GENERAL DEFENCES IN

TORT
UNDER THE TOPIC ‘GENERAL DEFENCES AND REMEDIES’
TABLE OF CONTENTS
• What are General Defences in Tort?
• Types of General Defences
• Volenti non fit injuria – meaning of consent and importance of knowledge and
understanding; application in cases of employment, medical treatment and
sport
• Contributory negligence – nature of a partial defence, apportionment of blame
and reduction of damages
• Inevitable accident, Act of God, Statutory authority, illegality and necessity
 DEFINITION OF GENERAL
DEFENCES
• Whenever a case is brought against the defendant for the commission of a tort
and all the essential elements of that wrong are present, the defendant would be
held liable for the same. Even in such cases, the defendant can avoid his liability
by taking the plea of the defenses available under the law of torts. 
• General defences are a set of defences or 'excuses' that you can undertake to
escape liability in tort.
• Some defences are particularly relating to some offences. In the case of
defamation, the defences available are fair comment, privileges and justification,
etc.
• When the plaintiff brings an action against the defendant
for a particular tort, with the existence of all the essentials
of that tort, the defendant would be liable for unliquidated
damages. However, even in such a case, the plaintiff can INTRO
avoid his liability by taking the plea of some defences that
are available under Law of Torts. TO
• From the topics we’ve done before, you can see that each GENERAL
had its own special defences. However, this topic will DEFENCE
cover all the general defences available to a defendant for S
claims under the law of torts.
• It basically means the voluntary assumption of risk.
When a person consents to the infliction of harm upon
himself, he has no remedy for that in tort making this an
excellent defence for the defendant against tortuous VOLENT
liability. Consent forms an essential part under this
doctrine- whether it is implied or expressed. It must not
I
be obtained fraudulently (as held in R. v Williams). NON
• This doctrine is based on the idea that “no man can
enforce a right that he himself has waived or voluntarily
FIT
abandoned”. However, the harm caused must not be INJURIA
beyond what is consented to.
• To put it simply, the act that causes such damage must be in
accordance with what was consented by the plaintiff in order to VOLENT
avoid tortuous liability (as held in Lakshmi Raj v. Malar
Hospital Pvt. Ltd [1997]-Where the plaintiff had only I
consented to have her appendix removed but, the surgeons had
also removed the uterus from her body and therefore, went NON
beyond the extent to what was consented for and thus, were
held liable for damages).
FIT
• For this principle to apply two basic conditions should be met: INJURIA
• The plaintiff knew that the risk is mere. (APPLICATION IN
CASES OF
• He, knowing the same, agreed to suffer the harm. MEDICAL
TREATMENT)
• In Hall v. Brooklyn Racing Club[1933]:
• The plaintiff was at a race where the race cars had collided causing one of VOLENT
them to fling into the seating area and injuring the plaintiff. It was held
that the plaintiff could not recover damages as he had impliedly consented
to such a risk when he came to attend the race.
I
• In Smith v. Baker[1891], the claimant was an employer to work on a drill NON
for the purpose of cutting rocks. Some stones were being conveyed from
one side to another using crane surpassing his head. He was busy at work FIT
and suddenly a stone fell on his head causing injuries. The defendants
were negligent as they did not inform him. The court held that mere INJURIA
knowledge of risk does not mean that he has consented to risk, so, the (APPLICATION IN
defendants were liable for this.  The maxim volenti non fit injuria did not CASES OF SPORT
apply.  AND
• But, if a workman ignores the instructions of his employer thereby EMPLOYMENT)
suffering injury, in such cases this maxim applies.
