GENERAL DEFENCE in tort:

When a plaintiff brings an action against the defendant for a particular tort or violation of legal right,
resulting in legal damages, and successfully proves the essentials of a tort, the defendant is held liable.

However few exceptions are there in which the defendant can plead some defences which can help him
in absolving from liabilities. Below listed are the General defences in tort.

Private Defence
Among the general defences in tort, private defence is the most common. When a defendant tries to
protect his body or property or any other person’s property, harms another person by using reasonable
force, under an imminent-danger and where there is no time to report instantly to the authority, it is
Private Defence. The harm done should be proportional according to the nature of the circumstances.
Essential:
a. The defendant must have acted in self-defence or defence of another person or property.
b. The defendant should apply a reasonable force. It should not be in excess of what is required.
Illustration:
1.Jack sees a person assaulting his friend, and he intervenes to protect his friend. Jack cannot be held
liable for any harm or injury caused to the assailant as he acted in defence of his friend.

2. If a thief breaks into the defendant’s personal property and tries to injure the defendant by beating
him with a rod, then the defendant should tackle the thief using proportional force. If he is using a
shotgun, then he can fire it on thief’s instead legs of his chest/forehead or it would be unreasonable.
(Bird v. Holbrook )

Necessity
‘Necessity knows no law’. In order to avoid or prevent a great loss or harm, a defendant can cause
lesser harm that is justified. The act of the defendant may be not legal but if it is to avoid major damage
then he can plead this defence.
Essential:
 When the defendant acts to avoid a significant risk of harm.
 His causing of harm should be justified.
Illustration: A firefighter breaks into a house to put out a fire, causing damage to the property.
However, the firefighter cannot be held liable for the damage caused as their Essentials actions
were necessary to prevent harm to human life. (Carter v. Thomas)

Inevitable accident
The defence of inevitable accident means that the harm or injury suffered was not preventable. The
defendant can argue that the harm or injury was due to unforeseeable circumstances, and therefore,
they should not be held liable for it.
Essentials
a. The harm or injury suffered was not foreseeable.
b. The harm or injury suffered was due to unforeseeable circumstances.
Illustration: A tree branch falls on a car, causing significant damage. The car owner cannot claim
damages from the owner of the tree as the falling of the branch was due to unforeseeable
circumstances and was not preventable. (Stanley v. Powell)

Act of God
The defence of an act of God means that the harm or injury suffered was due to natural events
beyond human control. The defendant can argue that the harm or injury was caused by an act of God,
and therefore, they should not be held liable for it.
Essentials
 The act should result from a natural force.
 No human intervention.
 Extraordinary in nature
Illustration: A sudden flood damages a property, and the property owner cannot claim damages
from the government as the flood was caused by a natural event beyond human control. (Kallu Lal v.
Hemchand)

Mistake
The defence of mistake means that the defendant made an honest mistake and did not intend to cause
harm or injury. The defendant can argue that they did not have the required knowledge or
information to act differently.
Essentials
a. The defendant made an honest mistake.
b. The mistake was made in good faith.
c. The mistake was not intentional.
Illustration: John, a doctor, prescribes the wrong medicine to a patient due to a mix-up in the
patient’s medical history. The patient suffers an adverse reaction to the medicine. However, John
cannot be held liable for the harm caused as he made an honest mistake. (Morrison v. Ritchie &
Co,)

Statutory authority
The defence of statutory authority means that the defendant was acting under the authority of a
statute. The defendant can argue that their actions were permitted by law, and therefore, they should
not be held liable for any harm or injury caused.
Essentials
a. The defendant was acting under the authority of a statute.
b. The defendant’s actions were permitted by law.
Illustration: A police officer uses force to subdue a suspect while making an arrest. The police
officer cannot be held liable for the harm or injury caused as their actions were authorized by law.
(Hammer Smith Rail Co. v. Brand, )

Plaintiff himself the wrongdoer

There is a maxim “Ex turpi causa non oritur actio” which says that “from an immoral cause, no
action arises.

