When a plaintiff brings an action against the defendant for a particular tort or violation of legal right, resulting in legal damages, and successfully proves the essentials of a tort, the defendant is held liable.Even in such cases, the defendant can avoid his liability by taking the plea of the defenses available under the law of torts.
Some defences are particularly relating to some offences. In the case of defamation, the defences available are fair comment, privileges and justification, etc.

When a plaintiff brings an action against the defendant for a tort committed by him, he will be held liable for it, if there exists all the essential ingredients which are required for that wrong. But there are some defences available to him using which he can absolve himself from the liability arising out of the wrong committed. These are known as ‘General defences’ in the law of tort.

1)Volenti non fit injuria

It is a Latin maxim, which means that the person who voluntarily gives consent for any harm to suffer would not be liable to claim any damages for the same.
In case, a plaintiff voluntarily suffers some harm, he has no remedy for that under the law of tort and he is not allowed to complain about the same. The reason behind this defence is that no one can enforce a right that he has voluntarily abandoned or waived. Consent to suffer harm can be express or implied.
When a person consent to the infliction of some harm upon himself, he has no remedy for that in tort.
In Hallv. Brooklands Auto Racing Club,

the plaintiff was a spectator of a car racing event and the track on which the race was going on belonged to the defendant. During the race, two cars collided and out of which one was thrown among the people who were watching the race. The plaintiff was injured. The court held that the plaintiff knowingly undertook the risk of watching the race. It is a type of injury which could be foreseen by anyone watching the event. The defendant was not liable in this case.
In Padmavati v. Dugganaika,

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.It was held that neither the driver nor his master could be made liable, firstly because it was a case of sheer accident and secondly strangers had voluntarily got into the jeep and as such volenti non fit injuria was applied.

The consent must be free
For this defence to be available it is important to show that the consent of the plaintiff was freely given.
If the consent was obtained under any compulsion or by fraud, then it is not a good defence.
The consent must be given for an act done by the defendant.
For example, if you invite someone to your house for dinner and he enters your bedroom without permission then he will be liable for trespass.

In the case of Lakshmi Rajan v. Malar Hospital,

a 40 year old married woman noticed a lump in her breast but this pain does not affect her uterus. After the operation, she saw that her uterus has been removed without any justification. The hospital authorities were liable for this act. The patient’s consent was taken for the operation not for removing the uterus.
If a person is not in a condition to give consent then his/her guardian’s consent is sufficient.

Consent obtained by fraud
Consent obtained by fraud is not real consent and does not serve as a good defence.

In Hegarty v. Shine,

it was held that mere concealment of facts is not considered to be a fraud so as to vitiate consent. Here, the plaintiff’s paramour had infected her with some venereal disease and she brought an action for assault against him. The action failed on the grounds that mere disclosure of facts does not amount to fraud based on the principle ex turpi causa non oritur actio i.e. no action arises from an immoral cause.

Consent obtained under compulsion
There is no consent when someone consents to an act without free will or under some compulsion.
It is also applicable in the cases where the person giving consent does not have full freedom to decide.
This situation generally arises in a master-servant relationship where the servant is compelled to do everything that his master asks him to do.
Thus, there is no applicability of this maxim volenti non fit injuria, when a servant is compelled to do some work without his own will.
But, if he himself does something without any compulsion then he can be met with this defence of consent.

Mere knowledge does not imply assent
For the applicability of this maxim, the following essentials need to be present:
The plaintiff knew about the presence of risk.
He had knowledge about the same and knowingly agreed to suffer harm.
In the case of Bowater v. Rowley Regis Corporation,a cart-driver was asked to drive a horse which to the knowledge of both was liable to bolt. The driver was not ready to take that horse out but he did it just because his master asked to do so. The horse, then bolted and the plaintiff suffered injuries. Here, the plaintiff was entitled to recover.

In Dann v. Hamilton,

a lady even after knowing that the driver was drunk chose to travel in the car instead of any other vehicle. Due to the negligent driving of the driver, an accident happened which resulted in the death of the driver and injuries to the passenger herself. The lady passenger brought an action for the injuries against the representatives of the driver who pleaded the defence of volenti non fit injuria but the claim was rejected and the lady passenger was entitled to get compensation. This maxim was not considered in this case because the driver’s intoxication level was not that high to make it obvious that taking a lift could be considered as consenting to an obvious danger.
This decision was criticized on various grounds as the court did not consider contributory negligence while deciding the case but the court’s reason for not doing so is that it was not pleaded that is why it was not considered.
A driver’s past negligent activities do not deprive him of this remedy if someone travels with the same driver again.

Negligence of the Defendant
The defence of volenti non fit injuria is not applicable in a case where the defendant has been negligent. Thus only where there is no negligence by the defendant, he can claim this defence to escape liability.
Illustration: If A goes undergoes a heart operation and he gives his consent for it even though he knows that there is a risk of the operation failing which can cause his death, the surgeon will not be liable if A dies as a result of the surgery if he had taken all due care. But if the operation had failed because of the negligence in carrying out the surgery then in such a case, the surgeon cannot claim the defence of having received the consent of A and he will be liable because there was negligence on his part in conducting the surgery.

Burden of proof

In the cases where the defendant is taking the defence of volenti non fit injuria, the burden of proof is on him to show that the plaintiff had full knowledge of the act and he had consented to the risk involved in the act and the defendant has to show that the plaintiff was also aware of the extent of risk which was involved in the act for successfully taking this defence.
Illustration: A has to undergo an operation for his eye infection and the doctor fails to inform him about the risk of losing his vision due to the operation, as a result, A takes the operation believing that there is no such risk to his eye. In the operation, if A loses his eyesight, the doctor will be held liable because A did not have the knowledge about the extent of the risk which was involved in the operation and therefore, the defence of volenti non-fit injuria cannot be taken.