• There is a Latin maxim of ‘SCIENTI NON FIT INJURIA’ which literally
connotes that ‘MERE KNOWLEDGE DOES NOT IMPLY CONSENT’. VOLENT
• As seen in the employment case above of Smith v Baker[supra], even
though there was consent to the risk on the part of the plaintiff when he took I
the job, it did not mean consent to get hit and injured by rocks (i.e. suffer
the harm). Therefore, the defendants were held liable. NON
• Hence, When the plaintiff has the knowledge that the act is going to cause
harm or loss and in spite of that accepts to do it, agreeing to suffer the
FIT
injury, then the defendant will not be liable for such an act. But only having
the knowledge about such a risk is not enough for the application of this
INJURIA
(IMPORTANCE OF
maxim.  KNOWLEDGE
• However, having knowledge of such a risk is not enough for the application AND
of this defence, the principle of Scienti non-fit injuria[2] is recognised, UNDERSTANDING
)
which means that mere knowledge only constitutes a partial defence and
does not amount to consenting to the risk.
• There are however exceptions to this defence and they are
explained as follows:
• Rescue cases:
VOLENT
• These cases form an exception to the doctrine of Volenti non fit I
injuria- When the plaintiff voluntarily agrees to the risk of
damage while saving/rescuing somebody from an imminent
NON
danger created by the wrongful act of the defendant, he cannot
claim the defence of Volenti non fit injuria
FIT
• In Haynes v. Harwood[1935], a police officer took the risk to INJURIA
rescue children from the oncoming horses and as a result, (EXCEPTIONS TO
THIS DEFENCE)
suffered some serious damage. In an action against the owner of
the horses, the defendant was held liable for damages as the
defence of volenti non fit injuria did not apply.
• The Act authorized is itself unlawful:
• If voluntary consent is given for an act that is not allowed under VOLENT
the law, the actor will be liable for damages even if the consent
was there. In this case, the defence of Volenti non fit injuria will I
not be applicable.
• Negligence:
NON
• The defense of Volenti non fit injuria is also not applicable in FIT
cases of negligence as the basic constituent of the doctrine is
consent- whether implied or expressed. But, if due to some act INJURIA
of the defendant, the plaintiff is not left with ample time to (EXCEPTIONS TO
THIS DEFENCE)
choose to provide consent or not, there can be no agreement to
suffer harm from the said act.
• In case the plaintiff himself is the wrongdoer, it still does not make him
not entitled to recover the damages in case he suffers an injury “unless
some unlawful act or conduct on his own part is connected with the
harm suffered by him as a consequence of the transaction”.

• Therefore, a person trespassing on the defendant’s land and getting injured

by an array of spring guns set by the defendant (without notice or
warning) would not hinder him from claiming damages (as held in Bird v CONTRIBUTO
Holbrook[1825]) RY
• Like in comparison to the concept of ‘intervention by a claimant’, the
NEGLIGENCE
claimant will still be able to recover damages for the harm he suffered,
even though his act might have contributed to the occurrence of the harm.
Although, he would only be able to recover damages for the acts of the
defendant.
• A contributory negligence defence is quite simply an argument that the
claimant, through some action or omission of their own, contributed
manifestly to their own injuries, and that this fact should be reflected in
the awarded damages. Since it affects the damages, rather than the verdict
of the case itself, it is a partial defence.
• The effect of a contributory negligence defence is easy to understand. It
involves asking to what extent a claimant contributed to their own injuries
as a percentage, and then taking that percentage off of his or her damages. CONTRIBUTO
Thus if the courts regard a claimant as having made a 40% contribution to RY
their own injuries, the court will reduce their damages by 40%. Because NEGLIGENCE
of this mechanism, the defence is not available where the relevant remedy
is not damages (because it’s impossible to reduce an injunction by a
percentage!).
• The authority for the defence and a description of how it works can be
found in s.1(1) of the Law Reform (Contributory Negligence) Act 1945,
although the defence itself was developed before then.
• There are two main elements of a contributory negligence defence. Firstly,
the claimant must be at fault (their conduct having fallen short of the
expected standard of care). Secondly, once fault has been established, the
extent of blame must be apportioned.
• Finding Claimant Fault
• As per s.4 of the 1945 Act, claimant fault includes negligence, breach of
statute or any other form of tortious liability and (perhaps paradoxically) CONTRIBUTO
any other act which gives rise to a defence of contributory negligence. RY
This criterion is important, since it means that contributory negligence
will only arise where the claimant’s behaviour can be regarded as giving
NEGLIGENCE
rise to tortious liability.