The defence of plaintiff the wrongdoer means that the plaintiff was also responsible for the harm or
injury suffered. The defendant can argue that the plaintiff’s actions contributed to the harm suffered,
and therefore, they should not be held solely liable for the damages.
Essentials
a. The plaintiff must have contributed to the harm or injury suffered.
b. The plaintiff’s contribution to the harm must be significant.
Illustration: Tom is driving on the wrong side of the road and collides with a car driven by Mike.
Both Tom and Mike suffer injuries. However, Tom can argue that Mike was also at fault as he was
driving at an excessive speed, and therefore, he should not be held solely responsible for the
damages. ( Bird v. Holbrook)

Volenti Non Fit injuria

In volenti non fit injuria, if a plaintiff has consented to a wrongful act with free content, either express or
implied, under no pressure of fraud or coercion, with voluntary acceptance of risk, then he has no right
to sue the defendant. Also, there should be a duty on behalf of others. / The defence of volenti non fit
injuria means that the plaintiff has voluntarily assumed the risk of injury or harm. The defendant can
argue that the plaintiff was aware of the risk involved in the activity and willingly accepted it, and
therefore, cannot claim damages for any harm suffered as a result.

Essentials
a. The plaintiff must have voluntarily and knowingly assumed the risk of harm or injury.
b. The plaintiff must have been aware of the nature and extent of the risk.
c. The plaintiff must have consented to the risk.
Illustration: A professional wrestler, John, takes part in a wrestling match. During the match, he
sustains a severe injury. However, he cannot claim damages for the injury sustained because he knew
the risks involved in the activity and voluntarily participated in it. (Hall v. Brooklands Auto Racing
Club)

EXPLAIN THE MAXIM INJURIA SINE DAMNO AND DAMNUM

SINE INJURIA WITH RELEVANT CASE LAWS?

Law of torts is said to be a collection of circumstances in which remedy is given by the court by way
of damages for the legal harm caused by one person to another.
Three elements which need to be proved before constituting tort are as follows:
 a. There must be an act or omission on the part of defendant.
b. That act or omission should be in violation of legal right that is vested in the plaintiff.
c. Defendant should commit such wrongful act or omission that give rise to a legal remedy.

There are 2 legal maxims that fall under this category:

1. Damnum sine injuria

2. Sine injuria damnum

1. Damnum Sine Injuria : The literal meaning of the maxim, Damnum Sine Injuria, is loss or
damage in terms of money, property, or any physical loss that occurs without the
infringement of any legal right. It is not actionable in law even if the act was intentional and
done with the intent of causing harm to someone else but without infringing on the person's
legal rights.

Damnum Sine Injuria is a maxim that refers to an injury suffered by the plaintiff but no violation of
any legal right of a person has taken place. In such instances, where there is no violation of a legal
right, but the plaintiff suffers injury or damage, the plaintiff cannot bring an action against the other
for the same, as it is not actionable in law unless there is some infringement of a legal right.

In a landmark case of, Gloucester Grammar School Case, the defendant, a schoolmaster,
purposefully opened a school in front of the plaintiff's school, causing him damage. As a result of
increased competition, the plaintiff has had to reduce the fees from to pence per scholar from 40
pence per scholar. It was determined that even though the plaintiff suffered harm, there was no
infringement of any legal right, and thus the defendant could not be held liable. It was held that the
plaintiff had no remedy for the losses suffered, since the act though morally wrong has not violated
any legal right of the plaintiff.

Damnum Sine Injuria

Actual Damage without Legal injury

2. Injuria sine Damnum

This legal maxim refers to as the infringement of the legal right without causing any harm to
the plaintiff. Every person has the right to his property, immunity of hid person and
infringement of this right is actionable per se. The law provides liberty to every person whose
legal right has been infringed to seek relief under the provisions of Specific Relief Act by way
of injunction and declaration.

injuria sine damnum

Legal Injury without Actual damage

In the landmark case of Ashby Vs. White (1703) wherein the plaintiff was a qualified voter at the
parliamentary elections which were held at that point of time. The defendant, a returning officer
wrongfully refused to take the plaintiff’s vote. The plaintiff suffered no damage since the candidate
which he wished to vote already won the elections but still, the defendants were held liable. It was
concluded that damage is not merely pecuniary but injury imports a damage, so when a man is
hindered of his rights he is entitled to remedies.

