conventionally means those arguments which when used persuades the Court to
conclude that the defendant in a case is not guilty. General defence under
torts can be used in three ways:
it is the denial of the commission of the torts or of the components which
constitute a tort. It can be done by either denying a tort has been committed
or by denying that the necessary components of torts have been committed.
Here the verdict is in favour of the defendant even though all the ingredients
of a tort are committed. A defendant who wishes to use this rule does not stay
away from liability by denying the allegations being put on him but does so by
going around it. Positive defence includes complete privilege, abuse of
procedure, arrest, distress, honest opinion, immunity, limitation bars,
necessity, qualified privilege, the recapture of land or chattels, res judicata
when a defence is used in this relation it encompasses the principle that
limits the relief which is entitled to a plaintiff. Some remedy limiting rules
cut back the plaintiff’s entitlement to damages, such as the provision for
apportionment for contributory negligence and the doctrine of mitigation of
damage. Others avoid the plaintiff from relishing particular remedies
completely. Examples of the latter type of remedy limiting or restricting rule
include the doctrines of laches and acquiescence. The law favours those who are
vigilant and not those who slumber. However, it is important to remember that
in this case the defendant is not absolved of liability like the previous two
Non Fit Injuria (Defence of Consent)
If the plaintiff gives free consent to the wrongful act, expressly or
impliedly, under no pressure of coercion or fraud, with voluntary
acceptance of risk, then he has no right to sue the defendant. Also,
there should be a duty on behalf of others.
Example: A person who goes to the stadium to attend a game,
if gets hit by a ball then it is understood that he was well aware that such a
situation can occur and voluntarily took the risk, hence, he risked himself
knowingly and therefore, cannot claim damages.
the plaintiff is the wrongdoer
this principle is based on the legal maxim ex turpi causanon
oritur actio that is if the plaintiff himself is conducting a wrongful
act, then he cannot recover damages. But if a defendant proclaims that claimant
himself or herself is the wrongdoer and not eligible or entitled to the
damages, then it does not mean that the Court will declare him free from the
Inevitable Accident is the act which could not be prevented despite taking any
degree of care, caution, and skill by an ordinarily prudent man.
Law: Stanley v. Powell- The plaintiff was employed to carry cartridge
for a shooting party when they had gone pheasant-shooting. A member of the
party fired at a distance but the bullet, after hitting a tree, rebounded into
the plaintiff’s eye. When the plaintiff sued it was held that the defendant was
not liable in the light of the circumstance of inevitable accident.
A very rare act or an event which is unusual, and is the result of the natural
forces such as earthquakes, volcanic eruptions, floods, droughts, etc. is
coined as Act of God or ‘Vis Major’. It is beyond human thoughts and could not
be prevented by human intervention. Essentials: Act should be a result of natural forces, there should
be no human intervention and the act should be extraordinary in nature.
Case Law: Nichols v. Marshland- The defendant had a number of artificial lakes on his land. Unprecedented rain or rains that were not expected such as had never been witnessed inactive memory caused the banks of the lakes to burst and the escaping water carried away four bridges belonging to the plaintiff. It was held that the plaintiff’s bridges were swept by an Act of God and the defendant was not liable.
in relation to Private Defence
When a defendant tries to protect his body or property or any other person’s
body or property and in this course harms another person by using reasonable
force, under an imminent-danger and where there is no sufficient time to report
instantly to the public authority, it is Private Defence. The harm done should
be proportional to the nature or degree of the danger.
Essentials: Imminent Danger and Proportional Force.
Law: Bird and Holbrook- This case deals with the defence of protection
of property. Holbrook, the defendant set up a spring-gun trap in his garden to
catch an intruder who had been stealing from his garden. He did not post a
warning. Bird, the petitioner chased an escaped bird into the garden and set
off the trap, suffering serious damage to his knee. Bird sued Holbrook for
damages. It was held that while setting traps or “man traps” can be valid as a
deterrent when notice is also posted, the defendant’s intent was to injure
someone rather than scare them off. Hence, he was held liable.
When an act is done under a mistaken belief in a said situation, the defendant
can plead the defence of mistake. There are two types of mistakes:
of Law: Not a defence in the civil or criminal case.
of Fact: Not valid in torts.
When to prevent a greater harm, the defendant causes lesser harm, it is justified in its nature. The act of the defendant may not be legal but if it is to avoid major damage then he can plead this defence.
Essentials: Act done to avoid significant harm and the caused
harm should be justified.
Law: Olga Tellis & Ors. v. Bombay Municipal Corporation- The State
of Maharashtra in 1981 and the Bombay Municipal Corporation decided to evict
the pavement dwellers and those who were residing in slums in Bombay. The
eviction was to progress under Section 314 of the Bombay Municipal Corporation
Act, 1888. The Supreme Court of India although refused to conclude that the
expelled inhabitants were entitled to an alternative site, it ordered that:
one has the right to encroach on trails, sidewalks or any other place reserved
for public purposes.
provision of Section 314 of the Bombay Municipality Act is not unreasonable in
the circumstances of this case.
must be provided to censored residents in 1976.
existing for 20 years or more should not be removed unless the land is required
for public purposes and, in this case, alternate sites must be provided.
priority should be given to resettlement.
act done in respect of Statutory Authority
If the act is done
under the guidance of an authority or a law is passed by the legislation, then
the injured person cannot claim damages from the defendant as he cannot be said
to be liable for the damages resultant to the course of such an act.
Example: There is a railway track near your house and the
noise disturbs you, you cannot claim damages as the construction and the use of
the railways is authorized under a statute. However, the authorities cannot do
anything they want; they must act in a reasonable manner.
Law: Kasturi Lal v. State of UP- The plaintiff had been arrested by the
police officers on a suspicion of possessing stolen property. On a search of
his person, a large quantity of gold was found and was seized under the
provisions of the Code of Criminal Procedure. Ultimately, he was free, but the
gold was not handed as the Head Constable in charge of the Malkhana (wherein
the said gold was stored) had absconded with the gold. The plaintiff thereupon
brought a suit against the State of UP for damages for the loss caused to him.
The Supreme Court rejected the claim of the plaintiff, on the ground that the
act of negligence was committed by the police officers while they were dealing
with the property of Ralia Ram (plaintiff), which they had seized in the
exercise of their statutory powers.