• An example of the negligent fault principle can be seen in Jones v Livox
Quarries.
Case in Focus: Jones v Livox Quarries [1952] 2 QB 608
• The claimant worked in a quarry owned by the defendant. He decided to
hitch a lift on the back of an excavator by standing on the tow bar,
unbeknownst to the driver, and a policy was in place forbidding this
behaviour. A dump truck, driven recklessly by another employee, went out
of control and hit the back of the excavator, crushing the claimant’s legs,
leading to amputation.
• Whilst the dump truck’s driver was to blame for the accident, the court held
that the claimant was 20% to blame for his injuries - he had acted CONTRIBUTO
negligently, and had acted against orders. Lord Denning MR identified the RY
foreseeably requirement: NEGLIGENCE
• "Just as actionable negligence requires the foreseeability of harm to others,
so contributory negligence requires the foreseeability of harm to oneself. A
person is guilty of contributory negligence if he ought reasonably to have
foreseen that, if he did not act as a reasonable, prudent man, he might be
hurt himself…"
- Lord Denning MR, at 615
• Thus, contributory negligence is not based on being in the wrong place at
the wrong time, but rather on whether the claimant had acted reasonably
in the circumstances, with ‘reasonable’ defined as taking action to avoid
foreseeable harm. It should be noted that reasonable behaviour is not
based on acting to prevent any and all foreseeable accidents, but rather
just taking precautions to avoid generally foreseeable harm. All that can
be asked of claimants is that they take reasonable precautions to self-
protect themselves, since the nature and extent of the tort that affects them
CONTRIBUTO
will be determined by the behaviour of the defendant who has harmed
them. In other words, you can wear a seatbelt, but you can’t stop someone RY
from hitting you with their car. NEGLIGENCE

Case in Focus: Froom v Butcher [1976] 1 QB
286
The claimant was involved in a negligently caused
car accident, in which the claimant was not
wearing a seatbelt. A lengthy discussion of
contributory negligence ensued, with Lord
Denning coming to the follow conclusion (in
reference to failures to wear seatbelts):
“Sometimes the evidence will show that the
failure made no difference. In such case the
damages should not be reduced at all. […] At
other times the evidence will show that the failure
made all the difference. In such cases I would
suggest that the damages should be reduced by 25
per cent. […] Often enough the evidence will only
show that the failure made a considerable
difference. In such case I would suggest that the
damages […] should be reduced by 15 per cent.”
- Lord Denning MR at 293
It is perhaps odd that situations in
which the entire harm of the accident
can be attributed to non-seatbelt
wearing only attract a 25% reduction
in damages. However, it should not be
forgotten that whilst a claimant has a
responsibility to wear a seatbelt, they
have a greater right to not be hit by a
negligent driver. Of course, this only
refers to non-seatbelt wearing - it may
well be a case that a claimant
CONTRIBUTO
contributes to an accident in more RY
than one way, and so the contribution NEGLIGENCE
will be greater. So a claimant who
isn’t wearing a seatbelt and is
speeding and on their mobile phone
will have their damages slashed
beyond 25% for their myriad
wrongdoings.
• It should be noted however that whilst there are generally accepted
situations in which contributory negligence will be found, the precedent
set by cases such as Froom and O’Connell (and any other case in which
contributory negligence is found) is of a soft, rather than a hard nature.
The only set rule is that the courts should consider each instance of
contributory negligence on the basis of its own facts and circumstances. 
• The relevant standard of care can change depending on the characteristics
of the claimant. Thus, children will be expected to act less carefully than CONTRIBUTO
adults, as in Gough v Thorne [1966]  RY
• Once claimant fault has been established the court will seek to ascertain NEGLIGENCE
the contribution the claimant has made to their harm, expressed as a
proportion, as per s.1 of the 1945 Act.
• It should be noted that courts are prevented from making deductions of
100%, following Pitts v Hunt[1991] and this is what makes contributory
negligence take a nature of partial defence.