Difference
Injuria Sine Damnum refers to legal injury caused to the plaintiff without any physical injury,
whereas Damnum Sine Injuria refers to a physical injury suffered by the plaintiff, but no damage is
caused to the legal rights as there is no violation of them. Another distinction is that the of actionable
in law, so Injuria Sine Damnum is actionable per se because there is a violation of legal right,
whereas the other is not because no legal right is violated.

Conclusion
The main goal of the maxim Damnum Sine Injuria is that no ground of action or cause of action
exists for a person who acts within reasonable limits even if the other person suffers losses as a
result, whereas the main goal of the maxim Injuria Sine Damnum is that if a person's legal right is
violated, a cause of action arises and the person whose legal right has been infringed suffers losses.
In these cases, a qualified right, as opposed to absolute rights, has been violated.

The two maxims conclude that one is a moral wrong for which the law provides no remedy even if it
causes great loss or detriment to the plaintiff, whereas the other is a legal wrong for which the law
provides a legal remedy even if there is a violation of a private right without actual loss or detriment
in that particular case.

====================Only two questions=====================================

Discharge of Tort
There are seven different modes through which tort is discharged and no remedy will lie for tort. It is
a process through which the tort comes to an end. A wrongdoer is not liable for his actions.

(The term “discharge of torts” refers to the termination or resolution of a tortious claim or legal
action. It signifies that the legal liability associated with a tort has been extinguished or ended. When
a tort is discharged, the party who committed the wrongful act is no longer held legally responsible
for their actions and the injured party loses the right to seek further remedies or damages for the
tort. )

Discharge of Torts
There are seven methods through which torts can be discharged and in these instances, no remedy
can be sought for the tortious act. The following are the modes of discharge of torts:
 Death of the parties
 Accord and satisfaction
 Release
 Judgment
 Law of limitation
 Waiver
 Acquiesce

These methods serve as ways to discharge torts and terminate the liability of the wrongdoer in tort
law.

Death of the parties:

Here the maxim ‘actio personalis moritur cum persona’ applies which means if the person dies his
personal right of action dies with him.
Actio personalis moritur cum persona this is the important maxim, it means if the person who
commits a tort or the person against whom the tort is committed dies, the personal right or the right
to receive the damages or the right of action dies with the person.
The death of either the person who committed the tort or the person against whom the tort was
committed results in the discharge of the tort.
Illustration : If the person who committed the tort dies during the course of the trial, their
liability and the tort are discharged. Similarly, if the person against whom the tort was
committed dies, their personal right of action dies with them.

Accord and Satisfaction

Parties come to an agreement and settle the dispute by accepting consideration in lieu of the right of
action. / Concept of accord means when the parties of the tort i.e. the person who commits the tort
and the person against whom the tort has been committed, come to an agreement and settle the
dispute. Such an agreement is known as Accord. In general term, it means settling the issue by
accepting some consideration in lieu of the right of action.
Illustration : A’s family agrees to accept a compensation of Rs. 1,50,000 from B for the injury
caused by B’s car, and upon receiving the payment, the tort is discharged.

Release
The injured party voluntarily gives up the right to pursue legal action against the wrongdoer. / A
Release means giving up the right to the action. It means when a person by his own choice
discharged the tort. This right is only provided to the person against whom the wrong has been done.
Illustration : A, the person against whom B committed a tort, chooses to release B from liability by
providing free consent.

Judgment
The tort is discharged through a court’s decision on the matter, and no further remedy for the same
act of tort can be claimed. / In this method, the discharge of tort happens by the judgement given by
the court. If once the court gives judgement on the matter, the tort gets discharged, no appeal for the
same act of tort can be claimed for the same remedy in the court of law.
The concept of this method of discharge of tort is based on the legal maxim of Res-Judicata, it
means, if any cause of action decided previously by the court, the same cause of action should not be
entertained by the court twice.
Illustration : A obtains a judgment from the court against B for a previous accident, and later
discovers the need for further medical treatment, but cannot seek another remedy for the same
incident.

