law of tort

This article is written by Darshika Lodha, a BBA.LLB(Hons.) student of Unitedworld School of Law, Karnavati University. This article deals with the general defences available under the Law of Torts.


When an action for tort is brought against the defendant, the person will certainly be made liable if he had committed the Act. However, in every action for tort, certain defences are open to the defendant, by way of which he can escape his liability. There are eight General Defences are as follows:

  1. Voleneti non fit injuria
  2. Plaintiff the wrongdoer
  3. Inevitable Accident
  4. Act of God
  5. Private Defence
  6. Necessity
  7. Statutory Authority
  8. Mistake

All the general exceptions are discussed in detail below:

1. Volenti non-fit injuria

If the plaintiff has consented to a wrongful act with free consent, without the threat of fraud or coercion to acknowledge the danger voluntarily, he shall have no right to sue the defendant under which both have consented. Consent happens when the plaintiff shows interest in the actions of the defendant. As a result, no man can impose a right that he has willingly surrendered or abandoned and in the case of Hall v. Brooklands Auto-Racing Club[1], the court held that the plaintiff had deliberately taken the risk of watching the race. It’s a type of injury that anyone watching the event could predict. In this case, the defendant was not liable.

2. 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 maxim “ex turpi causa non oritur action” which means no action arises from an immoral cause. Thus, an unlawful act of the plaintiff could lead to a valid defence. If the defendant claims that the plaintiff is the wrongdoer himself and is not entitled to damages, it does not mean that the court will leave him free from responsibility, but that he will not be liable under that heading. In the case of Bird v. Holbrook[2], the plaintiff was entitled to recover the damages he had suffered as a result of the sprint guns he had put in his garden without knowledge of the same.

3. Inevitable accident

The inevitable accident was a mishap. It can not be prevented despite the attention and care of the ordinary and intelligent individual. It is also a successful defence if the defendant can show that it neither intended to harm the complainant nor could it prevent injury by taking proper care of him. There is no inevitable accident unless the defendant can prove that something happened that he did not have control over and that the effect could not have been avoided and in the case of Stanley v. Powell, The defendant fired at a pheasant, but the bullet struck the plaintiff after the oak tree had been reflected, and he suffered serious injuries. The incident was considered an inevitable accident and the defendant was not liable.

4. Act of God

The act of God or Vis Major or Force Majeure used in cases where an event over which there is no human control of the act and the damage is caused by the forces of nature. This is beyond human imagination and can not be prevented by human intervention. Act of God is also defined as “Action induced solely by the violence of nature, without any human interference”.  Some of the essentials of Act of God are:

  • The act should be the result of a natural force.
  • It’s extraordinary in nature.
  • No human interference at all

In the case of Nichols v. Marshland[3], there has been an exceptional storm, the highest in human history. It caused the lake bank to burst, and the escaped water carried away four bridges belonging to the plaintiff. It was therefore held that the bridges of the plaintiff had been swept by an act of God, and that the defendant would not be held liable for the same thing.

5. Private Defence

Private defence refers to the defence, where the defendant seeks to protect his or her body or property or any other property and harms another person with reasonable force in imminent danger, where there is no time to report to the authority, it is, therefore a private defence.

6. Necessity

If an action is taken to avoid more damage, even though it has been done deliberately, it is not actionable and acts as a good defence. It gives a person or state the right of using or taking away the property of another. It is well described in the maxim “Solus Populi Suprema Lex, i.e. people’s wellbeing is the ultimate law. The act that causes certain damage is, therefore, an excuse when it is done for a large number of people or to avoid harm. It can be explained in the case of Carter v. Thomas[4], the defendant, who breached the plaintiff’s property in good faith to extinguish the fire in which the firefighter had already served, was held responsible for the trespass.

7. Statutory Authority

If an act is authorized by a legislative statute or enacted by the legislature, the defendant will not be held responsible for damages arising from the statute. The powers conferred on the legislature should be exercised with caution so that no unnecessary damage is done and the person must act in good faith and not exceed the powers conferred on the legislature. In the case of Hammer Smith Rail co. v. Brand[5], the plaintiff’s property value was depreciated as a result of loud noise and vibrations produced while the train departed from the railway line, which had been made under statutory provisions. The court held that nothing could be claimed for the damage suffered as had been done under the statutory provisions. In the case, the defendant was held not liable.

8. Mistake

If the defendant acts based on a misconception in certain situations, he may use the defence of error to avoid liability under the law of wrongdoing. This defence can be well explained in the case of Consolidated Company v. Curtis[6], the auctioneer auctioned some of his customer’s goods, believing that the goods belonged to him. But then the true owner filed a suit against the auctioneer for a conversion error. The court held that the auctioneer was liable and stated that the mistake of fact was not a defence, which could be pleaded in this case.


Thus, to sum up, there are various general defences available to the defendant which can be pleaded by him to escape the tortious liability. The plaintiff must bring an action against the defendant for a particular tort, the plaintiff is required to prove all the essentials of that particular tort. If the plaintiff fails to prove all the essential ingredients, the defendant cannot be made liable for the act. However, once the plaintiff proves all the ingredients, the burden of proof then shifts to the defendant who pleads for the defence.

[1] (1932) 1 KB 205

[2] 1825

[3] (1876) 2 ExD 1

[4] 1976

[5] [1869] LR 4 HL 171

[6] (1892) 1 QB 495

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