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General Defences In Tort Laws

Author: Aheli Ghoshal Student, Amity University, Kolkata


The word “Tort” means-

“A conduct which is not straight or lawful, but, on the other hand, twisted, crooked or unlawful.”

 In simple terms, tort can be defined as an act conducted by one person, towards another person which causes harm to the other person. This act of wrongdoing causes either injury to the other person or some type of harm.

 By injury, we mean invasion of, or violation of a legal right, and harm means causation of any loss or detriment to a person which leads to his suffering. The intensity of tort is further determined by whether the act was intentionally caused in order to inflict harm on the other person, or whether the person acted in a negligent manner which caused harm to the other person. The cases of tort in India are tried in civil courts and the relief includes damages by way of monetary compensation or an order for injunction or destitution.

 As per Winfield’s definition, the word tort is defined as-

“Tortious liability arises from the breach of duty primarily fixed by the law. Such duty is towards the person generally and it’s breach is redressible by an action for unliquidated damages.”

It must be noted here that the word damage and damages are different. The word damage means some type of harm or loss which occurred because of a legal injury. While on the other hand the word damages mean monetary compensation, which must be provided by the accused under an order of the court, if the accused has committed a tort towards the accuser.

Liquidated Damages And Unliquidated Damages

Liquidated damages are something which are predetermined, and they are a flexible and elastic amount.

While on the other hand, unliquidated damages are something which are not predetermined and are not specified either. In this case, the court determines the unliquidated damages, and the amount can vary between a certain range.

 Essentials Of Tort

  1. There must be a legal injury that is a person’s legal rights must get violated.

  2. There must be legal damage, that is the person must have suffered a particular loss or harm because of the legal injury.

  3. There must be compensation, it means that the person must get a monetary compensation for his or her legal damage.

This article portrays all the general defences, that are necessary for the “tortfeasors” or the person who had committed a tort to know, in order to save himself or herself from any legal action that can be taken by the accuser.



It means that

“No man can sue for the tort to which he had voluntarily consented, either explicitly or implicitly before. “

Thus, when we go to a stadium to watch cricket and the bowler’ ball hits us and we get injured, then we cannot sue the bowler because- the moment we have entered the stadium and bought the ticket, we have indirectly consented to whatever injury that might happen to us in the cricket field.

In order for the defendant to avail this defence there are two main conditions-

  1. That the plaintiff had the knowledge of the risk that might happen to him.

  2. Plaintiff consented to shoulder the risk voluntarily.

In Hall v. Brooklands Auto Racing Club[1],  the plaintiff went to watch a motor car race which was being held at Brooklands. The race track was owned by the defendant and his company. Now when the race was being conducted, a collision between 2 racing cars occurred, one of which injured the plaintiff or the spectator.

The court held that the plaintiff had “voluntarily” taken the risk, and such type of injury can indeed happen and therefore, the defendant was not liable.

Exceptions To Volenti Non Fit Injuria

It must be noted that Volenti Non-Fit Injuria cannot be available to the defendant if he is not clean hand. If he is guilty of doing something which had ultimately led to the injury of the plaintiff, then the defendant cannot plead that he is not guilty.

In the case of Wagner v. International Railway[2], the railway company had allegedly thrown out a railway passenger out of the running railway train.  When the train stopped, the companion of the passenger got down of the train in order to search for his friend.  Now this person, got injuries since there was darkness all around the place and therefore, he sued the railway company. The court here held that since in this case the defendant’s wrongful act had ultimately led to the injury of the plaintiff, therefore the railway company was liable.


 If the plaintiff had himself done some wrong act, then the defendant cannot be held liable. The maxim “Ex turpi causa non oritur actio “is applicable here, which means that “from an immoral cause no action arises “.

It must be noted here that as long as the plaintiff’s wrong act has led to his own injury, then only can the defendant plead that he is not guilty.  For example, if a bridge, which is controlled by the defendant collides when the plaintiff’s lorry which is heavily overloaded passes through it, then the defendant can plead that it was because of the plaintiff’s own wrongful act, because of which the bridge has collided. But however, if after inspection it is discovered that the bridge had some infrastructural faults in it, then it was the defendant who would be held liable.


This is based on the Maxim “Salus populi supreme lex” which means that “Welfare of the people is the supreme law “. This defence can be used by the defendant when he or she has done some sort of harm or injury in order to prevent some greater harm or injury that could have happened if the defendant had not caused that former injury.