Scienti Non Fit Injuria

But only having knowledge about the risk is not enough for the application of this defence, It is known as Scienti non fit injuria, which means that mere knowledge does mean consent to the risk. Thus having knowledge is only a partial fulfilment of the conditions for the application of volenti non fit injuria.
Illustration: A goes for bungee jumping and he knows that he might get injured by it but he still decides to do it and as a result, he suffers injury despite all the necessary care being taken by the organisers. Here A cannot claim damages from the organisers because he had full knowledge of the risks and he had voluntarily agreed to suffer that injury by choosing to do bungee jumping.

Limitations of the maxim

Rescue Cases
When the plaintiff suffers an injury as a result of him doing an act which he knows is likely to cause harm to him but it is an act to rescue someone, then this defence will not apply and the defendant will be held liable.
Illustration: A fire is caused due to the negligence of A, and B is trapped inside the fire. C sees B and jumps into the fire to rescue him but in doing so he is also burned. Here even though C went into the fire voluntarily, knowing fully well that he may be burned, A will be held liable for negligence and the defence of volenti non fit injuria cannot be applied in this case, therefore, C will is entitled to receive damages from A.

Illegal Acts
If the consent is given for an act which is not allowed by law then, even on the fulfilment of all the essential conditions of this defence, the liability cannot be escaped and thus in such cases, this defence becomes inoperative.
Illustration: If A and B decide to do a fight with sharp swords, when such an act is prohibited by law, and A suffers a big cut due to which he suffers serious injuries, then in such case B cannot take the defence of having A’s consent in doing this act because it was prohibited by law and thus B will be liable.

The law excuses the defendant when the act done by the plaintiff itself was illegal or wrong. This defence arises from the Latin maxim “ex turpi causa non oritur action” which means no action arises from an immoral cause. So an unlawful act of the plaintiff itself might lead to a valid defence in torts. This maxim applies not only to tort law but also to contract, restitution, property and trusts. Where the maxim is successfully applied it acts as a complete bar on recovery. It is often referred to as the illegality defence, although it extends beyond illegal conduct to immoral conduct. This defence though taken very rarely has been in debate for a long time.

2)When plaintiff is the wrongdoer

The law excuses the defendant when the act done by the plaintiff itself was illegal or wrong. This defence arises from

the Latin maxim “ex turpi causa non oritur action”

which means no action arises from an immoral cause. So an unlawful act of the plaintiff itself might lead to a valid defence in torts. This maxim applies not only to tort law but also to contract, restitution, property and trusts. Where the maxim is successfully applied it acts as a complete bar on recovery. It is often referred to as the illegality defence, although it extends beyond illegal conduct to immoral conduct. This defence though taken very rarely has been in debate for a long time.

In the case of Ashton v. Turner and another,

the claimant was injured when the defendant crashed the car in which he was a passenger. The crash occurred after they both had committed a burglary and the defendant, who had been drinking, was driving negligently in an attempt to escape. Justice Ewbank dismissed the claim holding that as a matter of public policy the law would not recognize a duty of care owed by one participant in crime to another. He also added that even if there was a duty of care the claimant had willingly accepted the risk and knowingly sat in the car with the defendant.

In Stone & Rolls a fraudster

used a company of which he was the sole director and shareholder to commit a letter of credit fraud. Following the company’s insolvency, its liquidators, acting in the company’s name, sued its auditors in negligence for having failed to detect the fraud. The House of Lords held (by 3-2) that the claim was barred on the ground ex turpi causa, because the state of mind of the fraudster was to be attributed to the company, which was thus treated as the perpetrator of the fraud.

3) Inevitable Accident

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, 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 injuries. The incident was considered an inevitable accident and the defendant was not liable in this case.

4) Act of God

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, etc.

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 on his land by collecting water from natural streams. Once there was an extraordinary rainfall, heaviest in human memory. The 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 defence of Act of God cannot be pleaded by the appellants in this case as that much rainfall was normal and something extraordinary is required to plead this defence. The appellant was held liable.

5) Private defence

The law has given permission to protect one’s life and property and for that, it has allowed the use of reasonable force to protect himself and his property.
The use of force is justified only for the purpose of self-defence.
There should be an imminent threat to a person’s life or property.
For example, A would not be justified in using force against B just because he believes that some day he will be attacked by B.
The force used must be reasonable and to repel an imminent danger.

6) Mistake

The mistake is of two types:
Mistake of law
Mistake of fact
In both conditions, no defence is available to the defendant.
When a defendant acts under a mistaken belief in some situations then he may use the defence of mistake to avoid his liability under the law of torts.

In Morrison v. Ritchie & Co,

the defendant by mistake published a statement that the plaintiff had given birth to twins in good faith. The reality of the matter was that the plaintiff got married just two months before. The defendant was held liable for the offence of defamation and the element of good faith is immaterial in such cases.
In Consolidated Company v. Curtis,

an auctioneer auctioned some goods of his customer, believing that the goods belonged to him. But then the true owner filed a suit against the auctioneer for the tort of conversion. The court held auctioneer liable and mentioned that the mistake of fact is not a defence that can be pleaded here.

7)Necessity

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:
i.In necessity, the infliction of harm is upon an innocent whereas in case of private defence the plaintiff is himself a wrongdoer.

8)Statutory Authority

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.
In Vaughan v. Taff Valde Rail Co.,

sparks from an engine of the respondent’s railway company were authorized to run the railway, set fire 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:
i. Absolute
ii. Conditional
In the case of Absolute authority, there is no liability if the nuisance or some other harm necessarily results but when the authority is conditional it means that the same is possible without nuisance or any other harm.
In the case of Metropolitan Asylum District v. Hil, 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.

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