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INTRODUCTION

The Law of Torts is a concept that has been evolving through the ages. This ever dynamic evolution
of tort law has been the mater to many principles under which tortuous liability can be demanded.
Simultaneously, certain other principles are used, to counter these claims for compensation. These
counter claims that are used to evict those innocent citizens from tortious liability, who have been
unfairly implicated with actions imposed on them are called Defences in Tort Law or Justification of
Torts. In other words, Defences in Tort Law refer to rules that, when enlivened, result in a verdict in
favour of the defendant even if all of the ingredients of the tort that the plaintiff contends was
committed against him, are present. These defences were formulated from time to time in order to
keep up with the very reason of imposition of tortious liability on an individual- i.e., creating a sense
of deterrence while keeping up with the basic values of justice.
In the words of Sir Frederick Pollock, these Defences in Tort Law are:
The rules of immunity which limit the rules of liability. There are various conditions which, when
present, will prevent an act from being wrongful which in their absence would be a wrong. Under
such conditions the act is said to be justified or excused. And when an act is said in general terms
to be wrongful, it is assumed that no such qualifying conditions exists.
Winfield and Jolowicz explained Defences as:
A claimant who fails to prove the necessary ingredients of the particular tort or torts on which he
relies will, of course, fall in his action. Even if he does prove these ingredients, however, he may
still fail if the defendant shows that he is entitled to rely upon some specific defence. Some of these
defences are peculiar to particular torts. These defences are called specific defences. While other
defences are broader in scope and can be applied by a defendant on a more pervasive scale as a
defence to various torts. These defences are called general defences.

Types of defences to various torts:


A. SPECIFIC DEFENCES:
These are defences which are peculiar to particular torts. For example:
I.
II.

In an action for trespass, the defences of license or justification by law are available.
In an action for defamation, the defences of privilege or fair comment are available.

B. GENERAL DEFENCES:
These are defences which may be taken against action for a number of torts. For example:
I.

Consent

This defence is based on the principle of Volenti non fit Injuria. A person, who has
voluntarily agreed to suffer harm, cannot claim damages for such harm. This consent to suffer
harm can be either express or even implied. However, such consent must be given freely and
not obtained by fraud or any other illegal means.
II.

Plaintiff, the wrongdoer

This defence is based on the maxim Ex turpi causa non oritur actio which means no action
rises from an immoral cause. So, when the action of the plaintiff is unlawful itself, it might
lead to a defence in general.
III.

Inevitable accident

Inevitable accident is such where the injury could not have been avoided inspite of reasonable
care on part of the defendant. In a suit for tort it is always a good defence if it can be shown
that the defendant could not avoid the injury sustained by the plaintiff inspite of his
reasonable effort.
IV.

Act of God

An Act of God is an inevitable accident arising out of the working of natural forces which is
beyond human control and unprecedented in nature and type. It must be extraordinary and
unanticipated as well.
V.

Private defence

In case of imminent threat to life or property, use of force for defence of the same is justified.
However, use of such force must be reasonable and should be in proportion to the
requirement.
VI.

Statutory authority

Any damage arising out of an act that the law prescribes or the statute
authorises will never become actionable even though in absence of such
statutory authority it is an offence in tort.
VII.

Necessity

Under dire conditions if one does something which results in a tort then once can claim the
defence of necessity. Such conditions should however be able to come under the bracket of
general good or greater good and to prevent a bigger harm.

For the purpose of this assignment, I shall elaborate on the


INEVITABLE ACCIDENT
In the words of Shaw C.J. of Massachusetts Supreme Court:
Inevitable accident is an accident such as the defendant could not have avoided by the use of kind
and degree of care necessary to the exigency and in the circumstances he was placed
Sir Frederick Pollock explained the defence of inevitable accident as:
It does not mean absolute inevitable, but it means not avoidable by any such precaution as a
reasonable man, doing such an act then and there, could be expected to take.
As observed by Greene, M.R., an inevitable accident is :

One out of the ordinary course of things, something so unusual as not to be looked for by a
person of ordinary prudence.
From the above statements, it can be inferred that, an inevitable accident, or unavoidable accident,
is that which could not possibly be prevented by the exercise of ordinary care, caution and skill. It
refers to an accident that is physically unavoidable.
All causes of inevitable accident may be divided into two classes:
1.

Those which are occasioned by the elementary forces of nature unconnected with the agency
of man or other cause. The term Act of God is applicable to them.
2. Those which have their origin either in the whole or in part in the agency of misfeasance, or
in any other causes independent of the agency of natural forces.
If in prosecution of a lawful act, done with care, an accident happens, no action lies from an injury
arising therefrom.
Important cases regarding the defence of inevitable accident are:
I.

Fardon v. Harcourt Rivington (1932) 146 LT 391.


