GENERAL DEFENCES

• Act done in certain special circumstances are not torts,

that is, in absence of those circumstances the same act
may become a tort.
• Act done in such circumstances are known as
defences of tort or justification of torts. General
defences are a set of defences or ‘excuses’ that you
can undertake to escape liability in tort.
• Following are general defences taken by defendant as
follows:
(1) Volenti –non-fit- injuria or
defence of consent

(2) Act of God

(3) Inevitable Accident

(4) Necessity
 (5) Private Defence

(6) Statutory Authority

(7) Mistake

(7) Plaintiff, the wrongdoer

(1) Volenti –non-fit- injuria or defence of consent
 Meaning of above maxim is “Harm suffers with consent is not
actionable”.
 It means that if the person by his own will and wish ready to
suffer harm then no action can be brought against a person
who caused injury. Consent is of two kinds. First Express
consent and second implied consent. Express consent means
consent given in written or oral form on other hand implied
consent means consent can be inferred from conduct of parties
and which need not be express. If a person operates by doctor
it means that he has given implied consent to cut his part of
body so as cure from
 Consent is of two kinds.
1. Express and
2. Implied
 Express consent means consent given in written or oral
form o
implied consent means consent can be inferred from
conduct of parties and which need not be express.
If a person agrees to be operated upon by doctor it means
that he has given implied consent to cut his part of body so
as cure from the disease.
In the same way if player enters into a ground it means that he is
aware about the risk while playing the game that some injury
might be caused to him if accident occurs. Hence harm suffers
with consent is not actionable in court of law.

Consent to suffer the harm may be express or

implied. It can be inferred from the conduct of
the parties.
Express Consent
 Illustration:

When you send an invitation card and invite somebody to your

house, you cannot sue him for trespass; or When you submit
yourself for surgical operation, you cannot sue the hospital
authorities for doing the same.

Implied Consent
 A player in the games of cricket, hockey, rugby or boxing is
deemed to be agreeing to any hurt which may be likely in the
normal course of the game.
Essentials of Defence
Consent must be free;

Consent cannot be given to an illegal act;

Knowledge of risk is not the same thing as

consent to run the risk
Consent must be given freely
The consent is not free if it has been obtained by
undue influence, coercion, fraud , misrepresentation,
mistake or the like elements which adversely affect a
free consent.

Imperial Chemical Industries Ltd. V. Shatwell,

(1964) 3 WLR 329 (HL)

The plaintiff was employed by the defendant on a

barge, and plaintiff received injuries owing to the
breaking of a defective rope by which the barge was
being pulled. It was held that there was no implied
consent to bear the risk on the part of the plaintiff as
he had no knowledge of the defective rope.
Is there any difference between misrepresentation and fraud

Yes

no
Hall v. Brooklands Auto-Racing Club,
(1933) 1 KB 205
 The plaintiff was a spectator at a motor car race being held at
Brooklands on a track owned by the defendant company.

During the race, there was collision between two cars, one of
which was thrown among the spectators, thereby injuring the
plaintiff.

It was held that the plaintiff impliedly took the risk of such
injury, the danger being inherent in the sport which any
spectator could foresee, the defendant was not liable.
Arthur v. Anker, [1996] 3 All ER 783,
[1997] QB 564

 A motorist, who parked his car on his private land

after having been given notice that the landowner
objected and might clamp his wheels, was deemed
to have consented when this occurred.
Murray v. Harringay Arena Ltd [1951] 2 All ER 320

The defendants were held not liable where a young spectator was
struck in the eye by a hockey puck.

Padmavati v Dugganaika (1975)

While the driver was taking the jeep for filling petrol in the tank,
two strangers took a lift in the jeep . Suddenly one of the bolts
fixing the right front wheel to the axle gave way toppling the jeep.
The two strangers were thrown out and sustained injuries and one
of them died as the consequences of them.

