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.


The general defences are as follows:

  1. Volenti non fit injuria, or the defence of ‘Consent’
  2. Plaintiff the wrongdoer
  3. Inevitable accident
  4. Act of God
  5. Private Defence
  6. Mistake
  7. Necessity
  8. Statutory Authority


1. Volenti non fit injuria:

This means that "if the suffering is willing, no injury is done." When a person consents to the infliction of some harm upon himself, he has no remedy for that in tort; his consent serves as a good defence against him. Consent to suffer the harm may be expressed or implied. When you invite somebody to your house, you cannot sue him for trespass.


Many a time, the consent may be implied or inferred from the conduct of the parties. For example, a person going on a highway is presumed to consent to the risk of pure accidents. In the same way, a spectator at a cricket match or a motor race cannot recover if he is hit by the ball or injured by a car coming on the track.


For the defence of consent to be available, the act causing the harm must not go beyond the limit of what has been consented. A player in a game of hockey has no right of action if he is hit while the game is being lawfully played. But if there is a deliberate injury caused by another player, the defence of volenti, cannot be pleaded. Similarly, if a surgeon negligently performs an operation, he cannot avoid the liability by pleading the defence of consent.


Relevant Case Laws:


  1. Hall v. Brooklands Auto Racing Club (1932) – In this case, 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 being inherent in the sport which any spectator could foresee, the defendant was not liable.


  1. Padmavati v. Dugganaika (1975) – In this case, while the driver was taking the jeep for filling petrol in the tank, two strangers took lift in the jeep. Suddenly, one of the bolts fixing the right front wheel to the axle gave way toppling the jeep. The two strangers were thrown out and sustained injuries, and one of them died as a consequence of the same. It was held that neither the driver nor his master could be made liable, firstly, because it was case of sheer accident and, secondly, the strangers had voluntarily got into the jeep and as such, the principle of volenti non fit injuria was applicable to this case.


  1. Wooldrige v. Sumner (1963) – In this case, the plaintiff, who was a photographer, was taking photographs at a horse show while he was standing at the boundary of the arena. One of the horses, belonging to the defendant, rounded the bend too fast. As the horse galloped furiously, the plaintiff was frightened and he fell into the horses’ course and there he was seriously injured by the galloping horse. The horse in question won the competition. It was held that since the defendant had taken due care, they were not liable. The duty of the defendants was the duty of care rather than duty of skill. The spectator in such a game or competition takes the risk of some damage even though there may have been error of judgement or lapse of skill.


This maxim (volenti non fit injuria) is subject to a number of exceptions: -


a. The game or sports or the operations must not be one which is banned by law. Football, Cricket, Hockey etc. are lawful games. However, Boxing with open fists, duel with poisonous swords are legally prohibited. In such cases the maxim does not apply. The injury may be sustained by the persons who are participating in the games or by the spectators or by third parties.


b. Consent: The consent must be free and voluntary. If consent is obtained by fraud it is no consent. Moreover, the act done by the defendant must be the same for which the consent is given. Thus, if you invite some person to your house, you cannot sue him for trespass when he enters your premises. But, if the visitor goes to a place for which no consent is given, he will be liable for trespass.


For instance, a postman has the implied consent of the resident of a building to go up to a particular place to deliver dak. For his entry up to that particular point, he cannot be made liable. If the postman goes beyond that limit and enters the rooms of the house, he would be liable for the trespass.


Relevant Case Laws:


  1. Lakshmi Rajan v. Malar Hospital Ltd. (1998) – In this case, the complainant, a married woman, aged 40 years, noticed development of a painful lump in her breast. The lump had no effect on her uterus, but during surgery, her uterus was removed without any justification. It was held that the opposite party, i.e., the hospital, was liable for deficiency in service. It was also held that the patient’s consent for the operation did not imply her consent to the removal of the uterus. When a person is incapable of giving his consent because of his insanity or minority, consent of such person’s parent or guardian is sufficient. Thus, a surgeon performing a surgical operation of a child with the guardian’s consent is protected even though the child protests against the operation.