Facts of the case- The defendant was traveling in a motor car with his dog. He parked his
motor car in the street and left his dog inside the shut car. The dog had no vicious propensities
and was always quiet and docile. As the plaintiff passed by the side of the car, the dog which
had been barking and jumping about in the car, smashed a glass panel and splinter entered in
to one of the eyes of the plaintiff which then, had to removed. The plaintiff sued the defendant
for damages.
Judgement- Lord Dunedin did not hold the defendant liable. He stated that:
This is such an extremely unlikely event that I do not think any reasonable man could be
convicted of negligence, if he did not take into account the possibility of such an
occurrence and provide against it either by not leaving the dog in the car or by tying it up
so that it could not reach the window. People must guard against reasonable probabilities,
but they are not bound against fantastic possibilities..

II.

Nitro-glycerine case (1872) 15 Wall 524.


Facts of the case- The defendants, a firm of carriers, received a wooden case to be carried to
its destination and its contents were not communicated. On an intermediate station, t was
found that the contents were leaking. The case was, therefore, taken to the defendants offices,
which they had rented from the plaintiff, and a servant proceeded to open the case for
examination, but the nitro-glycerine which it contained, exploded. All the persons present
were killed and the building was damaged. An action was brought by the landlord for
damages suffered by parts of the building let to other tenants as well as to the defendants.
Judgement- It was held that, in the first place, the defendants were not bound to know, in the
absence of reasonable ground of suspicion, the contents of packages offered to them for
carriage, and that, without such knowledge in fact and without negligence, they were not
liable for damage caused by the accident.

III.

Padmavati v. Dugganaika (1975) 1 Kam. L.J. 93 : 1975 A.C.J. 222.

Facts of the case- Two strangers took lift in a jeep. Shortly afterwards, one of the bolts fixing
the right front wheel of the jeep to the axle gave way and the wheel flew away from the axle.
The jeep was toppled, the two strangers got serious injuries resulting in the death of one of
them. An action was brought for damages suffered by the plaintiff.
Judgement- It was found that it was a case of sheer accident, as there was no evidence to
show that the defect was a patent one and could have been detected by periodical check-up.
The defendant, i.e., the driver of the jeep and his master, were therefore, not held liable.
IV.

Shridhar Tiwari v. U.P. State Road Transport Corporation (1987) ACJ 636
Facts of the 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.
Judgement- It was found that at the time of the accident, both the buses were being driven at a
moderate speed and the accident had occurred despite due care on the part of the drivers of
both the buses. It was held that it was an inevitable accident and ,therefore, the defendant
corporation was not held liable for the same.

From the above cases, it is evident that the defence of inevitable accident is not really a defence but
only a denial of liability, for the defendant has committed no tort. In cases of absolute liability,
inevitable accident is no excuse unless it assumes the form of an Act of God. It therefore, seems that
the defence of inevitable accident is no longer useful in the law of torts.

ACT OF GOD
Winfield and Jolowicz defined an Act of God as:
Where an act is caused (harmful to a party) directly by natural causes without human
intervention in circumstances which no human foresight can provide for and against and of which
human prudence is not bound to recognize the possibility, the Act of God as defence can be
applied.
Halsburys Laws of England explained the defence as:
An Act of God, in the legal sens, may be defined as an extraordinary occurrence of circumstance,
which could not have been foreseen and which could not have been guarded against, or more
accurately, as an accident due to a natural cause, directly and exclusively, without human
intervention, and which could not have been avoided by any amount of foresight and pains and
care reasonably to be expected of the person sought to be made liable for it, or who seeks to excuse
himself on the ground of it. The occurrence need not be unique, nor need it be one that happens
for the first time; it is enough that it is extraordinary, and such as could not reasonably be
anticipated and it must not arise from the act of man.
From the above statements, it can be inferred that 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. There are exactly two
important essentials that are needed for this defence:
a) There must be working of natural forces.
b) The occurrence must be extraordinary and not one which could be anticipated and
reasonably guarded against.
Important cases regarding the defence of Act of God are:
I.

Nichols v. Marsland (1876) 2 Ex. D. 1.


Facts of the case- The defendant created some artificial lakes on his land by damming
some natural streams. Once there was an extraordinarily 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. An action was
brought by the plaintiff for the damages suffered by him against the defendant.
Judgement- Since the rainfall was extraordinarily heavy and could not be anticipated, it
was held that the defendants were not liable as the loss had occurred due to Act of God.

II.

Kallulal v. Hemchand A.I.R. 1958 Madh. Pra. 48.


Facts of the case- The wall of a building collapsed on a day when there was a rainfall of
2.66 inches. That resulted in the death of the respondents two children.
Judgement- 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.

