GENERAL DEFENCES

Chapter – 2

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 case, avoid liablity by taking plea of some defence. Specific defences have
been discussed along with the particular torts to which they relate. The general defences discussed
in this chapter are as follows :

1. Volentinon fit injuria

When a person consents to the infliction of some harm upon himself, he has no remedy for that in
tort. In case, the plaintiff voluntarily agrees to suffer some harm, he is not allowed to complain for
that and his consent serves as a good defence against him.

 No man can enforce a right which he has voluntarily abandoned/ waived.

 Consent to suffer the harm may be express or implied.
Example:When you invite somebody to your house, you cannot sue him for trespass, nor you can sue
he surgeon after submitting to a surgical operation because you have expressly consented for the
same.
For the maxim volentinon fit injuria to apply, two points have to be proved:
(i) The plaintiff knew that the risk is there
(ii) He, knowing the same agreed to suffer the harm.
Features of consent
1. The consent must be free: One of the essential requirements before pleading the defence of
volentinon fit injuria is that the plaintiff’s consent to the act done by the defendant was free. If
the consent of the plaintiff has been obtained by fraud or under compulsion or
misrepresentation, such consent will be not served as good defence.
2. The act done by the defendant must be the same for which the consent is given.
3. There should be capacity to give consent. When a person is incapable of giving consent being a
minor, consent of such person’s parent or guardian is sufficient. An insane person is also
incapable of giving consent and consent for him can be provided by those who look after him.
4. Consent obtained by fraud: The consent obtained by fraud cannot be real and does not serve as
good defence.
Examples I:A,the driver of a jeep was taking the jeep for filling the petrolin 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 a case
of sheer accident and secondly, the strangers had voluntarily got into the jeep and as such, the
principle of volentinon fit injuria was applicable to this case.
EXAMPLE II
Principle : No legal remedy exists for an injury caused by an act, for which one has consented.
Facts :Vijay, a cricket enthusiast, purchases a ticket to watch the one day International Cricket Match
between India and Australia, organized by the Board of Control for Cricket in India (BCCI). As he is
absorbed in watching the exploits of Tendulkar, a ball struck for a six by the latter hit Vijay on his
body and injures him. Vijay sues BCCI for reimbursement of the medical" bill he paid for treatment
of the injury.
(a) Vijay should be compensated as he purchased the ticket to get entertainment and not to get
injured.
(b) Vijay would lose as he voluntarily exposed himself to the risk.
(c) 13CCI is liable as it did not ensure that the spectators were protected from the risks of such
injuries.
(d) None of the above
The correct answer is C

Exception : Rescue Cases

When the plaintiff voluntarily encounters a risk to rescue somebody from imminent danger created
by the wrongful act of the defendant, he cannot be met with the defence of volentinon fit injuria.
Example I
Principle: When the plaintiff voluntarily encounters a risk to rescue somebody from an imminent
danger created by the wrongful act of the defendant, he cannot be met with the defence of
volentinon fit injuria.
Fact: A’s 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. Decide
a) A is not liable because the Police constable voluntarily went to rescue the child and suffered harm.
b) A is liable because though it was a voluntary act but the act was done to protect a child from
danger.
c) A is not liable because it is the duty of a police constable to rescue person from any danger.
d) None of these.
The correct answer is B.

2. Plaintiff the wrongdoer

The essential point of defence is this case is that the plaintiff did something wrong which cause him
the injury. Since the plaintiff did something wrong, he cannot claim damages from someone else for
the injury caused to him.
ExampleI : A bridge, under the control of the defendant, gives way when an overloaded truck,
belonging to the plaintiff, passes it. If the truck was overloaded, contrary to the warning notice given
already given. And while passing through it, bridge gives its way and truck driver causes certain injury
with material damage. He sues the owner of the bridge for this.
In such even if the bridge was not under proper repairs, the plaintiff’s action will fail because the
plaintiff’s wrongful act is the determining factor of the accident.