 In the case of Cope v. Sharpe[3],  the plaintiff’s land was in fire. The defendant reportedly entered the plaintiff’s land to stop the fire from spreading to the adjoining land, which was owned by the defendant’s previous master. The court held that, the defendant shall not be held liable for trespass, because his act was quite justified, considering the fact that he had done it in order to prevent a greater injury.

It must be noted here that the trespass by the defendant must be a reasonable one. For example, if the defendant had entered the premises of the plaintiff in order to stop the fire, but the fireman had already appeared and started working to stop the fire, then the defendant’s act would not have been reasonable, and therefore he would have been held liable.


 The words “Act of God” means something which is “unprecedented and extraordinary in nature”. It is something which cannot be anticipated by any human skill or through any type of foresight. Even if it could be anticipated through some means, it cannot be resisted.

In order for an act to be an Act of God, the act must be-

  1. Direct

  2. Violent

  3. An irresistible act.

  4. Not be connected with any man-made forces.

In the case of Manindra Nath Mukherjee v. Mathuradas Chatturbhuj[4], a board had fallen on the plaintiff. The defendant claimed that it was due to an Act of God, that is, a storm had made the board fall on the plaintiff. Here, the court held that the storm was not at all an uncommon incident or something of an extraordinary nature. The defendant should have taken strong measures to keep the board from falling. So, the defendant cannot claim “Act of God” here.


Inevitable accidents are defined as those accidents which are physically unavoidable. It means that these types of accidents cannot be avoided by either the plaintiff or the defendant.

In the case of Fardon v. Harcourt- Rivington[5], the defendant had left his dog in his car to go somewhere. It was a nice, calm dog. Now, the plaintiff was passing by. Suddenly, the dog broke the window glass in excitement, and the plaintiff was injured in the eye.

Here, the court held that the defendant was not liable. It said that people can take care of “reasonable probabilities “and not of “fantastic possibilities “. Therefore, it was not possible for the defendant to understand from earlier that his dog might do something like this. Therefore, there was no negligence from the defendant’s side and the court held that this was indeed a case of inevitable accident.


The private defence says that, if the defendant has done something in order to protect himself or herself or his or her property, then, it comes under private defence and at that time, the defendant cannot be held liable.

It must be noted here that the use of force by the defendant must be justified in nature and that it should be done only for the purpose of defense. Further, it also must be noted that unless and until there is an immediate threat to the safety of the defendant, he can be held liable for the use of unnecessary force.

It is also necessary to consider that the force used by the defendant must not be excessive. For example, if the plaintiff intended to push the defendant, then the defendant cannot take out a knife and murder the plaintiff and then give the reason that he was just saving himself.


Be it a mistake of fact or a mistake of law, the defendant cannot plead that he is not guilty by saying that he had done a mistake, either a mistake of fact or a mistake of law.

For example, somebody is driving a car and he did not stop the car when the signal is red. He reasons that he does not know the law of the country. This is not justified because if the person is residing in a country or a state or some society, it is his responsibility to be aware of the laws. Not knowing laws cannot be an excuse.

The maxim “Ignorantia juris non excusat “says that “ignorance of law is no excuse”.


If the legislature authorises some act to be done, even if it is a tort, then the petitioner cannot seek for any type of remedy.

Thus, for example, if a railway line has been constructed which is resulting in lots of disturbance in the nearby residential area, then any person residing in those areas cannot seek for a remedy, considering the fact that the construction of the railway line was done under the authority of a statutory act.


The main purpose of creating tort law is that – to provide remedy to all those persons who have been legally injured due to a civil wrong.  Moreover, tort law is necessary in order to seek financial compensation from various companies and corporate sectors if they have been negligent towards their service.

 Therefore, a tort which basically means a wrong, arises due to a person’s duty to others. Tort is something which is created by one’s own misconduct.

The law of tort in India is developed and evolved from the law of torts in United Kingdom. It is also known as “Judge Made Law “, and this law does not come from a statute. Moreover, it is not codified. Irrespective of this, it has been in existence over a number of years. However, the instances of cases under tort law are reducing. Compared to the number of cases under tort law in the USA and UK, the tort litigation in India is quite low in number.



[1] (1932) All E.R. Rep. 208: (1932) 1 K.B. 205.

[2] (1921) 232 N.Y. 176.

[3] [1891] 1 K.B. 496

[4] AIR 1946 Cal. 175

[5] 1932 48 TLR 215

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