Meaning of General Defences 

there are some defences available to him using which defendant can release
himself from the liability arising out of the wrong committed. These are
known as ‘General defences’ in the law of tort. 

The defences available are given as follows:

Volenti non fit injuria

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.

Some examples of the defence are:

 You call somebody to your house

 Consent to a surgical operation
 Consent to the publication of something
 A player in the games is deemed to be ready to suffer
 A spectator in the game.

For the defence to be available the act should not go beyond the limit of
what has been consented.

In Hallv. Brooklands Auto Racing Club [1],

  The court held that the plaintiff knowingly undertook the risk of
watching the race. The defendant was not liable in this case.

In Padmavati v. Dugganaika [2],

The conclusions which came out of this case are:

 The master of the driver could not be made liable as it was a case of
a sheer accident.
 The principle of Volenti non fit injuria  was applicable here.

In Wooldrige v. Sumner[3],

 The defendants were not liable in this case since they had taken due
care and precautions. 

In Thomas v. Quartermaine [4],

.

 The defendant was not liable as the danger was visible to him and the
plaintiff voluntarily did something which caused him injuries. 

In Illot v. Wilkes [5],

 This was not actionable and the defendant was not liable in the case. 

The consent must be free

 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.

In Lakshmi Rajan v. Malar Hospital[6],

 .

 The hospital authorities were liable for this act. The patient’s consent
was taken for the operation not for removing the uterus. 

Consent obtained by fraud

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

In Hegarty v. Shine[7],

 The action failed on the grounds that mere concealment of facts does
not amount to fraud based on the principal ex turpi causa non oritur
actio i.e., no action arises from an immoral cause.
 In some criminal cases, it has been held that mere submission to an
intercourse does not imply consent,
 if the submission had been procured by fraud which induced mistake in
the mind of the victim as to the real nature of the act done.
In R. v. Wiliams[8],

 Here, the girl misunderstood the very nature of the act done with her
and she consented to the act considering it a surgical operation to
improve her voice.

In R. v. Clarence[9],

 the wife was fully aware of the nature of that particular act.

Consent obtained under compulsion or Coercion

 consents to an act without free will or under some compulsion.

 person giving consent does not have full freedom to decide.

This situation generally arises in a master-servant relationship. Thus,

there is no applicability of this maxim volenti non fit injuria.
  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.

 knowingly agreed to suffer harm.

In the case of Bowater v. Rowley Regis Corporation[10],

 a cart-driver was asked to drive a horse which to the knowledge of

both was liable to run away suddenly from fear.
 Here, the plaintiff was entitled to recover.

In Smith v. Baker[11],
  The defendants were negligent as they did not inform him. the
defendants were liable for this.  The maxim volenti non fit injuria did
not apply. 

In Dann v. Hamilton[12],

 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.

Negligence of the defendant

In order to avail this defence, it is necessary that the defendant should not
be negligent. If the plaintiff consents to some risk, then it is presumed that
the defendant will not be liable. 

For example, if the operation becomes unsuccessful due to the surgeon’s

negligence, then in such cases, he will be entitled to claim compensation.

In Slater v. Clay Cross Co. Ltd.[13],

  the plaintiff suffered injuries due to the negligent behaviour of the
defendant’s servant while she was walking along a tunnel.
 The company knew that the tunnel is used by the public and
 had instructed its drivers to give horns and drive slowly whenever
they enter a tunnel.
 But the driver failed to do so.
 It was held that the defendants are liable for the accident.

Limitations on the doctrine’s scope

The scope of the maxim volenti non fit injuria has been curtailed in the
following cases:

 Rescue cases
 The Unfair Contract Terms Act, 1977

In these cases, even if the plaintiff has done something voluntarily but he
cannot be met with the defence of ‘consent’ i.e. volenti non fit injuria.

Rescue cases

 When the plaintiff voluntarily comes to rescue someone from a

danger created by the defendant then in such cases the defence of
volenti non fit injuria will not be available to the defendant.

In Haynes v. Harwood[14],
  This being a rescue case so the defence of volenti non fit injuria was
not available and the defendants were held liable.

In Wagner v. International Railway[15],

 The railway company was liable as it was a rescue case.

In Baker v. T.E. Hopkins & Son[16],

 The defendants pleaded volenti non fit injuria. It was held that the act
of the rescuer was the natural and probable consequence of the
defendant's wrongful act which the latter could have foreseen, and, the
defendants were, thus, held liable.
In  Hyett v. Great Western Railway Co.[17],

 The plaintiff’s acts seemed to be reasonable and the defendant was

held liable in this case.

Unfair Contract Terms Act, 1977 (England)

The Unfair Contract Terms Act, 1977, limits the right of a person to exclude
his liability resulting from his negligence in a contract. 

Negligence Liability

 Sub-section 1 puts an absolute ban on a person’s right to exclude

his liability for death or personal injury resulting from the negligence
by making a contract or giving a notice. 
 Sub-section 2 is for the cases in which the damage caused to the
plaintiff is other than personal injury or death. In such cases, the
liability can only be avoided if a contract term or notice satisfies the
reasonability criteria.
  Sub-section 3 says that a mere notice or agreement may be enough
for proving that the defendant was not liable but in addition to that
some proofs regarding the genuineness of the voluntary assumption
and plaintiff’s consent should also be given.