  1. R. v. Williams (1923) - The defendant was a singing teacher who convinced his 16-year-old pupil to have sexual intercourse with him under the guise of a medical or surgical procedure to improve her breathing and singing voice. The girl submitted to the act, genuinely believing it was a legitimate medical intervention and not a sexual act. The Court of Appeal upheld the defendant's conviction for rape and indecent assault.


c. Scienti non fit injuria: Knowledge of Risk is not equal to consent of risk. In other words, mere knowledge does not imply consent.


Relevant Case Laws:


  1. Smith v. Baker (1891) – In this case, the plaintiff was a workman employed by the defendants on working a drill for the purpose of cutting a rock. By the help of a crane, stones were being conveyed from one side to the other, and each time the stones were being 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 employers 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 maxi volenti non fit injuria did not apply, and the defendants were liable.


  1. Dann v. Hamilton (1939) – In this case, a lady knowing that the driver of the car was drunk chose to travel in it instead of an omnibus. Due to driver’s negligent driving, an accident was caused resulting in the death of the driver himself and to the lady passenger. In action by the lady passenger for such injuries against the representatives of the driver, the defence of volenti non fit injuria was pleaded but the same was rejected and the lady was held entitled to claim compensation. The reason why the defence of volenti non fit injuria was considered to be not applicable was that the degree of intoxication of the driver was not to such an extent that taking a lift could be deemed to be consenting to an obvious danger.


d. Rescue Cases: The scope of application of the doctrine of volenti non fit injuria has been curtailed in rescue cases. In spite of the fact that the plaintiff has consented to suffer the harm, he may still be entitled to his action against the defendant in these exceptional situations.


Relevant case laws:


  1. Haynes v. Harwood (1935) – In this case, the defendants’ servant left a two-horse van unattended in a street. A boy threw a stone on the horses and they bolted, causing grave danger to women and children on the road. A police constable, who was on duty inside a nearby police station, on seeing the same, managed to stop the horses, but in doing so, he himself suffered serious personal injuries. It being a ‘rescue case’, the defence of ‘volenti non fit injuria’ was not accepted and the defendants were held liable. However, a person who is injured in an attempt to stop a horse which creates no danger will be without remedy.


  1. Wagner v. International Railway (1921) – In this case, a railway passenger, was thrown out of a running railway car due to the negligence of the railway company. When the car stopped, his companion got down and went back to search for his friend. There was darkness, the rescuer missed his footing and fell down from the bridge resulting in injuries to him. He brought an action against the railway company. It was held that it being a case of rescue, the railway company was liable.


Sometimes, the question which arises is, does the rule in Haynes v. Harwood apply in cases of rescue of property? The question was answered in the affirmative in Hyett v. Great Western Railway Company. In that case, the plaintiff was injured in an attempt to save the defendant’s railway cars from fire which had occurred due to the negligence of the defendant. The plaintiff’s conduct was considered to be reasonable and on the basis of the doctrine of Haynes v. Harwood which was applied in this case, the defendant was held liable.


2. Plaintiff the wrongdoer:

It states that if the plaintiff's own illegal or wrongful act caused or contributed to their harm, they cannot seek damages. This principle is based on the maxim "Ex turpi causa non oritur actio," meaning "no action arises from an immoral cause".


Example:

If a thief is injured by a collapsing roof while breaking into a building, they generally cannot sue the property owner for negligence — their injury arose directly from their illegal act (burglary).


The principle seems to be that the mere fact that the plaintiff was a wrongdoer does not disentitle him from recovering from the defendant for latter’s wrongful act. The plaintiff may have to answer for his wrongful act but he does not forfeit his right of action for the harm suffered. Thus, if a trespasser enters my premises, I cannot inflict unnecessary injuries upon him and if any such injury is caused, the “trespasser is liable to an action for the injury which he does, but he does not forfeit his right of an action for injury sustained.”


Relevant Case Laws:


  1. Bird v. Holbrook (1828) – In this case, the plaintiff, a trespasser over the defendant’s land was entitled to claim compensation for injury caused by a spring set by the defendant, without notice, in his garden.


  1. Pitts v. Hunt (1991) - A plaintiff who encouraged a drunk and reckless driver to continue driving was injured in an accident. The court refused to grant damages because the plaintiff's own wrongful act was a contributing factor to his injuries.


3. 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 defendant, it is inevitable accident.


Relevant Case Laws:


  1. Stanley v. Powell (1891) – In this case, the plaintiff and the defendant, who were members of a shooting party, went for pheasant shooting. The defendant fired at a pheasant, but the shot from his gun glanced off an oak tree and injured the plaintiff. It was held that injury was accidental and the defendant was not liable.