It was held in this case that neither the driver nor his master could
be made liable, firstly it was a case of sheer accident and secondly,
the strangers had voluntarily got into the jeep and as such the
principle of volenti –non-fit –injuria was applicable to the case
Following are the essentials of defence of
consent

(a) Express or implied consent

(b) Knowledge of risk involved in the thing

(c )Both a and b

(d ) None of the above

Wooldrige v. Sumner(1963)2 Q.B 43

In this case plaintiff, who was a photographer , was taking

photographs at a horse show while he was standing at the
boundary of the arena. One of the horses belonging to the
defendant, rounded the bend too fast. As the galloped furiously ,
the plaintiff was frightened and fell into the horse course and
there he was seriously injured by the galloping horse. The horse
in question won the competition, it was held that since the
defendant has taken due care, they will not be liable. The
spectator in the game or competition takes the risk of such
damage.
b. Consent cannot be given to an
illegal act

No consent can legalize an unlawful act or an act which is

prohibited by law.

.
Consent Obtained by fraud

Consent obtained by fraud is not real and that

does not serve as a good defence . In the first
Irish case of Hegarty v Shine, it has , however
been held that mere concealment of facts may
not be such a fraud as to vitiate consent. There ,
the plaintiff’s paramour had infected her with
venereal disease and she there fore brought an
action for assault . The action failed partly on
the ground that mere non-disclosure of the
disease by the plaintiff was not such a fraud as
to vitiate consent.
Concealment of facts amount to fraud

Yes

no
R v Williams

The accused a music teacher, was held

guilty of rape when he had sexual
intercourse with a girl student of 16
years of age under the pretence that this
act was in operation to improve her
voice. If on the other hand, the mistake
which the fraud induces is not such
which goes to the real nature of the act
done, it cannot be considered to be an
element as vitiating the consent.
Exceptions to the Maxim

1. Unlawful Acts
2. Breach of Statutory duty
3.Rescue cases
4. Negligence
Illustration for illegal act and Volenti non fit
injuria
a person engages in illegal street racing and crashes
their car, sustaining injuries as a result. The other driver
involved in the accident may still be held liable for any
injuries that the illegal street racer suffers, even if the
illegal street racer voluntarily assumed the risk of harm
by engaging in illegal activity. This is because the
defendant’s conduct in engaging in street racing was
also illegal and was a contributing factor to the accident.
Breach of a statutory duty and defence of volenti non fit
injuria.
Wheeler v New Merton Board Mills Ltd [1933] 2 KB 669
An eighteen-year-old workman was working at a machine for
cutting cardboard with revolving sharp knives and, whilst
collecting the shavings, the machine cut off his fingers and hand.
The machine was a dangerous machine that should have been
fenced and/or guarded pursuant to the Factory Workshop Act
1901, and the employer was in breach of his obligation to do so.
It was submitted that the employee was aware that the machine
could have been stopped by a lever whilst he was collecting the
shavings, yet never did so. Still the defendant (employer) was
held liable.
Consent obtained under
Compulsion

Consent given under the circumstances when the

person does not have freedom of choice is not the
proper consent. A person may be compelled by some
situation to knowingly undertake some risky work,
which if he had a free choice, he would not have
undertaken. That situation arises only in a master-
servant relationship
Knowledge of risk is not the same thing
as consent to run the risk

Smith v. Charles Baker & Co, [1891] AC 325

 In this case, the plaintiff worked in a cutting on the top of

which a crane of ten jibbed carrying heavy stone over his head
while he was drilling the rock face in the cutting.

 Both he and employers knew that there was a risk of stones

falling, but no warning was given to him of the moment at
which any particular jibbing commenced.

A stone from the crane fell upon him and injured. The House
of Lords held that defendants were liable.
Negligence of the defendant
For the defence to be available , it is further necessary that
the act dome must be the same to which the consent has been
given.

 Thus, if while playing hockey , I am injured while the

game is being lawfully played, I can’t claim anything
from any other player because I am deemed to have
consented to the incidents of the game I have gone to
play.

In case, another player negligently or deliberately hits

me with a stick, I can definitely make him liable and he
can’t plead voenti non fit injuria because I never
consented to an injury being caused in that manner.
 When the plaintiff consents to take some risk,
the presumption is that the defendant will not be
negligent.