Inevitable accident
Accident means an unexpected injury and if the same could not have been foreseen and avoided, in
spite of reasonable care and caution on the part of the defendant, it is a inevitable accident.
Example I
Principle: Inevitable accident is a general defence against the general rule of tortious liability.
Fact: Nishant was engaged in pheasant shooting along with a hunting party. While Powell was about
to finish his day, on being challenged by his party members to show his skill by shooting one more
pheasant, shot a round aiming at a pheasant. However, the bullet got deflected by a branch of tree
and hit Swapnil, a passerby, on the adjacent highway.
a) Powell is liable as his shot was not during his conduct as a reasonable man, but was an act of
bravado.
b) Powell is not liable as the shot was fired towards a pheasant only and the deflection was inevitable
accident.
c) Powell is liable as he should have taken greater care while shooting and should have shot the gun
only when he had a clear shot at the pheasant
d) Powell is not liable as shooting of pheasant is a legal activity and therefore any accident occurring
in the process of doing it legally does not amount to a wrong.

4. Act of God
This defence is very similar to the defence of inevitable accident. The difference is that the resulting
force is arising out of the working of natural forces like exceptionally heavy rainfall, storms, tempests,
tide etc.
Two requirement need to be satisfied to avail of this defence:
a) The injury must be caused by the effect of natural forces.
b) The natural forces must be unforeseen, or the effects must be unavoidable.
Q.Principle: Act of god is a general defence against the general rule of tortious liability.
Fact: ‘A’ created some artificial lakes on his land by damming some natural streams. Once there was
an extraordinary heavy rainfall, stated to be heaviest in human memory. The rush of water washed
away four bridges belonging to ‘B’. B sued A for this
a) A is strictly liable for the damages suffered by B because it was his duty to take proper care and
caution on his part.
b) A is not liable because damage suffered to B was due to the occurrence of natural force which
could not be anticipated and reasonably guarded against.
c) A is not liable because B owed a duty of care to protect his bridges against such extraordinary
natural forces.
d) A is liable to some extent because the damage caused by B was a result of partial negligence on
A’s part and partially due to the act of god.

5. Private defence
The law permits use of reasonable force to protect one’s person or property. If defendant uses the
force which is necessary for self defence, he will be liable for the harm caused thereby. The use of
force is justified only for the purpose of defence.
There should be imminent threat to the personal safety or property ( Protection of all primary
members of your group will come under the shade of private defence for example family member,
neighbour, friends) Excessive use of force or force which is not justified rebuts private defence
against tortious liability.
Q. 8. Principle: A person is not responsible for an act required for his private defence.

Fact: Ayush had put up some pieces of glass or spikes on the boundary of his garden which was easily
visible. Nishant, a trespasser was seriously injured by it while he was trying to cross it. Nishant sued
for the same
a) Nishant will succeed because reasonable notice the fixing of spikes was not fixed anywhere in front
of garden
b) Nishant will succeed because fixing of spikes was excessive use of force.
c) Nishant will not succeed because fixing of spikes was required for the protection of his garden
d) Nishant will not succeed because he didn’t took due care on his side before crossing the wall.
Necessity
Necessitasinducitprivilegium quod juraprivate( Necessity induces a privileges because of a private
right).
An act causing damage, if done under necessity to prevent a greater evil is not actionable even though
harm was caused intentionally.
Example I
Principle: Necessity knows no law, and any person facing danger may do all that necessary to avert
the same till he can take recourse to public authorities.
Fact: Akshay, a law abiding citizen decided to remove the weed of corruption from Indian society.
One day, confronted with a bribing official, Akshay decided to teach him a lesson and punched him
on his face. AkshayAILET 2015
a) Can plead defence of necessity as he was being bribed which is a crime.
b) Cannot plead defence of necessity as there was no necessity to act in the manner he acted.
c) Can plead defence of necessity as aware and vigilant citizenry forms the basis of a good democracy.
d) Can plead defence of necessity as there was no time to take recourse to public authority.

Statutory Authority
The damage resulting from an act, which the legislature authorized or directs to be done, is not
actionable even though it was otherwise a tort.
Example I :Sparks from the engine of A’s railway company, which had been authorized to run the
railway, set fire to the B’s wood on the adjoining land. It was held that since A had taken proper care
to prevent the emission of sparks and they were doing nothing more than what the statute had
authorized them to do, they were not liable
Example II :
Principle: Sovereign acts of a state are immune from liability under law of torts.
Facts: Sameer was detained by the local police under Prevention of Terrorism Act, but was
consequently set free after two days. It was alleged that he was apprehended because of his religion.
He sued the state government for the tort of wrongful confinement. CLAT 2014
a) Sameer cannot sue the government because law of torts deals with only private wrongs.
b) Situation is one of a criminal act and thus remedy under torts cannot be availed.
c) This is perfect case for grant of exemplary damages.
d) This is a sovereign action which is not actionable under law of torts.