PRIVATE DEFENCE
It is human instinct to repel force by force, and this natural instinct has got judicial as well as statutory
recognition. Every person, therefore, has a right to defend his own person, property or possession
against an unlawful harm. This may even be done for a wife or husband, a parent or child, a master or
servant. However, in defending, the force must be in proportion to the apparent urgency of the
situation. The question of private defence may be considered under two headings:
a) Defence of Person
When a man strikes at another, the party struck is justified in using such a degree of
force as will prevent a repetition. However, the force employed must not be out of
proportion to the apparent urgency of the occasion. The test is whether the defendants
act was such as he might reasonably, in the circumstances, think necessary for the
prevention of harm. The necessity must be proved. Moreover, injuries received by an
innocent third person from an act done in self-defence must be dealt with as accidental
harm caused from a lawful act.
b) Defence of Property
Every person is entitled to protect his property. But he cannot for this purpose do an
act which is injurious to his neighbour. The means adopted to protect ones property

must be reasonable i.e. proportionate to the injuries which they are likely to inflict.
Broken glass or spikes on a wall or a fierce dog with a visible warning sign may be
justified on this principle but not deadly implements like spring guns or live electric
wire of high voltage to dissuade trespassers.
Important cases regarding Private Defence are:
I.

Turner v. Jagmohan Singh (1905) ILR 27 All. 531.


Facts of the case- A vicious stallion repeatedly attacked on a road a pair of mares belonging
to the carriage in which the defendant was being driven, and finally it came into the
defendants compound in spite of attempts made to prevent him. It continued its attacks
until the defendant got hold of a spear and inflicted a somewhat severe wound on the left
hind quarter of the animal. The stallion subsequently died from the effects of the spear
wound.
Judgement- Since there was real and imminent danger to the defendants mares, the
defendants actions were justifiable with regard to the circumstances and therefore,the
owner of the stallion was not entitled to any damages.

II.

Bird v. Holbrook (1823) 4 Bing. 628; 130 E.R. 91.


Facts of the case- The plaintiff was a trespasser as he climber over the defendants wall in
pursuit of a fowl. However, the defendant had put up spring guns in his garden without
fixing any notice about the same and the trespasser was seriously injured by its automatic
discharge. An action was brought by the trespasser against the defendant for the damages so
suffered.
Judgement- It was held that the plaintiff was entitled to recover compensation as the force
used here was greater than the occasion demanded.

NECESSITY
Three types of cases fall under the defence of necessity:
i.
ii.
iii.

Cases of public necessity


Cases of private necessity
Cases where assistance is given to a third person without his/her consent as a matter of
necessity.

Cases of public necessity are based on the maxim salus populi suprema lex (the welfare of the people
is the supreme law). This maxim was founded on the implied assent of every member of the society,
that his own individual welfare shall, in cases of necessity, yield to that of the community and that his
property, liberty and life shall, under certain circumstance, be placed in jeopardy for the public good.
And no cause of action will arise from that. In other words, an act causing damage, if done under
necessity to prevent a greater evil is not actionable even though harm was caused intentionally.
Necessity is distinguished from private defence because in necessity, there is an infliction of harm on
an innocent person whereas in private defence, harm is caused to a plaintiff who himself is the

wrongdoer. Necessity is also different from inevitable accident as in necessity, the harm is an intended
one, whereas in inevitable accident, the harm is caused in spite of the best effort to avoid it.
Important cases regarding the defence of Necessity are:
I.

Cope v. Sharpe (1891) 1 k.b. 496.


Facts of the case- The plaintiff let the shooting rights over his land to one C. A fire broke
out on the land, and while the plaintiffs men were endeavouring to beat it out, the
defendant, who was the gamekeeper of C, entered the plaintiffs land to prevent the
spread of fire to the part of the shooting where there were some nesting pheasants of his
master. The fire was ultimately extinguished by the plaintiffs men and an action for
trespass was brought against the defendant.
Judgement- Since the defendants act was considered to be reasonable necessary to save
the game from real and imminent danger, it was held that the defendant was not liable for
trespass.

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 tort. When an act is done, under the authority of a law, it
is a complete defence and the injured part has no remedy except for claiming such compensation as
may have been provided by the statute. The principle is that the act is not wrongful, not because it is
for a public purpose but because it is authorised by the legislature. The underlying philosophy behind
statutory authority is that lesser private right must yield to greater public interest.
The statutory authority extends not merely to the act authorised by the statute but to all inevitable
consequences of that act. No action can lie either for the harm directly caused by statutory authority or
the harm that is incidental to the exercise of such authority. However, the powers conferred by the
legislature should be exercised with judgement and caution so that no unnecessary damage is done. If
the damage could have been prevented by reasonable exercise of powers conferred, an action can be
maintained.
Important cases regarding the defence of statutory authority are:
I.

Allen v. Gulf Oil Refining Ltd. (1981) 1 All E.R. 353 (HL)
Facts of the case- The defendant, an Oil company, which had constructed a large oil
refinery was sued by the plaintiff who lived in the neighbourhood of the refinery for
damages alleging that the operation of the refinery was a nuisance. Nuisance was claimed
by the plaintiff due to continuous noise, vibration and smell emanating from the refinery.
It was also claimed that the vast complex of jetties and railway lines completely
dominated the small village in which the plaintiff inhabited and that it caused them a lot
of difficulties in their daily functioning.
Judgement- The defendant company pleaded statutory immunity under the Gulf Oil
Refining Act, 1965 and this plea was decided in favour of the defendants by the House of
Lords.