Waiver
The injured party selects one available remedy when multiple options exist, and is prevented from
pursuing alternative remedies. / The concept of waiver is when a person has more that one remedy
available to him, as a result, he has to elect one of them. He cannot apply for both the remedy except
in the case of defamation and assault.

Illustration : If A files a case against B that B has committed a tort against A. If A has right to get
more than one remedy he has to choose any one of them, i.e. if he has the remedy in both tort and
contract law, now he has to choose one between them.
1. The person has to choose any one remedy.
2. If the person fails to get the remedy he chooses, the court of law does not allow him to go
back to an alternative remedy.

Acquiescence
The tort is discharged due to the plaintiff’s own inaction or failure to enforce their rights within a
reasonable time. / In this method, the tort gets discharged because of the incapacity of the plaintiff
himself i.e. if he has no time to go to court, no money to pay the court fees, or any other incapacity.
When any person is entitled to enforce his right, and he doesn’t enforce his right for a long time, this
makes other party waived from his liability.
Illustration
if A is entitled to enforce his right against B. If A neglects to enforce his right for a long time, it
automatically waived B from his liability.

Law of Limitation
The tort is dismissed or barred due to the expiration of the prescribed time limit for filing a case. /
Under this method the tort gets dismissed due to the limitation i.e. when the prescribed time limit to
file the case gets over, in this situation the tort gets dismissed and no person is entitled to enforce his
right.
Illustration
If a tort of trespass to the property has been committed by B against A, if A fails to apply against it
within 3 years in the court of law, then he cannot apply as he lost his right to apply due to limitation.

Conclusion
A tort is an act/conduct that is twisted. It means the violation of a legal right of a person by the act of
the other person i.e. the breach of the legal right of the other person. But the right of action of the
party can become discharged in certain conditions like the death of any of the party, by Waiver, by
Accord and Satisfaction, by Release, or by the judgement of the court of law. Through the above
methods, the tort becomes discharge and no remedy will lie for tort.

Tort against human body (assault, battery etc)

A tort is a conduct that harms other people or hampers their property. It is a private wrong against a man
for which the aggrieved party can recover damages, i.e. money or monetary compensation. The injured
party can sue the wrongdoer (tortfeasor) to seek damages to compensate for the harm or loss to him. The
conduct which is a tort can also be a crime.

Assault and Battery are often used interchangeably but they are different. They both are intentional
tort. Every Battery includes assault but every assault does not include a battery.

Assault generally means when a person planned and tries to harm another person which also includes
giving threats to someone else and Battery, on the other hand, it means when a person tries to
compromise to harm physically to another person without the person’s consent.

Assault and Battery can be treated in both ways that means a person can be charged in civil lawsuit
i.e. demanding for compensation in the form of damages in monetary terms or maybe in criminal
lawsuit if the accused found guilty for the offense can be put in jail.

ASSAULT
Assault comes in a picture before the battery. It happens when a person plans and tries to harm to
another person when a person commits an act of battery. Act of assault can be tried under civil
lawsuits as well as criminal lawsuits.

Assault as a tort
It is civil assault, in which the person can sue the respondent for the full extent of his loss, which
may also include lost earnings and pain and suffering of the past and future.
In R v St George[3] the court held that if a person is holding a loaded gun to another person then this
will be treated as an assault. Even if the gun is not loaded but the person is holding a gun from such
distance that it may cause injury then maybe an assault.
Assault as a crime –
It is a criminal assault in which the person can be put bind the bars and he may be imprisoned, and
may also have to pay a fine and reinstatement. But the fine would be paid to the government, and
restitution would most likely cover only the medical bills, not your non-economic losses such as pain
and suffering stemming from the incident.

BATTERY
It means when a person came in physical contact or touches thing which belongs to that person or
things related to that person with the intention to harm the other person this is known as Battery. In
this the main ingredient physical conduct, when the accused came in physical contact with the
intention to harm another person then the offense of Battery will be committed. Every battery
includes assault that’s why they both are used together mostly.
The offence of battery can be committed in a civil lawsuit as well as in a criminal lawsuit.

