bar on recovery. It is often referred to as the illegality defence,
although it extends beyond illegal conduct to immoral conduct. In Bird v Holbrook
(1828). The plaintiff, being a trespasser over the defendant’s land was not entitled to
claim compensation for injury caused by a spring gun use by the defendant, without
notice, in his garden.
 Let us consider a situation in which a bridge, under the control of the defendant, given
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 plaintiff’s wrongful act is the determining cause of
the accident.
In above illustration, two situations can arise. First in which plaintiff is the wrongdoer,
Second in which defendant is the wrongdoer. If the plaintiff is the wrongdoer his action will
fail and on other hands if the defendant is the wrongdoer his act wrongful act is the
determining cause of the accident no of the plaintiff, the defendant will be liable for example
in the above illustration if the bridge has been so ill-maintained that it would have given way
even if the truck had been properly loaded, the plaintiffs action will succeed. Thus, if the
plaintiff’s being a wrongdoer is an act quite independent of the harm caused to him, the
defender cannot plead that the plaintiff himself is a wrongdoer.
 INEVITABLE ACCIDENT 
Accident means an unexpected injury and if the same could not have been foreseen
and avoided, in spite of reasonable care on the part of the defender, it is the inevitable
accident. It is, therefore, a good defence if the defended can show that he neither intended to
injure the plaintiff nor could he avoid the injury by taking reasonable care. In Stanley v
Powell (1891) the plaintiff was employed to carry cartridge for a shooting party when they
had gone pheasant-shooting. A member of the party fired at a distance but the bullet, after
hitting a tree, rebounded into the plaintiff’s eye. When the plaintiff sued it was held that the
defendant was not liable in the light of the circumstance of inevitable accident.
Another case is Padmavati v. Dugganaika.....(explain along with facts)
It may be noted that the defence of the inevitable accident is available when the event
is unforeseeable and consequences unavoidable in spite of reasonable precautions. Even if the
event is like heavy rain and flood but if the same can be anticipated and guarded against and
the consequences can be avoided by reasonable precautions, the defence of inevitable
accident cannot be pleaded in such case.
 ACT OF GOD 
The act of God or Vis Major or Force Majeure may be defined as circumstances
which no human foresight can provide against any of which human prudence is not bound to
recognize the possibility, and which when they do occur, therefore are calamities that do not
involve the obligation of paying for the consequences that result from them. The act of God is
a defence used in cases of torts when an event over which the defendant has no control over
occurs and the damage is caused by the forces of nature. In such cases, the defendant will not
be liable in tort law for such inadvertent damage. The act of the God is a kind of inevitable
accident with the difference that in the case of Act of God, the resulting loss arises out of the
working of natural forces like exceptionally heavy rainfall, storms, tempest, tides and
volcanic eruptions.
Two important essentials are needed for this defence:
 There must be working of natural forces
 The occurrence must be extraordinary and not one which could be anticipated and
reasonably guarded against.
WORKING OF NATURAL FORCES
Ramalinga Nadar v. Narayana Reddiar (AIR 1971 Ker 197) the plaintiff had booked
goods with the defendant for transportation. The goods were looted by a mob, the prevention
of which was beyond the control of the defendant. It was held that every event beyond the
control of the defendant cannot be said Act of God. It was held that the destructive acts of an
unruly mob cannot be considered an Act of God. It was observed that: “Accidents may
happen by reason of the play of natural forces or by the intervention of human agency or by
both. It may be that be that in either of these cases, an accident may be inevitable. But it is
only those acts which can be traced to natural forces and which have nothing to do with the
intervention of human agency that could be saisto be acts of God.
OCCURRENCE MUST BE EXTRAORDINARY
In the case of Nichols v. Marshland (1876) the defendant has a number of artificial lakes on
his land. Unprecedented rain such as had never been witnessed in living memory caused the
banks of the lakes to burst and the escaping water carried away four bridges belonging to the
plaintiff. It was held that the plaintiff’s bridges were swept by the act of God and the
defendant was not liable.
 PRIVATE DEFENCE 
The law permits the use of reasonable force to protect one’s person or property. If the
defender uses the force which is necessary for self-defense, he will not be liable for the harm
caused thereby.