• This case also takes us to the apportionment of blame.
• The claimant was injured whilst riding on the back of the defendant’s
motorcycle. The defendant was driving negligently, and hit an oncoming
car, killing himself and permanently disabling the claimant. A variety of
different factors were tabled regarding the claimant’s contributory
negligence. Both parties were drunk. The defendant had no motorcycle
license or insurance. The defendant was driving dangerously, and the
claimant was encouraging him to do so, with both parties shouting and
jeering at pedestrians. The court of first instance held that the claimant
CONTRIBUTO
was 100% liable, but on appeal this was reduced by 50%. The bench
noted that the function of contributory negligence was not to defeat a RY
claim, but merely to reflect a claimant’s contribution to that claim. This is NEGLIGENCE
a perfectly sensible approach - a defendant who is regarded as 0% to
blame for a tort isn’t at fault at all.
• Whilst the reduction in damages will be a matter of factual context, there are
two general factors that the court will take into account - fault and causation.
Fault refers to the claimant’s lack of care - so not wearing a seatbelt
demonstrates a lack of care. Consider two drivers who are hit from behind
whilst driving, both of who suffer the exact same damage. The first is not
wearing a seatbelt (a moderately careless act), whilst the second has failed to
repair a broken brake light (a minor careless act). The courts will regard the
first driver more harshly, because they have been more careless, even if the
resulting damage is the same. CONTRIBUTO
• Causation refers to the extent to which the claimant’s lack of care affected the RY
damage they sustained. Consider two drivers, neither of whom are wearing NEGLIGENCE
seatbelts. The first is involved in an accident which is made a lot worse by
the lack of a seatbelt. The second is involved in an accident the result of
which is only made slightly worse by the lack of seatbelt. The courts will
regard the first driver as more culpable (this is essentially
the Froom decision).
• These two factors are combined, so a very foolish act or omission which
makes an accident massively worse will result in a far higher reduction in
damages then a minor omission which only makes an accident a little worse.
• Volenti non fit injuria is a complete defence but the defence of
contributory negligence came after the passing of the Law
Reform (Contributory Negligence) Act, 1945. In contributory
negligence, the defendant’s liability is based on the proportion
of fault in the matter.
• In the defence of contributory negligence, both are liable – the
defendant and the plaintiff, which is not the case with volenti VOLENTI NON
non fit injuria. FIT INJURIA
AND
• In volenti non fit injuria, the plaintiff knows the nature and
CONTRIBUTO
extent of danger which he encounters and in case of
RY
contributory negligence on the part of the plaintiff, he did not NEGLIGENCE 
know about any danger.
• Accident means an unexpected injury and if the same accident could not
have been stopped or avoided in spite of taking all due care and
precautions on the part of the defendant, then we call it an inevitable
accident. It serves as a good defence as the defendant could show that the
injury could not be stopped even after taking all the precautions and there
was no intent to harm the plaintiff.
• In Stanley v Powell [1891], the defendant and the plaintiff went to a
pheasant shooting. The defendant fired at a pheasant but the bullet after
getting reflected by an oak tree hit the plaintiff and he suffered serious INEVITABLE
injuries. The incident was considered an inevitable accident and the ACCIDENT
defendant was not liable in this case. 
• In Brown v Kendall [1850], the dogs of the plaintiff and the defendant
were fighting with each other. The defendant tried to separate them and
while doing so, he accidentally hit the plaintiff in the eye causing him
some serious injuries. The incident was purely an inevitable accident for
which no claim could lie. So, the court held that the defendant is not liable
for the injuries suffered by the plaintiff as it was purely an accident. 
• In Padmavati v Dugganaika [1975], the driver of the jeep took the jeep to fill
petrol in it. Two strangers took a lift in the jeep. The jeep got toppled due to some
problem in the right wheel. The two strangers who took lift were thrown out of
the jeep and they suffered some injuries leading to the death of one person. 