Volenti non fit injuria and Contributory negligence 

 In the defence of contributory negligence, both are liable – the

defendant and the plaintiff, which is not the case with volenti non fit
injuria.
 In volenti non fit injuria, the plaintiff knows the nature and extent of
danger which he encounters and
 in case of contributory negligence on the part of the plaintiff, he did
not know about any danger.

Plaintiff the wrongdoer

 There is a maxim “Ex turpi causa non oritur actio” which says that
“from an immoral cause, no action arises”. 
 If the basis of the action by the plaintiff is an unlawful contract, then
he will not succeed in his actions and he cannot recover damages.

In Bird v. Holbrook[18],

 the plaintiff was entitled to recover damages suffered by him due to

the spring-guns set by him in his garden without any notice for the
same. 
In Pitts v. Hunt[19],

 This plea was rejected as he himself was the wrongdoer  in this case.

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.

In Stanley v. Powell[20],

 The incident was considered an inevitable accident and the defendant

was not liable in this case. 

In Assam State Coop., etc. Federation Ltd. v. Smt. Anubha Sinha[21],

  it was held that this was the case of an inevitable accident and the
tenant is not liable. 

In Shridhar Tiwari v. U.P. State Road Transport Corporation[22],

 This was held to be a case of inevitable accident. The defendant i.e.

U.P.S.R.T.C. was held not liable for this act. 

In the case of Holmes v. Mather[23],

 This makes it a case of an inevitable accident and the defendants were

held not liable for the incident.

In Brown v. Kendall[24],
  The incident was purely an inevitable accident for which no claim
could lie. So, the court held that the defendant is not liable for the
injuries suffered by the plaintiff as it was purely an accident.

In Padmavati v. Dugganaika[25]

The conclusions which came out of this case are:

 The master of the driver could not be made liable as it was a case of
a sheer accident and the strangers had voluntarily got into the
vehicle. 

In Nitro-Glycerine case[26],

 The defendants were held not liable for the same as the same could
not be foreseen.
In Oriental Fire & General Ins. Co. Ltd. v. Raj Rani[27],

 the front right spring and other parts of a truck broke all of a sudden
and the driver could not control it
 and dashed into a tractor that was coming from the opposite
direction.
 The court held that this case comes under negligence and has nothing
to do with the inevitable accident and the defendant was liable.

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[28].
  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.
 extraordinary occurrence

Working of natural forces

In Ramalinga Nadar v. Narayan Reddiar[29],

 It cannot be considered to be an Act of God and the defendant,

In Nichols v. Marsland[30],

 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[31],

 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.

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.

 The force used must be reasonable and to repel an imminent

danger.

 For the protection of property also, the law has only allowed taking
such measures which are necessary to prevent the danger.
For example, fixing of broken glass pieces on a wall, keeping a fierce dog,
etc. is all justified in the eyes of law.

In Bird v. Holbrook[32],

 The court held that this act of the defendant is not justified and the
plaintiff is entitled to get compensation for the injuries suffered by
him. 

in Ramanuja Mudali v. M. Gangan[33],

 The defendant was held liable in this case and the use of live wires is
not justified in the case.
In Collins v. Renison[34],

 the plaintiff went up a ladder for nailing a board on a wall in the

defendant’s garden.
 The defendant threw him off the ladder and when sued he said that he
just gently pushed him off the ladder and nothing else.
 It was held that the force used was not justifiable as the defence.

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 Consolidated Company v. Curtis[36],

 The court held auctioneer liable and mentioned that the mistake of
fact is not a defence that can be pleaded here. 
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:

 In necessity, the infliction of harm is upon an innocent

 whereas in case of private defence the plaintiff is himself a
wrongdoer.
 In necessity, the harm is done intentionally
 whereas in case of an inevitable accident the harm is caused in
spite of making all the efforts to avoid it. 

For example, performing an operation of an unconscious patient just to save

his life is justified. 

In Leigh v. Gladstone [37],

 it was held that the forcible feeding of a person who was hunger-
striking in a prison served as a good defence for the tort of battery. 
In Cope v. Sharpe [38],

 Since the defendant’s act was to prevent greater harm so he was held
not liable for trespass.

In Carter v. Thomas [39],

 at which the fire extinguishing workmen were already working, was

held guilty of the offence of trespass.
In Kirk v. Gregory [40],

 She was held liable for trespass as the step she took was
unreasonable.

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.

In Vaughan v. Taff Valde Rail Co. [41],

 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. 

In Smith v. London and South Western Railway Co. [43],

  The court held that the railway authority was negligent in leaving the
grass hedges near the railway line and the plaintiff was entitled to
claim compensation for the loss suffered.

Absolute and conditional authority

The authority given by a statute can be of two types:

 Absolute
 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[44],

 Considering it a nuisance an injunction was issued against the

hospital. The authority, in this case, was conditional.