Written by Ritik Jaiswal

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 Before proceeding ahead, it is necessary to evaluate the situation in which the defence can be used in any tort case. It is, therefore, necessary to understand the word ‘defence’. What it actually means? In a legal sense, the word ‘defence’ is used to refer to those arguments which when used persuade the court to conclude that the defendant is not guilty.

While talking about General defences in tort, it is a set of ‘defences’ or ‘excuse’ that you can undertake to escape liability in tort only if your actions have a qualified set of conditions that go with these defences, when the plaintiff brings an action against the defendant for a tort, providing the existence of all the conditions of the tort that the defendant will be liable for the same. The defendant may also in such a condition avoid the liability by taking a plea of defence. They are the rules of immunity that limit the rules of liability in tort.


Now we should see some of the recognised defences to any tort. Defences are been stated below:-

  1. Volenti non fit Injuria or Defence of Consent
  2. When plaintiff is the wrongdoer
  3. Private defence
  4. Act of God
  5. Inevitable accident
  6. Necessity
  7. Statutory Authority

Defences discussed in detail are as follows:-

1. Volenti non fit injuria or Consent

 If a plaintiff has consented to a wrongful act with free consent, under no pressure of fraud or coercion with voluntary acceptance of risk, then he has no right to sue the defendant in which both consented.

Consent occurs when the plaintiff displays willingness in the defendant’s conduct. Therefore, no man can enforce a right for which he has voluntarily waived or abandoned.
For example:- The person bought a ticket to watch a match and itself he agreed or consented to suffer any harm or damage which may be caused while watching a match and therefore he cannot sue the stadium authorities for the cause or liability been arises out of the incident.

In Padmavati v. Dugganaika;

The driver of the jeep took the jeep to fill with petrol in it. Two strangers took a lift in the jeep. The jeep got toppled due to a problem with their right wheel, and the two strangers who took the lift were thrown out of the jeep causing injury to them and the death of one person.
The court concluded that the master could not be held liable as it was the case of sheer accident and the strangers voluntarily got into the jeep. The maxim volenti fit non injuria was not applicable here.

2. When plaintiff is the wrongdoer

The law excuses the defendant when the act done by plaintiff itself was illegal or wrong. This defence arise from the maxim “ex turpi causa non oritur action” which means no action arises from an immoral cause. So an unlawful act of  plaintiff might lead to a valid defence.
If the defendant states that the claimant himself is the wrongdoer and is not entitled for the damages, then it does not mean that the court will leave him free from the liability but he will not be liable under this head.

In case Bird v. Holbrook;

The plaintiff was entitled to recover damages suffered by him due to the sprint guns been set by him in his garden without any notice for the same.

3. Private defence

 Among the general defence, private defence is the most common. Private defence refers to the defence where a defendant tries to protect his body or property or any other’s property and harms another person with a reasonable force under an imminent danger, where there is no time to report the authority, it is therefore private defence.
The law has given permission to protect their life or property and for that, it has allowed the use reasonable force to protect himself or property.
For example:-

 If A tried to commit robbery in B’s house, and B just took out his knife and chopped A’s head, them this act of A would not be justified and the defence of private defence by B cannot be pleaded.
Hence, for the protection of the property, the law has allowed taking only such measures which are necessary to prevent the danger.

4. Act of God

An Act of God is an defence used in cases, when an event over which there is no control of human upon the act and the damage is caused by the forces of nature. . It is beyond human imagination and cannot be prevented by human intervention.

Some of the essentials of Act of God  are:-

  • The act should result from a natural force.
  • Extraordinary in nature.
  • No human intervention

Black’s law dictionary defined an act of god as “ An act occasioned exclusively by violence of nature without any human intervention”.

In case of  Nichols v. Marshland;

The defendant has number of artificial lakes on his land. Once there was an extraordinary rainfall, heaviest in human memory. It caused the bank of  lakes  to burst and the escaping water carried away four bridges which belonged to the plaintiff. It was therefore, held that plaintiff’s bridges were swept by an act of god and the defendant would not held liable for thr same.

5. Inevitable Accident

An inevitable accident id a mishap. Its occurrence cannot be prevented despite taking degree of care and attention by an ordinary and intelligent individual. It is therefore, a good defence if the defendant is capable of proving that he neither intended to injure plaintiff nor could he avoid the injury by taking reasonable care. There is no inevitable accident unless the defendant can prove that something happened over which he had no control and the effect could not have avoided.

In case Brown v. Kendall;

The dogs of the plaintiff and defendant were fighting with each other. The defendant intervening in between to separate them, doing so he accidentally hit the plaintiff in the eyes causing him some serious injuries. So the court held that, defendant is not liable as the injuries suffered by the plaintiff is an incident which could not have been prevented and was an inevitable accident.

6. Necessity

If an act is done to prevent greater harm, even if the act was done intentionally is not actionable and serves as a good defence. It gives a person or a state a privilege to use or take the property of another.

It is well explained in maxim “Solus Populi Suprema Lex” i.e. the welfare of the people is the supreme law. Hence,  the act which causes certain damage is been excuse when done for the great of the people or to avoid harm.

In Carter v. Thomas ;

The defendant who entered the plaintiff premises in good faith to extinguish a fire  at which a fireman had already been working, was held liable for trespass.

7. Statutory Authority

If an act is sanctioned by an Statutory enactment or law passes by legislature then the defendant  could not be held liable for the damages resulting in the course of an act.
The powers been given by the legislature should be exercised with caution so that no unnecessary damage is done and the person must do an act in good faith and should not exceed the powers been granted by legislature.

Also Read: Water (Prevention and Control of Pollution) Act, 1974

In case Hammer Smith Rail co. v. Brand;

 The vale of the property of plaintiff is been depreciated due to loud noise and vibrations been produced while the train passes from the railway line which was been made under statutory provisions. The court held that nothing can be claimed for the damage been suffered as it was done as per the statutory provisions. The defendant was held not liable in the case.


As above discussed, general defences play an important role in avoiding one’s liability. They are the set of ‘excuses’ that helps in escaping from the liability. In order to escape from the liability it is important for the defendant  to get known of all the facts or points against which the plaintiff had bought action and understand all the essentials for which the defendant would be held liable and then plead a defence accordingly after knowing it. It is important to understand it and then apply.

Also Read: Features of consumer protection Act, 1986: Key Highlights



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