General defences and justification for tortious liability

General defences or justification for tortious liability


The term tort is derived from a Latin term “Tortum “which means twisted. Over the course of time many jurists have tried to define the word tort let’s see some of the definitions the definition given by Winfield “Tortious liability arises from the breach of duty primarily fixed by law, this duty is towards persons generally and its breach is repressible by an action for unliquidated damages.”

The definition given by salmond “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.”

As in law everyone is given a chance to defend themselves for a wrongful act done by them so in law of torts which is still evolving (which was claimed by Winfield so he named it law of torts) have fixed some defences which are known as general defences in law of torts. The laws are uncodified and developed by the court in different cases time to time.

General defences for tortious liability

1. Volenti non fit injuria

Volenti non fit injuria means that no one can claim damages of the injury caused by the risk to which they have already consented. The consent can be given in expressed or implied manner. The consent should be given freely not under any undue influence or fraud. As an example of this a person who have bought a ticket for watching a cricket match in the stadium have consented to any of the damages that may cause to him by the match, at the movement he bought the ticket so the player and the stadium authority are free from the liability arising out of such an accident.

When the consent was free

In the case of Illot vs Wilkes it was held that when a trespasser got injured by the spring gun on defendant land than defendant is not liable because he knowingly entered the property and have suffered for the same.

When the consent was obtained by Fraud

In R.V. Williams case a music teacher raped her 16-year-old student, the girl was under the impression that the teacher was doing so to enhance her voice. Here the girl does not understand the very nature of the act so it was held that she never consented to it. As a person who have not understood the nature of the act how can he give consent to it.

Mere Knowledge of risk doesn’t mean implied consent. In Nettleship vs Weston, Lord Denning said: “Knowledge of the risk of injury is not enough. Nothing will suffice short of an agreement to waive any claim for negligence. The plaintiff must agree expressly or impliedly to waive any claim for any injury that may befall him due to the lack of reasonable care by the defendant: or more accurately due to the failure by the defendant to measure up to the duty of care which the law requires of him”.

2. Private defence

In law everyone has the right to protect themselves and their property by using a reasonable force. For private defences to be recognized as a defence in tort the force used must be reasonable and there should be an eminent threat to a person’s life and property.

If the thieves have entered in your house to rob you and you took gun and start shooting on them, the act is accepted as an act of private defence but at the time the thieves have ran out of your house and you continued to shoot on them it will not be accepted as an act of private defence as there was no more threat to your life or property. Keeping a dog on your property or keeping your property fenced can be termed as private defence for property.

In the case of Bird vs Holbrook, the court held that setting up of spring gun on your property will not come under the private defence of property because the force used was much more than a reasonable man could have used.

3. Necessity

It is rightly said that necessity knows no law. If less harmful method is used to avoid the greater harm than the defence of necessity can be claimed. The private right of an individual can be curtailed for the good of people at large as an example a psycho killer can be put behind the bars to keep the public safe at large. To avail the defence of necessity two condition needed to be fulfilled the defendant have to avoid a significant large harm than the other harm and he should be justified. It is not available in the case of Negligence.

There was a massive fire broke out in San Francisco the fire department blown up the house of the plaintiff to stop the progress of fire and moving to other building, these were the facts of the case surroco vs Grary. They court held that the defendant is not liable as he acted in good faith and under necessity.

4. Vis major or act of God

As the name itself suggests that it is an act that is beyond human control. Act of God is a valid defence in strict liability which was evolved in the case of Ryland vs Fletcher but in India we also have the doctrine of absolute liability which was evolved in the case of MC Mehta vs UOI to which there is no defence. For an act to be termed as an act of god it has to fulfill the condition that the damage was not forcible by a reasonable man and the act was of natural forces.

In the case of Nichol vs Marshland, the defendant has created artificial lake to hold water in rainfall. The boundary of the lake got destroyed by an extraordinary rainfall and as a result the water destroyed all the bridges of the plaintiff land. The court termed it as an act of god. It we take the same facts with slight modifications in it that the lake was dug in an area where there is always extraordinary rainfall with compared to other places and then the boundary of the lake got destroyed then it will not be termed as an act of god.

5. Inevitably accident

It is different from the act if god in a way that in act of god the damage should be result of the natural forces but in the case of inevitable accident the condition was that the substance should be in control on the humans but due to some reason it was out of control of a human for some time. Inevitable accident occurs despite been taken all kind of care taken by a reasonable man. For an example shooting a bird sitting on the tree but the bullet rebounds and hit the plaintiff it is an inevitable accident.

In Shridhar Tiwari vs state of UP state road transport corporation a cyclist suddenly came Infront of the bus, dispute been applying the brakes the bus could not stop because of the heavy rain and as a result the rear portion of the but hit another bus coming from the opposite direction even none of the driver was negligent in their work. The court held that it is an inevitable accident and no one is held liable for this.

6. Contributory negligence

This defence does not completely take away the liability of the defender but help in reducing the compensation to be paid by the defendant to the plaintiff if it is proved to be a case of contributory Negligence. This defence follows the basic principle of law of tort that the plaintiff should be compensated whether the defendant is punished or not. Take an example as a worker left the ladder on the road negligently and a biker who is driving on wrong side of the road with high speed is also Negligent so if he got hurt by colliding with the ladder then it will be the case of contributory Negligence.

This doctrine has a principle of last opportunity, whoever have the last opportunity to avoid the accident will be held liable for the entire loss. If the owner of an animal has tied their animal on road and a person run into the animal at night who have light on his vehicle, will be held liable by the virtue of doctrine of last opportunity.

7. Statuary authority

It is a complete defence for a person who is authorized by a statuary legislation to do a work. The protection given to a person under it can be lost at the time he acts unreasonably. The victims of this tort are left remediless and can only be compensated if the legislation provide so. The point should be kept in mind for a statuary authority are that there should be the existence of a provision in statue which is in question and secondly does the parliament intended to create a defence. Most of the cases in which the defence of statuary authority is accepted are cases of nuisance.


This article discusses about the general defences in the law of torts as while a person I learning about the tortuous liability should also learn about the general defences available. This article just gives an overview of the general defences and there is more that can be learned about these general defences.

Author: Devanshu Jain,
SLS Nagpur

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