 If I submit to the surgical operation, I have no

right of action if the operation is unsuccessful. But if
the operation is unsuccessful because of the
surgeons negligence, I can bring an action against
him for that. To what I consented was not his
negligence
Slater v Clay Cross Co. Ltd
(1956)

In this case , the plaintiff was struck and injured by

train by the defendants servant while she was
walking along a narrow tunnel on a railway track
which was owned and occupied by the defendants.
The company new that the tunnel was used by the
members of the public and had instructed its drivers
to whistle and slow down when entering the tunnel .
The accident had occurred because of the drivers
negligence in not observing those instructions, it was
held in this case that defendants were liable
Exception to the rule
(1) Rescue Cases

Doctrine of assumption of risk does not apply where

plaintiff has under an exigency caused by
defendant’s wrongful misconduct, consciously and
deliberately, faced a risk, even of death to rescue
another from imminent
danger of personal injury or death, the defence of
leave and licence is not applicable to the plaintiff,
whether the person endangered was one to whom he
owed a duty of protection as a member of his family,
or was a mere stranger to whom he owed no such
duty.
Haynes v. Harwood, (1935) 1 KB
146

 The defendant negligently left his horses unattended in a

crowded street, a boy threw a stone at them and they ran
helter-skelter. The plaintiff, constable on duty, perceiving the
danger to the lives of the persons, ran out and stopped the
horses but was seriously injured.

 It was held, That he was entitled to recover damages, as the

defendant was grossly
negligent, and

That the defence of Volenti non fit Injuria was held not to
apply to the rescue cases, the act of a third party also
intervening and the voluntarily undertaking the risk by the
plaintiff were not open to the defendant
Dr. J N Srivastava v. Ram Bihari Lal
and Others, AIR 1982 M.P. 132

The doctor observed after opening the

abdomen cavity that patient’s appendix was
all right but the operation of Gall-bladder
was needful. He proceeded with the
operation- later on the patient died. The
Court held that it was not possible to seek
the consent for the Gall-bladder operation.
In such circumstances doctor was not
responsible.
Baker v. T.E. Hokins and Sons,
 A well was filled with poisonous fumes of a petrol driven
pump on account of negligence of the employer, as a result of
which two workmen were overcome by fumes. Dr. Baker was
called to rescue their lives but he was told not to enter the well
in view of the risk involved. Still he preferred to enter the well
with a view to save their lives. In the attempt of saving them he
himself was overcome by the fumes and he died.

The widow of Dr. Baker sued the employer to claim

compensation for her husband’s death. The defendants pleaded
Volenti non fit Injuria.

It was held that the act of rescuer was the natural
consequence of the defendant’s negligent act which he could
have foreseen and therefore, the defence of Volenti non fit
Injuria did not apply. The defendants were, thus, held liable.
(2)Unfair Contract Terms Act , 1977 (England)

Unfair Contract Terms Act 1977 limits the right of a person to

restrict or exclude his liability resulting from his negligence
by a contract term, or by notice. Section 2 of the Act
contains the following provisions in this regard.

“ Negligence Liability” (1) A person cannot by reference to

any contract term or to a notice given to person generally or
to particular persons exclude or restrict his liability for death
or personal injury resulting from negligence.
(2) In the case of other loss or damage , a person cannot so
exclude or restrict his liability for negligence except in so far
as the term or notice satisfies the requirement of
reasonableness.
(3) When a contract term or notice purports to exclude or
restrict liability for negligence , a person’s agreement to or
awareness of it is not of itself to be taken as indicating his
voluntary acceptance of any risk
Distinction between Volenti Non Fit
Injuria & Contributory Negligence
 In case of Volenti Non Fit Injuria, the plaintiff is
always aware of the nature and extent of the danger
which he encounters, while it is not so in case of
Contributory negligence.