• The conclusions which came out of this case are:
The master of the driver could not be made liable as it was a case of a sheer
accident and the strangers had voluntarily got into the vehicle.
The principle of volenti non fit injuria was not applicable here.
It was a case of a sheer accident which no one could foresee.  INEVITABLE
ACCIDENT
• In the case of Oriental Fire & General Ins. Co. Ltd. v Raj Rani [1984], the
front right spring and other parts of a truck broke all of a sudden and the driver
could not control it and dashed into a tractor that was coming from the opposite
direction. The driver and the owner of that truck could not prove that they had
taken all reasonable precautions while driving the truck. The court held that this
case comes under negligence and has nothing to do with the inevitable accident
and the defendant was liable.
• Act of God serves as a good defence under the law of torts. It is
also recognized as a valid defence in the rule of ‘Strict
Liability’ in the case of Rylands v Fletcher.
• The defence of Act of God and Inevitable accident might look
the same but they are different. Act of God is a kind of
inevitable accident in which the natural forces play their role
and causes damage. For example, heavy rainfall, storms, tides, ACTS OF
etc. 
GOD
• Essentials required for this defence are:
Natural forces’ working should be there.
There must be an extraordinary occurrence and not the one
which could be anticipated and guarded against reasonably.
• Working of natural forces
• In Ramalinga Nadar v. Narayan Reddiar, the unruly mob
robbed all the goods transported in the defendant’s lorry. It
cannot be considered to be an Act of God and the defendant, as
a common carrier, will be compensated for all the loss suffered
by him.
• In Nichols v. Marsland, the defendant created an artificial lake ACTS OF
on his land by collecting water from natural streams. Once there
was an extraordinary rainfall, heaviest in human memory. The
GOD
embankments of the lake got destroyed and washed away all the
four bridges belonging to the plaintiff. The court held that the
defendants were not liable as the same was due to the Act of
God. 
• Occurrence must be extraordinary
• Some extraordinary occurrence of natural forces is required to
plead the defence under the law of torts.
• In Kallu Lal v. Hemchand, the wall of a building collapsed due
to normal rainfall of about 2.66 inches. The incident resulted in
the death of the respondent’s children. The court held that the ACTS OF
defence of Act of God cannot be pleaded by the appellants in GOD
this case as that much rainfall was normal and something
extraordinary is required to plead this defence. The appellant
was held liable.
• If an act is authorized by any act or statute, then it is not actionable even if
it would constitute a tort otherwise. It is a complete defence and the
injured party has no remedy except for claiming compensation as may
have been provided by the statute.
• Immunity under statutory authority is not given only for the harm which is
obvious but also for the harm which is incidental. 
STATUTORY
• In Hammer Smith Rail Co. v. Brand[42], the value of the property of the
plaintiff depreciated due to the loud noise and vibrations produced from
AUTHORIT
the running trains on the railway line which was constructed under a Y
statutory provision. The court held that nothing can be claimed for the
damage suffered as it was done as per the statutory provisions and if
something is authorized by any statute or legislature then it serves as a
complete defence. The defendant was held not liable in the case.
• In Smith v. London and South Western Railway Co. , the servants of a
railway company negligently left the trimmings of hedges near the
railway line. The sparks from the engine set fire to those hedges and due
to high winds, it got spread to the plaintiff’s cottage which was not very
far from the line. The court held that the railway authority was negligent
in leaving the grass hedges near the railway line and the plaintiff was
entitled to claim compensation for the loss suffered.
STATUTORY
• In Vaughan v. Taff Valde Rail Co. , sparks from an engine of the
AUTHORIT
respondent’s railway company were authorized to run the railway, set fire Y
to the appellant’s woods on the adjoining land. It was held that since they
did not do anything which was prohibited by the statute and took due care
and precaution, they were not liable. 
• Absolute and Conditional Authority
• The authority given by a statute can be of two types:
Absolute
Conditional
• In the case of Absolute authority, there is no liability if the nuisance or
some other harm necessarily results, as it is deemed an obligation by the
statute and this would be an absolute defence but when the authority is
STATUTORY
conditional it means that the same is possible without nuisance or any AUTHORIT
other harm, so only a discretionary power is given and can not serve as an Y
absolute defence.
