General Defences under Law of Torts: A discussion

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What is Torts?

‘Tortum’ a Latin word, meaning ‘Twisted’, this is where torts are derived from. Torts are also uncodified judicial precedents which considered of a wrongful act resulting in a legal injury. Legal injury is those injuries which are caused due to infringement of legal rights. It works on the principle that everything should work in a straight-forward manner, and when someone deviates from it, it is considered as twisted or wrong, hence the word Torts. There are two parties in a Torts case;

  • Tortfeasor: The person or party that has committed the tort.
  • Injured: The person or party that was caused legal injury by the tortfeasor.

In tort, a legal injury does not restrict to only physical injury, it also includes violation of property, violation of privacy, emotion and mental injuries, reputational injuries, economic injuries and infringement of legal rights.

Essentials of Torts

For an act/omission to be considered as Torts, the following elements must be fulfilled:

  1. There must be a wrongful act.
  2. Legal damages to the plaintiff.
  3. Legal Remedy.

1. Wrongful act: 

Not every wrongful act is considered as torts. For an act to be considered as torts, the tortfeasor has to infringe the Private rights of a person. For example; Right to Privacy is a Private Right that can be infringed through trespassing. Right to live with Dignity is also a private that that can be infringed by saying Derogatory terms (Defamation). Even not doing an act can be considered under torts, it is called a Negative act or Negligence. Negligence occurs when the tortfeasor is supposed to perform his duty but he chooses not to, resulting in legal injury to the person. It comes under Breach of Duty.

2. Legal Damages to the Plaintiff:  

Firstly, we need to understand the difference between ‘legal injuries’ and ‘legal damages’.

  • Legal Injury is the infringement of your Legal Rights.
  • Legal Damage is the loss of comfort or money or any physical damage.

Tort believes in two latin maxims; Injuria sine Damnum and Damnum sine Injuria.

  • Injuria sine Damnum means “injury without damage”, or in layman terms when any act from the accused has infringed your legal right but did not create any loss of comfort or money or any physical damage. One of the most popular cases for this is Ashby vs White1, in this case, Ashby went to a polling station to cast vote for his candidate, the defendant White stops him from casting his vote but despite this, the candidate Ashby wants to vote, wins the election. Ashby later sues White, White takes the defence that there was no legal damage to Ashby. The court decided that even though there were no legal damages, still legal injury has been caused. Voting is the legal right of every citizen, stopping him to vote is causing legal injury to him.
  • Damnum sine Injuria is the vice versa of the former. It means “Damage without Injury”, when any act from the accused has caused damages to the person in the form of loss of comfort or monetary or physical injury but not any infringement of legal rights. In such cases, the defendant would not be liable. Case of Gloucester grammar School2 can help us understand this, in this case, the defendant was a former school teacher at Gloucester grammar School, he was very famous amongst students. Later, he decides to quit his job from that school and set up a new one just next to Gloucester grammar School. As he was famous in the former school, all the student from that joined the new school opened by the School teacher. The plaintiff sued him for monetary loss. The court after listening to the facts found out that the defendant (school teacher) will not be liable, even though monetary losses have been caused to the plaintiff because no legal rights of the plaintiff have been violated.

After looking at both cases, we can find that for the tort to be committed, there must be a violation of legal rights or both legal rights and legal damages. 

3. Legal Remedy: 

‘UBI JUS IBI REMEDIUM’ is Latin maxim, which means, ‘Where there is a Right, there is a Remedy’. By this, we can understand that everybody has a private right and those private rights are protected. If everyone has a right that means everyone also has a duty to respect each other right and If someone infringes those rights, there will be a remedy for the plaintiff. For example; X has a private right to live with comfort, If Z tries to infringe his private rights by blowing unnecessary horn inside his house, he can be sued by X for nuisance. In the case of torts, the remedy is mostly in the form of unliquidated damages. In some cases, remedies can be given in the form of punitive damages penalizing the tortfeasor or set an example for others.

General defences under Law of Torts

We have already established that the primary objective of Torts is to protect Private rights, but we also know that not all wrongful act is considered as Torts, to distinguish that, these are some of the general defences used under Law of Torts.

1. Volenti non-fit Injuria:   

Also popularly known as ‘Defence of Consent’. It works on the principle that, if someone voluntarily wants to incur harm then there is no remedy for it. We already know that legal remedy is one of the elements of Torts, but if someone gives consent to someone to cause damage to him then there is no sense of taking a remedy. If a right is waived by a person then he cannot enforce it. For example, if X tells his friend Z throws his mobile into the garbage because he does not want to use it, and Z threw that mobile into the garbage and that mobile gets unusable, then X can not sue Z, as he has given his consent to Z to threw his mobile.

The only catch with volenti non fit injuria is that the consent given by the person should be free. Consent as per Contract Act is said to be free when it is not caused by coercion or undue influence or fraud or misrepresentation or mistake3.

Two points have to be proved, for this maxim to be applied i.e.

  • Plaintiff has the knowledge of risk
  • Plaintiff agreed to suffer the harm.

In Bowater vs Rowley Regis corporation4, Bowater was a cart driver, who was asked by one of the people employed by Defendant to drive a horse which they know have a tendency to bolt. Bowater did not want to drive it but to respect the order he agreed to do so. The horse bolted as usual and Bowater got injured and sued the defendant. The defendant pleads for the defence of volenti non fit injuria. The court said that volenti non fit injuria can not be applied as both Bowater and the defendant have the knowledge of the risk and free consent was not available because Bowater’s consent was affected due to undue influence.