Volenti Non Fit Injuria is a complete defence,

whereas in contributory negligence the claim of the
plaintiffs is reduced to the extent the claimant himself
was to blame for the loss.
2. Act of God/Vis Major
• This is quite similar to the defence of inevitable
accidents.
• Act of God can be instituted whenever there has been
the working of natural forces in causing an event,
which could not have been reasonably
expected/anticipated or guarded against, resulting in
an injury to the plaintiff.
• 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.
 Act of God may be defined as-

 “circumstances which no human foresight can

provide against any of which
human prudence is not bound to recognise the
possibility, and which when
they do occur, therefore, are calamities that do not
involve the obligation of
paying for the consequences that result from them”.
Act of God is a valid defence under law of
torts

Yes

no
Greencock Corporation v. Caledonian Railway
Co. (1917)

 This defence is available ‘in circumstances

which no human foresight can provide against, and
which human prudence is not bound to recognize
the possibility.’

llustrations: The falling of a tree, a flash of

lightening, a tornado, storms,
tempests, tides, volcanic eruptions, or a flood
Nichols v. Marsland

The defendant had created some artificial lakes on

his land. On a day of heavy rainfall (so much so that
it had broken previous records of rainfall), the
plaintiff’s 4 bridges were washed away by the water
overflowing from those artificial lakes. In this case,
the defendant was not held liable for damages as it
fulfilled the two conditions required for the Act of
God i.e. the rainfall was a natural force and it fell in
extraordinary amount.
The essential conditions of
this defence are:

There must be working of natural forces without

any intervention from human agency, and

The occurrence must be extraordinary and not

one which could be anticipated and reasonably
guarded against.
Nicholas v. Marshland, (1875) 2
KB 297
 The defendant constructed three artificial lakes which were
fed by a natural stream. The lakes were well constructed and
adequate in all normal circumstances.

 An extraordinary rainfall burst the banks of artificial lakes

on the defendant’s property and the floodwater destroyed a
number of bridges owned by the county council.

 It was held that the defendant was not negligent and the
accident was due to an act of God.
In Green-cock Corporation v.
Caledonian Railway Co. (1917)

the House of Lords criticized the use of defence in

Nicholas.

 In modern times the defence will rarely, if ever,

be successful, for with increasing knowledge the
limits on the foreseeable have increased
dramatically.
OCCURANCE MUST BE EXTRAORDINARY

In Kallulal v Hemchand AIR 1958 MP 48, the wall

of a building collapsed on a day when there was a
rainfall of 2.66 inches. That resulted in the death of
the respondents two children . The Madhya Pradesh
High Court held that defendant could not take the
defence of the Act of God in this case, as that much
of rainfall during the rainy season was not something
extraordinary but only such as ought to have been
anticipated and guarded against. The appellant was
therefore held liable.
In Ramalinga Nadar v. Narayan Reddiar AIR
1971 Ker 197, 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.
3. Inevitable Accident
 An ‘inevitable accident’ is that which could not
possibly, be prevented by the exercise of ordinary
care, caution and skill.

Krishna Patra v. Orissa State Electricity Board,

AIR 1997Orissa 109

The Orissa High Court defined ‘Inevitable accident’ as

an event which happens not only without the
concurrence of the will of the man, but in-spite
of all efforts on his part to prevent it.
Stanley v. Powell, (1891) 1 QB 86
The plaintiff, who was engaged in carrying
cartridges and game for the party, was hit
by a shot fired by the defendant while on
an organised pheasant shoot when the
shot glanced off a tree before hitting the
plaintiff.

It was held that the defendant was not

liable.
National Coal Board v. Evans,
(1951) 2 KB 861
In this case a colliery company preceded the
National Board, had buried an electric cable in the
county council’s land. The county council’s
contractor damaged the cable while excavating land
and the fact that electric cable was buried under the
land was not known to the council or contractor.

It was held that in these circumstances, neither the

council nor the contractor would be liable for
damage of cable and the defence of inevitable
accident was allowed.
Assam State Cop, etc Federation Ltd v
Smt Anubha Sinha

the premises belonging to the plaintiff were

let out to the defendant. The defendant i.e,
the tenant requested the landlord to repair the
electric wring which was defective, but the
landlord failed to repair same. There occurred
an accidental fire in those premises probably
due to short circuit of electric connection.
There was found to be no negligence on the
part of the tenant.
4. Necessity
Necessity knows no law.

 This is intentional damage to prevent even

greater destruction or in defence of the realm.