• In the case of Metropolitan Asylum District v. Hill, the hospital
authorities i.e. the appellants were granted permission to set up a smallpox
hospital. But the hospital was created in a residential area which was not
safe for the residents as the disease can spread to that area. Considering it
a nuisance an injunction was issued against the hospital. The authority, in
this case, was conditional, so they had discretionary power which they
used wrongly and so were held liable for that wrong.
• Illegality, sometimes referred to as ‘ex turpi causa’ (from a foul cause), is
a complete defence essentially asserting that the claimant’s harm occurred
whilst in pursuit of a criminal endeavour. This should not be regarded as a
rule that prevents all claims from succeeding - if this were the case then
every road user not wearing a seatbelt or speeding would have their
claims in tort barred. Instead, the defence tends to only by applied by the
courts when it is just to do so, and as a prerequisite the harm must be
closely linked to the criminal act that the claimant is engaged in.
• In Cummings v. Granger [1977] QB 397. The claimant was a burglar ILLEGALI
who was in the process of robbing a scrap yard. Unbeknownst to the
claimant, an untrained Alsatian was loose in the yard to deter intruders.
TY
The dog bit the burglar, who then sued the defendant. The claim was
denied by the courts on the basis that the claimant was in the process of a
criminal enterprise, and his injury could be connected to it.
• The same principle can be seen at work in Vellino v Chief Constable of Greater
Manchester Police.
• The claimant, a serial criminal and escapee, jumped from a second floor window.
He suffered serious injuries, including tetraplegia. The claimant brought a case
against the police, asserting that the police owed him a duty to prevent him from
injuring himself. The claim failed, on the basis that the claimant’s criminal
enterprise precluded the imposition of a duty of care. The three primary elements
of an illegality defence were identified by Sir Stuart-Smith (at 72). The harm must
be linked inextricably to the claimant’s criminal enterprise, the defence must be
justified by public policy, and the criminal conduct must be sufficiently serious. ILLEGALI
• It is notable that Stuart-Smith notes that the defence is rooted in public policy - this
essentially means it is a defence which is available to the judiciary to use, rather
TY
than one which the defendant can actively rely upon. Whilst this provides the
judiciary with a lot of discretion, it also allows the defence to be used even when
the defendant has themselves acted poorly. In essence, it allows the court to throw
out a claim because it would be unjust to allow the claimant to use tort law in such
a manner (as in Vellino).
• If an act is done to prevent greater harm, even though the act was done
intentionally, is not actionable and serves as a good defence.
• It should be distinguished with private defence and an inevitable accident.
• The following points should be considered:
• In necessity, the infliction of harm is upon an innocent whereas in case of
private defence the plaintiff is himself a wrongdoer.
• In necessity, the harm is done intentionally whereas in case of an inevitable
accident the harm is caused in spite of making all the efforts to avoid it.  NECESSIT
• For example,  performing an operation of an unconscious patient just to save
his life is justified. 
Y
• In Leigh v Gladstone, it was held that the forcible feeding of a person who
was hunger-striking in a prison served as a good defence for the tort of
battery. 
• In Cope v Sharpe, the defendant entered the plaintiff’s premises to stop the
spread of fire in the adjoining land where the defendant’s master had the
shooting rights. Since the defendant’s act was to prevent greater harm so he
was held not liable for trespass.
• In the case of Carter v. Thomas, the defendant who entered the plaintiff’s
land premises in good faith to extinguish the fire, at which the fire
extinguishing workmen were already working, was held guilty of the
offence of trespass.
• In Kirk v. Gregory, A’s sister-in-law hid some jewellery after the death of
A from the room where he was lying dead, thinking that to be a more safe NECESSIT
place. The jewellery got stolen from there and a case was filed against A’s
sister-in-law for trespass to the jewellery. She was held liable for trespass
Y
as the step she took was unreasonable.