What Are General Defences in Tort? All Types Explained with Case Laws

Meaning and Nature of General Defences

General defences in tort are those defences which, when successfully pleaded, negative or excuse liability even though the plaintiff has established the essential elements of a tort. They are called general defences because they are not confined to one specific tort alone, but are capable of application to a number of tortious actions, subject to their respective requirements.

The chapter of general defences occupies an important place in the law of torts because tortious liability is not absolute. The law, while protecting private rights, also recognizes certain situations in which an act otherwise amounting to a tort is justified, excused, or rendered non-actionable.

General Defences and Special Defences General defences are those which may, in principle, be raised in more than one class of tortious action. Specific defences are those specially associated with a particular tort. For example, truth, fair comment, and privilege belong specifically to defamation. By contrast, volenti non fit injuria, necessity, inevitable accident, and statutory authority belong to the general chapter of tort defences.

1. Volenti non fit injuria / Consent

The maxim volenti non fit injuria means that to a willing person, no injury is done. It embodies the principle that a person who freely and knowingly agrees to run a risk cannot later complain of the very harm flowing from that risk. In tort law, it operates as a complete defence where the defendant proves real consent to the risk that caused the injury.

Forms of Consent

1. Express

Express consent arises where the plaintiff clearly agrees, either orally or in writing, to run the risk.

2. Implied

Implied consent arises from conduct and surrounding circumstances. A spectator at a lawful sporting event, for example, may be taken to consent to those risks which are ordinarily incidental to the sport. The consent, however, extends only to the normal and inherent risks of the activity, not to acts outside its scope.

In Hall v. Brooklands Auto Racing Club, the plaintiff was a spectator at a motor race. A collision occurred and a car was thrown among the spectators, causing injury. The court held that the plaintiff, by attending the race, had impliedly accepted the risks ordinarily incidental to such an event. The defence succeeded because the danger was one naturally connected with the sport.

Wooldridge v. Sumner

The plaintiff, a photographer, was standing near the boundary of a horse-show arena to take photographs. During the competition, the defendant’s horse came around a bend at high speed. The plaintiff became frightened, moved into the course of the horse, and was seriously injured.

The court held that the defendant was not liable, as reasonable care had been taken. In such sporting events, a spectator accepts the ordinary risks connected with the game, including errors of judgment or lapses of skill, unless the participant acts with reckless disregard for safety.

The consent must be free

For the defence of volenti non fit injuria to apply, the plaintiff’s consent must be free, real and informed. Consent obtained by fraud, force, compulsion, misrepresentation, or mistake is not valid consent.

Consent Must Be Limited to the Act Permitted

The defendant must act only within the limits of the consent given. Consent to one act does not authorize a different or excessive act.

For example, if a person is invited into a house, his entry is not trespass. But if he is asked to sit in the drawing room and, without permission, enters the bedroom, he may be liable for trespass. Consent to enter the house does not mean consent to enter every part of the house.

In Lakshmi Rajan v. Malar Hospital Ltd., the complainant had a painful lump in her breast. During the surgery, her uterus was removed without any medical justification. The court held the hospital liable for deficiency in service. Consent for one operation could not be treated as consent for removal of the uterus.

Mere Knowledge Does Not Imply Consent

The maxim is volenti non fit injuria, not merely scienti non fit injuria. This means that knowledge is not the same as consent. A person may know that a situation is risky, but that does not necessarily mean that he has agreed to give up his legal right to claim compensation.

For the defence of volenti non fit injuria to apply, it is not enough to show that the plaintiff knew about the risk. It must also be shown that the plaintiff freely agreed to accept that risk. Therefore, two things must be proved:

1. The plaintiff had knowledge of the risk.
2. The plaintiff voluntarily agreed to suffer the consequences of that risk.

If there is only knowledge of danger, but no voluntary acceptance of that danger, the defence will fail.

Bowater v. Rowley Regis Corporation

The plaintiff was a cart driver. He was ordered by the defendant’s foreman to drive a horse which was known to be likely to bolt. The plaintiff protested, but ultimately obeyed the order. The horse bolted and the plaintiff was injured.

The court held that the defence of volenti non fit injuria was not available. The plaintiff had knowledge of the risk, but he had not voluntarily accepted it. He acted under the pressure of employment and obedience to the order.

Smith v. Baker

In Smith v. Baker, the plaintiff was working on a drill while stones were being moved above his head by a crane. He was generally aware of the danger, but no warning was given at the time when the danger actually occurred. A stone fell from the crane and injured him.

The House of Lords held that the employer was liable. The plaintiff’s general knowledge of the risk did not mean that he had consented to suffer injury.

Dann v. Hamilton

In Dann v. Hamilton, a lady accepted a lift in a car knowing that the driver had consumed alcohol. Due to the driver’s negligent driving, an accident occurred and she was injured.

The defence of volenti non fit injuria was rejected. The court held that the driver’s intoxication was not so extreme and obvious that accepting the lift could be treated as consent to an highly obvious danger.