 The exception of necessity is based on the

maxim Salus Populi Suprema Lex i.e. the
welfare of the people is the Supreme Law
Illustration:

One arresting and restricting the movement of

the drunken person who is likely to cause danger to
the people at large, can successfully plead
necessity as a defence.

However, one who puts live electric wires on his

land to stop the trespassers cannot successfully
avail this defence if he does not give notice,
warning of such dangerous thing
Cope v. Sharpe, (1912)

 the defendant entered the plaintiff’s premises to

stop the spread of fire in the adjoining land where the
defendant’s master had the shooting rights.
 Since the defendant’s act was to prevent greater
harm so he was held not liable for trespass. for there
was a real and imminent danger to the game which
justified the action taken by the defendant.
Carter v. Thomas 1976,
the defendant who entered the plaintiff’s land
premises in good faith to extinguish the fire, at which
the fire extinguishing workmen were already working,
was held guilty of the offence of trespass.
Kirk v. Gregory[1876] 1 Ex. D. 55.
A’s sister-in-law hid some jewellery after the death of
A from the room where he was lying dead, thinking
that to be a more safe place. The jewellery got stolen
from there and a case was filed against A’s sister-in-
law for trespass to the jewellery. She was held liable
for trespass as the step she took was unreasonable.
Limits of the Defence of Necessity
Olga Tellis v. Bombay Municipal
corporation, (1985) 3 SCC 545
 The Supreme Court held that “under the law of tort
necessity is a plausible defence, which enables a
person to escape liability on the ground that the acts
complained of are necessary to prevent greater
damage, inter alia, to himself. So the trespass on
some property cannot be justified always on the
basis of necessity.

 The defence is available if the act complained of

was reasonably demanded by the danger or
emergency”.
Section 81 of the Indian Penal Code
 Nothing is an offence merely by reason of the
being done with the
knowledge that it is likely to cause harm, if it be
done without any criminal intention to cause harm,
and in good faith for the purpose of preventing or
avoiding other harm to person or property.

 Explanation: It is a question of fact in such a case

whether the harm to be prevented or avoided was
of such a nature and so imminent as to justify or
excuse the risk of doing the act with the knowledge
that it was likely to cause harm
Illustration:
 A, in a great fire, pulls down houses in order to
prevent the conflagration from spreading. He does
this with the intention in good faith of saving
human life or property.

 Here, if it be found that the harm to be

prevented was of such a nature and so imminent as
to excuse A’s act, A is not guilty of the offence.
Private Defence
• Private defense in tort law is an important law that
enables individuals to protect themselves and their
property from imminent harm and danger.
• The principle of self-preservation is the basis of the right
to private defense, which is the fundamental principle
that enables people to take reasonable precautions to
protect themselves from harm without the immediate
assistance of the authorities. The use of force in self-
defense is an inherent right that individuals can exercise
under certain circumstances.
The conditions for the exercise of private
defense in tort law
Imminent threat − There must be an imminent threat of
harm or danger to the person or property of an individual.

Proportionality − The use of force must be proportionate

to the threat posed by the aggressor. The force used should
not exceed what is necessary to defend oneself or one's
property.

Necessity − Force must be used only when it is absolutely

necessary to prevent harm or danger from occurring. There
shouldn't be any other practical ways to stay safe or avoid
harm.

Reasonable belief − The person using force must have a

reasonable belief that they are facing an imminent threat of
harm or danger.
 In Darshan singh v. state of punjab 2010
guidelines regarding right to private defence was
stated-

Self-help is the basic rule of law

When there is an imminent threat or danger to
the life of a person the right of private defence
can be exercised.
Reasonable apprehension of threat can also give
rise to the right of private defence.
 Proportionate force must be used by the person
while exercising the right.
The accused is not required to prove the
presence of private defence beyond the
reasonable doubt.
Whenever there is an imminent threat or danger
to the life of a person or of sustaining such bodily
injury, a person can cause death or other harms to
the assailant.
Bird v. Holbrook [1825],
the defendant fixed up spring guns in his
garden without displaying any notice
regarding the same and the plaintiff who was
a trespasser suffered injuries due to its
automatic discharge. 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.
Ramanuja Mudali v. M. Gangan AIR
1984 Mad 103,

a landowner i.e. the defendant had laid a network

of live wires on his land. The plaintiff in order to
reach his own land tried to cross his land at 10
p.m. He received a shock and sustained some
serious injuries due to the live wire and there was
no notice regarding it. The defendant was held
liable in this case and the use of live wires is not
justified in the case.
Collins v. Renison [1973 QB 100],