2. Inevitable Accidents:  

Accidents occur when there is no intention of harming but still harm is caused. Accidents which cannot be stopped, which are supposed to happen and can neither be foreseen nor be avoided despite taking reasonable care and due diligence are known as Inevitable Accidents. For example; if someone fires a bullet at a distant tree, and after hitting the tree the bullet rebounds and hits someone, it will be considered as Inevitable accidents as the act was not intentional, no one could have foreseen the consequences of the act and it could not have been avoided. 

But if such an act can be avoided through reasonable foresight, it would not be considered as Inevitable Accident as in the case of S. Vedantacharya and Another v/s Highways Department of South Arcot and Others5, a public transport vehicle was plunged into the stream as the culvert over which it was passing gave away. Plaintiff’s son died in that accident and hence the plaintiff sued the owner of the vehicle, the insurance company and the Highway Department of Tamil Nadu. The defendant took the defence of Inevitable accidents as due to heavy rain and the stream the culvert gave away. The Supreme Court dismissed the High Court’s order and states that it was the duty of Highway Department to look whether the stream and the rain could have weakened the culvert and hence it could have been avoided. Hence, the defence was rejected.

3. Plaintiff the Wrongdoer:  

If someone violates another person’s private right, then he is liable to under Torts, but what if the person committing the wrongful act is the plaintiff himself? In such a scenario, there won’t be any Tortious liability, it works on the principle of ex turpi causa non oritur action, meaning no action arises from an immoral cause. 

4. Mistake:  

It is one of the weakest defence because a mistake of fact or law is no defence. Ignorantia of law is no excuse. Even stating that the act was done without any intention to cause harm is also no excuse, as we can see in the case of Consolidated Co. vs Curtis and Sons6the defendant was an auctioneer who mistakenly sold the goods of the plaintiff, believing that it belongs to another customer but in fact, it belongs to the Plaintiff. Plaint filed a suit against him, he took the defence of mistake, but the courts state the defendant liable for the act.

As we know Torts is not codified and hence judgements are always unexpected and purely on the discretion of the judges. Hence, there are only a few exceptions where an honest but mistaken belief have saved defender from the liability.

5. Act of God: 

Act of God or in Contracts as we known as Force Majeure is the act that occurred Naturally. Natural acts are those acts in which there is no human intervention, a human can not predict it accurately, humans cannot prevent it and humans can not foresight it. An act of God is as same as inevitable accidents (Force Majeure), the only difference being that an act of God is specific to natural acts.

In the case of Nichols vs. Marsland7, the defendant owned an artificial ornamental lake, the one-day lake was flooded due to unusually heavy rainfall resulting in damaging of county bridges. The court held that there is no negligence, it is an act of god and the defendant could not have done anything to prevent it.

6. Necessity: 

One of the most heard moral dilemmas is that, will you harm an innocent person to save 100 people from getting any harm? In torts, if you do that, you can plead for the defence of necessity. In such a scenario harming one person is saving 100 of people which is ethically beneficial for society. Even though harm of private rights is caused intentionally, still it was done for a greater good, as in the case of Cope vs. Sharpe8, the defendant trespassed into the plaintiff’s house to stop the spread of fire to the adjoining land. The court held that, the defendant won’t be liable for trespass, as it was a necessity to save from great danger.

7. Statutory Authority: 

In torts, every person has a private right and those private rights are protected. That means even a person working with his duty as a private right. He has a private right to perform his duty. Hence, in a scenario when a person is infringing someone’s private right to perform his duty, that means that duty comes under his rights and hence he can not be made liable for it. For example; If a Policeman enters into your house without your permission and starts searching for things, he will be liable for trespassing and nuisance but If the same Policeman enters your house with a ‘search warrant’, and starts searching for the things, he won’t be made liable. Because it is his duty given by the Statute, meaning searching your house becomes his rights. 

Even though working as per statutory authority can be used as a defence, it doesn’t mean that authority will do whatever they want in the name of the law. There are guidelines and restriction and even compensation provided under the statute, which should be followed accordingly. Any indiscipline from the side of the person in following those orders can result in him being liable for Torts.

In Hammer Smith Rail Corp. vs Brand9, the value of the plaintiff’s house got decreased due to the noise pollution and vibrations caused by the Rails running on the Railway line constructed under a statutory provision. The court held that the defendant won’t be liable because the railway line was made under statutory provisions. 


1.  Ashby vs White (1703) 92 ER 126

2.  (1410) YB 11 Hen IV, fo. pl. 201, 23

3.  Indian Contract act, 1872, s.14

4.  (1944) K.B. 476.

5.  S. Vedantacharya and Another v/s Highways Department of South Arcot and Others Civil Appeal No. 532(N) of 1973

6.  Consolidated Co. vs Curtis and Sons (1892) 1 QB 495

7.  Nichols vs. Marsland (1876) 2 ExD 1

8.  Cope vs Sharpe [1912] 1 KB 496

9.  Hammer Smith Rail Corp. vs Brand [1869] LR 4 HL 171


Aniket Kotnala

Student, Manipal University, Jaipur

Aniket has a keen interest over criminology and criminal trials. He’s exploring his interests in the field of law and wants to become a great criminal litigator. For any Clarifications, feedback, and suggestion, you can reach him at

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