However, the court also indicated that if the drunkenness is so glaring that taking the lift is almost like exposing oneself to an obvious and extreme danger, the defence may possibly apply.

Limitations on the doctrine of Volenti Non Fit injuria

Rescue Cases

The defence does not ordinarily apply where the plaintiff suffers injury while making a reasonable rescue from danger created by the defendant’s negligence. The law regards rescue as a natural and foreseeable response, not as free consent to the risk.

In Haynes v. Harwood, a policeman was injured while trying to stop runaway horses that had been negligently left unattended by the defendant’s servant. The defence of volenti was rejected. The court treated the plaintiff as a rescuer responding to imminent danger to the public, not as a person who had voluntarily accepted the risk in the legal sense.

Volenti non fit injuria and Contributory Negligence

Volenti non fit injuria is based on consent. If it is established, it ordinarily provides a complete defence.

Contributory negligence is based on the plaintiff’s lack of due care for his own safety. It does not rest on consent, but on fault. In modern law, it usually leads to apportionment or reduction of damages rather than a total bar.

2. Plaintiff the Wrongdoer

The defence commonly described as plaintiff the wrongdoer is based on the maxim ex turpi causa non oritur actio, meaning that no action arises from a dishonourable or unlawful cause. In tort law, the doctrine means that where the plaintiff’s claim is founded on, or is inseparably connected with, his own illegal or seriously wrongful conduct, the law may refuse relief. The defence is founded on public policy.

This defence is based on the principle that a civil claim should not be allowed where it arises out of the plaintiff’s own fault or serious wrongdoing.

Ashton v. Turner

The plaintiff and the defendant had committed a burglary and were escaping in a car driven by the defendant. The defendant drove negligently, the car crashed, and the plaintiff was injured. The plaintiff sued for damages.

The court refused the claim. Since both plaintiff and defendant were engaged together in an unlawful enterprise at the time, the plaintiff could not recover damages for injuries suffered in the course of that joint criminal act.

Pitts v. Hunt

The plaintiff, a 16-year-old boy, willingly rode as a passenger on a motorcycle driven by the defendant, who was also a minor, uninsured, and had been drinking. Both had been drinking together. The motorcycle was being driven dangerously at high speed, an accident occurred, the driver was killed, and the passenger was injured. The passenger’s claim was brought against the defendant’s Estate.

The claim was barred. The court held that where the plaintiff and defendant are participating together in an illegal act, and the injury arises directly out of that illegal conduct, the plaintiff may be denied relief under the doctrine of ex turpi causa non oritur actio.

Limits of the Defence

The defence is not absolute. Mere misconduct by the plaintiff is not enough. The court must find a real nexus between the illegality and the claim. If the defendant owed an independent duty of care and the plaintiff’s unlawful conduct is only part of the background, the defence may fail. This is why some claims by trespassers, burglars, or other wrongdoers have still succeeded where the defendant used excessive force or committed an independent tort.

Revill v. Newbery

The defendant, an elderly man, was sleeping in his garden shed because he feared burglary. The plaintiff, a thief, tried to break into the shed at night through a hole. The defendant fired a shotgun through the hole and injured the plaintiff. The injured thief then sued for damages.

The court held that the defendant was liable. Even though the plaintiff was a wrongdoer i.e trespasser and a wrongdoer, the occupier could not use excessive force in defence of property. The law does not allow a person to shoot blindly at a trespasser merely to protect property.

Bird v. Holbrook

The defendant had placed a spring gun trap in his garden to protect property from trespassers, but he had not given any warning about it. The plaintiff entered the garden and was injured by the trap.

The defendant was held liable. The court said that a person cannot set up a concealed dangerous trap likely to cause serious injury to trespassers without giving notice. Even a trespasser is not outside the protection of law. A landowner may protect property, but cannot use hidden deadly devices without warning.

3. Inevitable Accident

Inevitable accident is a defence in tort which means that the harm complained of was the result of an accident that could not have been prevented by the exercise of reasonable care, caution, and skill. It negatives liability because the injury is treated as one that occurred without intention and without negligence.

Nature of the Defence

The foundation of this defence is the absence of fault. The defendant relies on the position that the act causing the injury was not intentional, was not negligent, and that the consequences could not reasonably have been avoided even by a prudent and careful person. An inevitable accident is therefore not simply an accident in the ordinary sense. Many accidents occur because of negligence. The defence applies only where the accident is truly unavoidable despite due care. Every inevitable accident is an accident, but every accident is not an inevitable accident.

In Holmes v. Mather, the defendant’s horses, while being driven carefully on the highway, were suddenly startled by a barking dog and bolted, causing injury to the plaintiff. It was held that the defendant was not liable because the accident was unavoidable despite reasonable care.

Stanley v. Powell

During a shooting party, the defendant fired at a pheasant, but the bullet glanced off a tree and struck the plaintiff. The court held that there was no negligence and that the injury was the result of an inevitable accident.

Brown v. Kendall

The defendant was trying to separate two fighting dogs with a stick. While doing so, he accidentally struck the plaintiff in the eye and caused injury.