1. Criminal battery
2. Civil battery

1. Criminal Battery
When the battery is dealt with in criminal lawsuit, it means when a person makes physical contact
with the intention to harm/kill another person this will be considered as Battery as a crime, in this
intention plays the important role of which to kill another person. Under section-350 of the Indian
Penal Code, the battery is mention under the head of the criminal force.
This defines as if any person uses any kind of force without the person’s consent and commits any
offence while using such force so that he can cause any injury, fear, or annoyance to the other person
that is known as Criminal Force.

2. Civil Battery
The civil Battery is regulated as a tort because this is a civil wrong. When a person hurts or harm
another person but he has no intention to hurt or to harm that person and the accused also not aware
that the accused force will harm or hurt the person, then this civil battery. Under this intention is not
there to hurt someone so the person can file a complaint in civil court.
Difference between Assault and Battery / DISCUSS THE CONCEPT
ASSAULT AND BATTERY WITH RELEVANT EXAMPLES?

Assault Battery

Battery includes intentional

Assault is the attempt to commit application of force to another
Definition
battery. person without any lawful
justification.

Physical contact is needed.

Threat of violence is enough for

Important
assault. No physical contact is
aspect
necessary.

· There should be use of force.

Create reasonable apprehension in · The same should be, without
Principle the plaintiff’s mind that immediate any lawful justification.
force will also be used.

Objective To threaten a person. To cause harm.

Nature Not necessarily physical. Must be physical.

Tort against property – trespass

Following are the various categories of torts relating to the movable and immovable property along
with the remedies and defences available to the plaintiff and defendant respectively.

Introduction
The term property means all the physical or virtual entity that is owned by an individual or jointly by
a few individuals. The properties are further divided into the movable property and immovable
property

Movable Property
Any property of an individual or group of people, which can be moved from one place to
another comes under the movable property. Like a car, bike, laptop, pen, even a stick etc. comes
under the movable property.

What type of movable property covered under the Tort

All the movable property like a car, bus, bike, horse, cat, dog, laptop, standing crops of one’s field
even the fruits on the tree of one’s garden, even the wood of one’s tree etc. i.e. all the things on
which a person has legal right to possess and is the rightful owner of that movable property is
covered under tort law.

Tort related to Movable Property

As we already discussed the concept of the Movable Property and what movable properties come
under the scope of tort related to movable property. Generally, there are four categories in which tort
relating to movable property falls:
1. Trespass To Goods
2. Trespass ab initio
3. Detinue
4. Conversion or Trover

1. Trespass to Movable Property/Goods

When a person with a wrongful intention cause any damage to the movable property of other is said
to commit the act of trespass to movable property.
It means unlawful causing the disturbance with someone’s movable property or goods without one’s
consent. OR
The act of Trespass of Goods means the unlawful and intentional disturbance with the possession of
the goods by taking it away from the possession from the rightful owner wrongfully.
Illustration, If A friend of B, B is the owner of the motorcycle showroom. One fine day A is waiting
for B to come out From his house. A without the consent of B, remove the tyre of one of the B’s
Motorcycle. Thus A does the act of Trespass to Goods of B.
Illustration, If A, a friend of B enters B’s car and A scratched the hood of B’s car without B’s
permission. A is liable for the act of Trespass to Movable Property.

Muthuswami Gounder vs Thulasi Ammal

In this case, the driver of the car driving negligently, and stuck with auto and caused damage to the
auto. Court, however, state that it was not only the case of an accident but also a trespass to another’s
movable property and the damage to the property. Thus the defendant is liable for trespass to
movable property.
2. Trespass ab initio
A person who legally takes the movable property in his possession, but later abuse it or waste it i.e.
wrongfully disturbs his own possession, render himself liable as according to Trespass ab initio.
The plaintiff must show:
1. He has rightful possession (actual or constructive)
2. His possession was wrongfully disturbed.
Illustration:
If A gives his car to B for repairs. Now B has legal possession of that car but later if B abuses or
wrongfully disturb the possession of car then he is liable for the trespass ab initio. Here in this
situation B has the legal/rightful possession of car but if he later abuses that possession that makes
him liable.