  1. Shridhar Tiwari v. U.P. State Road Transport Corporation (1987) – In this case, while bus ‘A’ belonging to the U.P.S.R.T. Corporation reached near a village, a cyclist suddenly came in front of the bus. It had rained and the road was wet. As the driver applied brakes to save the cyclist, the bus skidded on the road, as a result of which the rear portion of this bus hit the front portion of bus ‘B’ coming from the opposite direction. It was found that at that time, both the buses were being driven at a moderated speed and the accident had occurred despite due care on part of the drivers of both the buses. It was held that the accident had occurred due to inevitable accident and, therefore, the defendant Corporation was held not liable for the same.


Accidental damage to the property has been considered not actionable.


  1. Nitro-Glycerine Case (1872) – In this case, the defendants, a firm of carriers, were given a wooden case for being carried from one place to another. The contents of the box were not known. Finding some leakage in the box, the defendants took the box to their office building to examine it. While the box was being opened, the Nitro-Glycerine in the box exploded and the office building, belonging to the plaintiff, was damaged. It was held that since the defendants could not reasonable suspect that the box contained Nitro-Glycerine, they were not liable for the damage caused by the accident.


The defence of 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 a case.


  1. S. Vedantacharya v. Highways Department of South Arcot – In this case, on 14th November, 1960, a bus passed over a culvert/drain, the same gave way, the bus plunged into the stream, as a result of which one person travelling in the bus died. A presumption of negligence was raised against the Highways Department. The Highways Department pleaded non-liability on the ground that the ere were very heavy rains during the least 15 days, and there was more than 6 inches of rain a day before the accident resulting in the breach of a nearby lake, whereby the water entered the culvert with terrible velocity, which ultimately made it to give way. The Engineers’ Report had disclosed that the culvert was sound a day before, and the normal traffic has passed through it. Reversing the decision of the Madras High Court, the Supreme Court held that not making suitable provision for strengthening the culverts and the bridges against heavy rain and flood, which can be anticipated, amounts to negligence. The Highways Department, it was further held, could not be absolved from liability by merely claiming that the accident was due to heavy rain and flood. It had to be further proved that necessary preventive measures had been taken anticipating such rain and flood and the accident occurred in spite of that. Since the Highways Department failed to prove any such anticipatory action, it was not a case of inevitable accident and hence, the Highways Department was held liable.


4. Act of God:

Act of 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, tides, and volcanic eruptions.


Two important essentials are needed for this defence –

  1. There must be working of natural forces;
  2. The occurrence must be extraordinary and not one which could be anticipated and reasonably guarded against.


Relevant Case Law:


  1. Nichols v. Marsland (1876) – In this case, the defence was successfully pleaded. There the defendant created some artificial lakes on his land by damming some natural streams. Once there was an extraordinary heavy rainfall, stated to be the heaviest in human memory, as a result of which, the embankments of the lakes gave way. The rush of water washed away four bridges belonging to the plaintiff. It was held that the defendants were not liable as the loss has occurred due to Act of God. In this case, the rainfall was extraordinary heavy, and could not be anticipated. If the rainfall is a normal one which could be expected in a certain area, the defence of Act of God cannot be pleaded.


  1. Kallulal v. Hemchand (1958) – In this case, the wall of a building collapsed on a day when there was rainfall of 2.66 inches. That resulted in the death of the respondent’s two children. The Madhya Pradesh High Court held that the defendant (appellant) could not take the defence of Act of God in this case, as that much of rainfall during the rainy season was not something extraordinary but only such as ought to have been anticipated and guarded against. The appellant was, therefore, held liable.


5. Private Defence:

The law permits use of reasonable force to protect one’s person or property. The condition to exercise private defence is that there should be ‘imminent threat’ to person’s life or property.


The force must be reasonable and proportionate in respect of self-defence. As we saw in Bird v. Holbrook (1828) case, loading spring guns in the garden without any notice regarding the same, was considered to be disproportionate force.


Relevant Case Laws:


  1. Ramanuja Mudali v. M. Gangan (1984) – In this case, the defendant, a land owner had laid some live electric wire on hi land. The plaintiff while crossing it at 10 P.M. in order to reach his own land, received a shock from the wire and sustained injuries. The defendant had given no visible warning about such wire. He was, therefore, held liable for the injuries caused to the plaintiff.


