Law of Torts
The General Defences in Tort: The Complete Map, and the Defences That Are Not Defences at All
A defence concedes that the elements of the tort are present and answers them; a denial says they were never there. The distinction decides who carries the burden of proof, and it is the reason inevitable accident behaves so differently from volenti non fit injuria. This note maps the whole field: the defences founded on the plaintiff's consent, those founded on his own conduct, those founded on the event that caused the harm, those founded on justification, those founded on the defendant's status, and the things regularly listed as defences which are nothing of the kind. Each of the major defences is then taken up in its own note.
The six families of general defence, and where the burden of proof sits
1. Defence or Denial
- The plaintiff proves the elements of the tort. In negligence that means duty, breach, causation and damage; in trespass it means the direct and voluntary interference.
- The defendant proves a defence. Volenti non fit injuria, private defence, necessity and statutory authority must each be pleaded and proved by him.
- A denial is different. Inevitable accident is in substance an assertion that the plaintiff has failed to prove negligence, and the exercise of a common right is an assertion that no legal right of the plaintiff was violated at all.
- The practical consequence is who loses on a tie. Where the evidence is evenly balanced, the party carrying the burden loses, and that is why the classification matters in practice and not merely in theory.
- A defence must also be pleaded. A defence not raised in the written statement will ordinarily not be entertained, whereas a denial is available on the general issue.
2. The Consent Based Defences
The defence | What it requires | Where it is treated |
Volenti non fit injuria | Knowledge of the risk, agreement to run it, and that the agreement was free and voluntary | TORT 018 |
Leave and licence | Consent to the act itself, as in surgery, a lawful entry on land, or a contact sport | TORT 018 |
Consent in medical treatment | Informed consent to the nature and purpose of the procedure and its material risks | TORT 018 |
Consent obtained by fraud or compulsion | Not a defence at all: the consent is vitiated | TORT 018 |
3. The Conduct Based Defences
The defence | What it does | Where it is treated |
Plaintiff the wrongdoer | Ex turpi causa non oritur actio: no action arises from a base cause, where the plaintiff must rely on his own illegality | TORT 019 |
Contributory negligence | Reduces the damages in proportion to the plaintiff's own share of the fault; it does not defeat the claim | TORT 026 |
Novus actus by the plaintiff | An unreasonable act of the plaintiff breaking the chain of causation | TORT 024 |
4. The Event Based Defences
- Inevitable accident is an accident that could not have been avoided by the exercise of ordinary care, caution and skill. It answers a claim founded on fault and does not answer strict or absolute liability.
- Act of God, or vis major, is an operation of natural forces alone, so extraordinary that no human foresight could reasonably anticipate it. It is a recognised exception to the rule in Rylands v. Fletcher.
- Neither answers absolute liability under M.C. Mehta v. Union of India, (1987) 1 SCC 395, which admits of no exception, nor the statutory no fault schemes, which do not ask about fault at all.
- Both are dealt with in TORT 020.
5. The Justification Based Defences
The defence | The essentials | Where it is treated |
Private defence | Reasonable and proportionate force, against an imminent threat to person or property | TORT 021 |
Private necessity | A real and imminent danger, and an act reasonably necessary to avert it; the defendant ordinarily pays for the damage | TORT 021 |
Public necessity | The same, where the danger is to the community; a complete defence at common law | TORT 021 |
Statutory authority | The harm was the inevitable result of doing what the statute authorised | TORT 022 |
6. The Status Based Defences
- Judicial acts. The Judicial Officers Protection Act, 1850 protects a judicial officer from suit for any act done in the discharge of his judicial duty within his jurisdiction, or believing in good faith that he had jurisdiction. Judges of the superior courts have the wider common law protection.
- Parental and quasi parental authority. A parent, and a schoolmaster standing in loco parentis, may use reasonable and moderate correction and restraint. The authority is limited by reasonableness, and excess makes the act a battery.
- Executive and statutory immunities. Section 86 of the Code of Civil Procedure, 1908 for foreign States; the Diplomatic Relations (Vienna Convention) Act, 1972 for diplomatic agents; Section 18 of the Trade Unions Act, 1926 for registered trade unions in a trade dispute; and Article 361 of the Constitution for the President and the Governors.
- These are dealt with in TORT 015, alongside the capacity of artificial and public persons.
7. The Things That Are Not Defences
Commonly listed as a defence | Why it is not one |
Mistake, of fact or of law | Ordinarily no defence. A person who takes goods honestly believing them his own is liable in conversion; one who enters land believing it his is a trespasser |
Motive, however good or bad | Irrelevant. A lawful act does not become unlawful from a bad motive, and an unlawful act is not excused by a good one: Bradford Corporation v. Pickles |
The exercise of a common right | Not a defence but a denial. Lawful competition, building on one's own land and abstracting percolating water are damnum sine injuria, so no defence is needed |
Acting in the public interest | Not by itself a justification. It matters only where it is an element of a recognised defence such as necessity or statutory authority |
That the plaintiff suffered no great loss | Irrelevant to liability. Where a right is violated, injuria sine damno applies and the action lies |
That the defendant was insured | Irrelevant. Insurance affects who ultimately pays, not whether a tort was committed |
8. A Defence Against One Tort May Not Answer Another
⚠ Always check the defence against the particular tort alleged The general defences are general only in the sense that they are not confined to a single tort. Each still has to be tested against the tort actually pleaded. Inevitable accident answers negligence, because it denies the very thing the plaintiff must prove, and does not answer the rule in Rylands v. Fletcher, where fault is irrelevant. Act of God answers Rylands v. Fletcher, being one of its five recognised exceptions, and does not answer absolute liability, which has no exceptions. Statutory authority answers nuisance only so far as the nuisance was the inevitable result of what the statute authorised, and never answers negligence in the doing of it. Volenti does not answer a breach of a statutory duty imposed for the plaintiff's protection. The question is never simply whether the defence exists, but whether it meets this claim. |
9. The Position Stated Shortly
1. A defence concedes the elements of the tort and answers them; a denial asserts that they were never present.
2. The plaintiff proves the elements; the defendant proves a defence, and must plead it.
3. The consent based defences are volenti non fit injuria and leave and licence, and consent obtained by fraud or compulsion is no consent at all.
4. The conduct based defences are the plaintiff the wrongdoer, contributory negligence, and an unreasonable act of the plaintiff breaking the chain.
5. The event based defences are inevitable accident, which answers claims founded on fault, and act of God, which is an exception to Rylands v. Fletcher.
6. The justification based defences are private defence, private and public necessity, and statutory authority.
7. The status based defences are judicial acts under the Act of 1850, parental and quasi parental authority, and the statutory immunities.
8. Mistake, motive, the exercise of a common right, acting in the public interest and the defendant's insurance are not defences.
9. Neither inevitable accident nor act of God answers absolute liability under M.C. Mehta, which admits of no exception.
10. Every defence must be tested against the particular tort alleged, because a defence that answers one may not answer another.