3. Detinue or Detention
The act in which a person wrongfully holds the movable property of another. The Remedy provided
by English law is an action in detinue, i.e. specific recovery of the detained movable property from
the person’s possession. The person who wrongfully detained the movable property is known as a
wrongful detainer.
For the purpose of recovery of detained movable property the plaintiff has to prove:
1. That he has the lawful right to possess the movable property.
2. That the defendant wrongfully detained the possession of the movable property.
if A gives his pressure cooker to B for repairs. Later A pays for the service to the B, but even after
receiving of the payment B denied to give the cooker to A. this act of B is the act of detention.

4. Conversion or Trover
Illustration: The concept of conversion used as a remedy used by the court as to convert the
possession of the movable property to the rightful person i.e. if a person who found the property of
another and refused to give it back to the rightful owner then by conversion the court provide the
remedy to plaintiff.
But as the time change, the conversion is used for wrongful taking or using the property of another
and the remedy which is available to the plaintiff is to be known as the action of conversion.
To maintain the action of conversion, the plaintiff should have to prove:
1. That he has the lawful right to possess the movable property.
2. That the defendant wrongfully converts the possession of the movable property.

Immovable Property
Any property of an individual or a group of people, which cannot be moved from one place to
another place comes under the scope of immovable property. Like land, building etc.

Introduction
A is a farmer and his farm is next to the land of B who has cows. One day, B’s cows enter the farm
of A and cause damage to his farms. Here the owner of cows i.e. B will be liable for the tort of
trespass which is a tort relating to immovable property. In order to show that a tort of immovable
property has been caused, one needs to fulfil the following conditions:-
1. There is a right to hold or possess
2. There is either disturbance or usurpation(seize) of such right
3. Such disturbance or usurpation may be caused by actual physical damage to property or
by interference with or impairing of the enjoyment of it
Torts relating to immovable property consist of the following categories:
1. Trespass ab initio
2. Injury to reversionary rights
3. Waste
4. Dispossession
5. Wrongs to natural rights and easement
6. Nuisance

1.Trespass ab initio (Trespass to Immovable Property)

It means when a person with wrong intention and unreasonably without the consent or permission or
without any lawful authority causes disturbance on someone’s immovable property like land,
property, house, office etc.
Illustration, if Ram put a notice board written “No Entry without permission” on the front gate of his
garden. One fine day Chetan enter the garden without the permission of Ram. Chetan commits the
act of Trespass to Immovable Property.
The following conditions must be fulfilled in order to apply the doctrine of trespass ab initio-
1. The authority must be given by law.
2. The subsequent act must be misfeasance. (especially the wrongful exercise
of lawful authority.)

The Six Carpenters’ Case 1610

2.Injury to Reversionary Rights

A reversioner is a person who has a lawful interest in land but not its present possession, e.g.
landlord and a reversioner interest is any interest, vested or contingent, the enjoyment of which is
postponed. Reversionary interests are injured by either the strangers or by tenants.

3.Waste
It is spoil or destruction of houses, gardens, trees or unlawful damage caused to the immovable
property by the person who was just given lawful possession of that property. Such damage must be
of permanent nature and should cause prejudice to the owner or the reversioner.

4.Dispossession
An owner is said to be dispossessed of his immovable property when the defendant does an act
which declines the overall dominion of the plaintiff over the property. An owner can also be said to
be dispossessed of his property when the defendant acquires settled possession of the land with the
intention of acquiring exclusive control over the immovable property of the owner (Sundara Sastrial
v. Govinda Mandaroyan, 1908).

5.Wrongs to Natural Rights and Easements

An easement right is a non-possessory right to use the property of others without having the
possession of such property. When any such right is infringed or interfered by any stranger or owner
of that property then that amounts to tort and is actionable.

6.Nuisance
Nuisance is broadly categorized into two categories:-
1. Public Nuisance– it is an act or omission which causes any common injury, danger or
annoyance to the public or to the people in general who dwell or occupy the property. To
make nuisance an actionable tort one must satisfy the following two essentials-
 Wrongful act
 Damage or loss or inconvenience or annoyance caused by such act to another.
2. Private Nuisance– it is unauthorized use of one’s own property causing damage to the
property of another or some unauthorized interference with the property or the propriety
rights of another.