To use this defence three conditions need to be satisfied.
1. There should be an imminent threat to the personal safety or property, for example, A
would not be justified in using a force against B, merely because he thinks that B
would attack him some day, nor can the force be justified by way of retaliation after
the attack is already over.
2. The force that is used is absolutely necessary to repel the invasion. Because, plaintiff
had no other alternative available except to cause harm.
3. The force used by the defendant should be in proportion to the act committed and
enough to ward off the imminent danger It should not be excessive and must not be
out of the proportion to the apparent urgency of the occasion. For example, if A
Strikes B, B cannot justify drawing his sword and cutting off his hand.
In the case of Bird v. Holbrook (1823) deals with the defence of protection of property.
Holbrook, the defendant set up a spring-gun trap in his garden in order to catch an intruder
who had been stealing from his garden. He did not post a warning. Bird, the petitioner chased
an escaped bird into the garden and set off the trap, suffering serious damage to his knee.
Bird sued Holbrook for damages. It was held that while setting traps or “man traps” can be
valid as a deterrent when notice is also posted, D’s intent was to injure someone rather than
scare them off. Hence he was held liable.
 MISTAKE 
Mistake, whether of fact or of law, is generally no defence to an action for tort. When
a person wilfully interferes with the rights of another person, it 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 is trespass, taking
away other’s umbrella thinking that to be one’s own and injuring the reputation of another
without any intention to defame is defamation in such situations the defence of mistake
cannot be taken.
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 he auctioned them and
he paid the sale proceeds to the customer. In fact, the goods belonged to the other person. In
an action by the true owner, the auctioneer was held liable for a tort of conversion.
To this rule, there is exception when the defender may be able to avoid his liability by
showing that he acted under an honest but mistaken belief. For example, in a suit for
malicious prosecution, the defendant can prove that he acted under honest belief thinking the
plaintiff culprit in criminal case which he got registered against him.
 NECESSITY 
An act causing damage, if done under a necessity to prevent a greater evil is not
actionable even though harm was caused intentionally. Necessity should be distinguished
from the private defence. In necessity, there is an infliction of harm on an innocent person
whereas in private defence harm is caused to a plaintiff who himself is the wrongdoer.
Necessity is also different from the inevitable accident because, in necessity, the harm is an
intended one, whereas, in the inevitable accident, the harm is caused in spite of the best effort
to avoid it, throwing goods overboard a ship to lighten it for saving the ship or person on
board the ship, or pulling down a house to stop a further spread of fire is a common example
of necessity.
In Cope v. Sharpe (1891), the defendant entered the plaintiff’s land to prevent the spread of
fire to the adjoining land over which the defendant’s master had the shooting rights. Since the
defendant’s act was considered to be reasonably necessary to save the game from real and
imminent danger, it was held that the defendant was not liable for trespass.
If, however, that interference is not reasonably necessary, by the defender will be liable. In
Carter v. Thomas (1891) the defender, who entered the plaintiff’s premises in good faith to
extinguish a fire at which the fireman had already been working, was held liable for trespass
 STATUTORY AUTHORITY
When an act is done, under the authority of an Act, it is complete defence and the
injured party has no remedy except for claiming such compensation as may have been
provided by the statue, the damage resulting from an act, which the legislature authorizes or
directs to be done, is not actionable even though it would otherwise be a tort for example, if a
railway line is constructed there may be interference with private land. When the trains run,
there may also be some incidental harm due to noise, vibration, smoke, emission of sparks,
etc. No action will lie either for interference with the land or for incidental harm, except for
the payment of such compensation which the Act itself may have provided, because the
construction and the use of the railway are authorized under a statute. However, this does not
give the authorities the license to do what they want unnecessarily; they must act in a
reasonable manner. It is, for this reason, certain guidelines that need to be followed during
construction of public transport facilities.
In Smith v. London and South Western Railway Co. (1870) the servants of a Railway Co.
negligently left trimming of grass and hedges near a railway line. Sparks from an engine set
the material on fire. By a heavy wind, the fire was carried to the plaintiff’s cottage, 200 yards
away from the railway line. The cottage was burnt. Since it was a case of negligence on the
part of the Railways Co, they were held liable.