  1. Collins v. Renison – In this case, the plaintiff went up a ladder for nailing a board to a wall in the defendant’s garden. The defendant threw him off the ladder and when sued for assault, he took the pleas that he had “gently shaken the ladder, which was a low ladder, and gently overturned it, and gently threw the plaintiff, on the ground, thereby doing a little damage as possible to the plaintiff,” after the plaintiff refused to come down. It was held that the force used was not justifiable in defence of the possession of land.


6. Mistake:

Mistake, whether of fact or law, is generally no defence to an action for tort. When 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.


Relevant Case Law:


  1. Consolidated Co. v. Curtis (1894) – In this case, 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 some other person. In an action by the true owner, the auctioneer was held liable for tort of conversion.


To this rule, there are some exceptions when the defendant may be able to avoid his liability by showing that he acted under an honest but mistaken belief.


For Example, mistake of a servant may put his act outside the course of employment of his master and the vicarious liability of the master may not arise.


7. Necessity:

An act causing damage, if done under necessity to prevent a greater evil is not actionable even though harm was caused intentionally.


Relevant Case Laws:


  1. Leigh v. Gladstone (1909) – In this case, forcible feeding of a hunger striking prisoner to save her was held to be a good defence to an action for battery.


  1. Cope v. Sharpe (1891) – In this case, 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, the interference is not reasonably necessary, the defendant will be liable.


  1. Carter v. Thomas (1891) – In this case, the defendant, who entered the plaintiff’s premises in good faith to extinguish fire at which the firemen had already been working, was held liable for trespass.


Distinction between Necessity and Private Defence, and Necessity and Inevitable Accident:


  1. In necessity there is an inflection of harm on an innocent person whereas in private defence, harm is caused to a plaintiff who himself is the wrongdoer.
  2. In necessity, the harm is an intended one, whereas in an inevitable accident, the harm is caused in spite of the best effort to avoid it.


8. Statutory Authority:

The damage resulting from an act, which the legislature authorises or directs to be done, is not actionable even though it would otherwise be a tort. 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. Immunity under statutory authority is not only for that harm which is obvious, but also for that harm which is incidental to the exercise of such authority.


Therefore, if a railway line is constructed, there may be interference with private land. When the trains are run, there may also be some incidental harm due to noise, vibration, smoke, emission of sparks, etc. No action can lie either for interference with the land or for incidental harm, except for payment of such compensation which the act itself may have provided. 


Relevant Case Laws:


  1. Vaughan v. Taff Valde Rail Co. (1860) – In this case, sparks from an engine of the respondent’s railway company, which had been authorised to run the railway, set fire to the appellant’s woods on the adjoining land. It was held that since the respondents had taken proper care to prevent the emission of sparks and they were doing nothing more than what the statute had authorised them to do, they were not liable.


  1. Hammer Smith Rail Co. v. Brand (1869) – In this case, the value of the plaintiff’s property had considerably depreciated due to the noise, vibration and smoke caused by the running of trains on a railway constructed under statutory powers. The damage being necessarily incidental to the running of the trains, authorised by the statute, it was held that no action lies for the same.


It is necessary that the act authorised by the legislature must be done carefully, and therefore, “an action does lie for doing that which the legislature had authorised, if it be done negligently.”


  1. Smith v. London and South Western Railway Co. (1870) – In this case, the servants of a railway company, negligently left trimmings of grass and hedges near a railway line. Sparks form 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 Railway Co., they were held liable.


Absolute and Conditional Authority:


The statue may give absolute or conditional authority for the doing of an act. When the authority given by the statue is conditional, it means that the act authorised can be done provided the same is possible without causing nuisance or some other harm. Such a condition may be express or implied.


  1. Metropolitan Asylum District v. Hill (1881) – In this case, the appellants, a hospital authority were empowered to set up a smallpox hospital. They erected such a hospital in a residential area and the same created danger of infection to the residents of the area. It was held to be a nuisance and the appellants were issued an injunction to remove the hospital. The statutory authority, in this case, was construed to be conditional in so far as they were considered to be authorised to set up a hospital if that could be done without creating a nuisance.