The court held that the defendant would not be liable if he had acted with ordinary care and prudence. Since the act was lawful and the injury was accidental, liability would arise only if the defendant had been negligent. Accidental harm during a lawful act is not actionable unless negligence is proved.

4. Act of God

Act of God, also described as vis major, is a defence in tort based on the principle that a person is not liable for damage caused solely by extraordinary natural forces which no human foresight could reasonably anticipate and no human care or skill could prevent. It is a narrow defence.

The law does not excuse liability merely because the immediate cause was a natural event; the natural event must be so exceptional, overwhelming, and unconnected with human fault that the damage is treated as beyond legal responsibility.

Essential Requirements

For this defence to succeed, three features must ordinarily be present.

1. The event must arise from natural causes.
2. The natural event must be extraordinary, unexpected, and such that it could not reasonably be anticipated.
3. The damage must occur without human intervention, negligence, or other contributing fault on the part of the defendant.

Nichols v. Marsland

The defendant had created artificial ornamental lakes by damming a natural stream. There had been no negligence in their construction or maintenance. Then an unprecedented and extraordinary rainfall, described as beyond anything in living memory, caused the artificial embankments to burst, and the escaping water damaged the plaintiff’s property. The court held the defendant not liable, treating the rainfall as an Act of God.

Kallu Lal v. Hemchand

A wall collapsed due to rainfall and caused death. The defence of the Act of God was rejected because the rainfall was not shown to be so extraordinary as to qualify as an Act of God.

5. Private Defence / Self-Defence

Private defence, or self-defence, is a defence in tort by which a person may lawfully use reasonable force to protect his own person, another person, or in appropriate cases his property, against an unlawful attack or threatened attack. The defence rests on the principle that the law does not require a person to remain passive in the face of immediate danger. At the same time, the force used must remain within lawful limits.

Cockcroft v. Smith

The plaintiff put his finger toward the defendant’s eye, and the defendant responded by biting off part of the plaintiff’s finger. The case is cited for the principle that self-defence permits only such force as is reasonably necessary; force that is grossly excessive is not protected. The reaction must be defensive, not disproportionate.

6. Necessity

Necessity is a defence in tort by which an act that would otherwise amount to a tort is excused or justified because it was reasonably done to prevent a greater harm. The defence rests on the principle that the law may permit an intentional interference with person, property, or rights where the circumstances create an immediate danger and the defendant acts to avert that danger.

It is therefore a defence founded on emergency and pressure of circumstances.

Nature of the Defence

Necessity differs from accident. In necessity, the defendant acts deliberately, but does so under compulsion of circumstances in order to prevent a more serious mischief. The interference is intentional, yet the law may treat it as justified because the purpose is protective rather than wrongful.

Leigh v. Gladstone

A standard authority on necessity in relation to trespass to the person is Leigh v. Gladstone. A prisoner on hunger strike was forcibly fed by prison authorities. The defence of necessity was accepted because the act was done to preserve life and health.

Cope v. Sharpe

Cope v. Sharpe is the classic tort case on necessity in relation to trespass to land. The defendant entered the plaintiff’s land in order to prevent the spread of fire from the plaintiff’s land to adjoining land in which the defendant’s master had shooting rights. The court held that the entry was justified because it was reasonably necessary to prevent an imminent and greater danger.

7. Statutory Authority

Statutory authority is a defence in tort under which an act that would otherwise amount to a tort is excused because it has been authorized by statute. The underlying principle is that where the legislature has expressly or impliedly sanctioned the doing of a particular act, the person acting within the scope of that authority is not liable for the consequences that are the inevitable result of carrying out the statutory mandate.

Nature of the Defence

The defence does not mean that every act done by a public body or statutory undertaker is automatically protected. The protection extends only so far as the statute authorizes the act, either expressly or by necessary implication. If the act goes beyond the statute, or if the damage results from negligence in the manner of performing the act, the defence fails. Statutory authority therefore protects the authorized act, but not carelessness, excess, or abuse in carrying it out.

In Vaughan v. Taff Vale Railway Co., sparks from the defendant railway company’s engine set fire to the plaintiff’s woods on adjoining land.

The railway company was authorised by statute to run trains. It was also proved that the company had taken proper care to prevent the escape of sparks.

The court held that the company was not liable, because it was doing only what the statute authorised it to do, and the damage was incidental to the authorised use of the railway.

Hammersmith Railway Co. v. Brand

In Hmmersmith Railway Co. v. Brand, the value of the plaintiff’s property decreased due to noise, vibration, and smoke caused by trains running on a railway constructed under statutory powers.

The court held that no action would lie, because such inconvenience was a necessary consequence of running trains, which had been authorised by statute.

Smith v. London and South Western Railway Co. - Negligence Not Protected

The railway company’s servants negligently left grass and hedge trimmings near the railway line. Sparks from a passing engine set the material on fire, and the fire spread to the plaintiff’s cottage, which was burnt.

The railway company was held liable because the damage was caused by negligence. The statute authorised the running of trains, but it did not authorise negligent conduct.