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.
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.[(1858) 157
ER 667]

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. .
Hammer Smith Rail Co. v. Brand[[1869] LR 4 HL 171],
the value of the property of the plaintiff depreciated due to the
loud noise and vibrations produced from the running trains on
the railway line which was constructed under a statutory
provision. The court held that nothing can be claimed for the
damage suffered as it was done as per the statutory provisions
and if something is authorized by any statute or legislature then
it serves as a complete defence. The defendant was held not

liable in the case.

Smith v. London and South Western Railway Co.
[(1869-70) LR 5 CP 98],

the servants of a railway company negligently left the

trimmings of hedges near the railway line. The sparks
from the engine set fire to those hedges and due to high
winds, it got spread to the plaintiff’s cottage which was
not very far from the line. 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.
Metropolitan Asylum District v. Hill [(1882) 47 LT 29],
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.
If a person acts under a mistaken belief in any situation then
he/she may use the defence of mistake to eschew their liability
under the tort law.
A mistake is often described as an error that is caused by an
unconscious ignorance of a past or present material event or
circumstance or a belief in the present existence of a material
event that does not exist or a belief in the past existence of a
material event that did not exist, rather than by the person
committing the error by neglecting a legal duty.
• A mistake involving ignorance of the law is known
as a “Mistake of law” and a mistake involving
ignorance of facts is termed a “Mistake of facts.
• A mistake of facts stands as a valid defence
whereas, a mistake of law is not.
• A mistake of law is not a valid defence as it is
expected from every citizen to know and abide by
the laws of the land.
MOHAMMAD ALI VS. SRI RAM SWARUP[AIR 1965
All 161, 1965 CriLJ 413]
Ram Swarup was a head constable and had arrested
Mohammad Ali. Mohammad filed a case against Swarup
stating that he had falsely arrested him.
It was seen that Swarup had arrested him without particular
reasons and had kept him in unlawful detention.
It was stated in the above-mentioned case that ignorance of
law even in good faith is not justified.
Morrison VS 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.
Consolidated Company VS 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 .
State of Maharashtra v. Mayer Hans George,
1965 AIR 722, 1965 SCR (1) 123

In this case, A is an officer of the court. Court

ordered him to arrest Y. A arrest Z, as he
believes Z to be Y. Here, A can take the
ground of good faith or a bona fide intention
as a defence in the mistake of fact.
Plaintiff The Wrongdoer
• There is a maxim “Ex turpi causa non oritur actio”
which says that “from an immoral cause, no action
arises.
• The defence of plaintiff the wrongdoer means that the
plaintiff was also responsible for the harm or injury
suffered.
• The defendant can argue that the plaintiff’s actions
contributed to the harm suffered, and therefore, they
should not be held solely liable for the damages.
The Essential Ingredients are:

a. The plaintiff must have contributed to

the harm or injury suffered.

b. The plaintiff’s contribution to the harm

must be significant.
Illustration:
Tom is driving on the wrong side of the
road and collides with a car driven by
Mike. Both Tom and Mike suffer injuries.
However, Tom can argue that Mike was
also at fault as he was driving at an
excessive speed, and therefore, he should
not be held solely responsible for the
damages.
Bird v. Holbrook,
the plaintiff was awarded damages for
injuries he sustained due to spring-guns set
up in the defendant’s garden without any
warning.
Pitts v. Hunt,
a rider who was 18 years old encouraged his 16-
year-old friend to drive recklessly under the
influence of alcohol. The motorcycle they were on
crashed, and the driver died instantly. The pillion
rider suffered serious injuries and filed a suit
seeking compensation from the deceased’s
relatives. However, the plea was rejected as the
plaintiff himself was found to be the wrongdoer in
this case.
This illustrates the defence of plaintiff as
the wrongdoer, which may be used to
argue against a claim of compensation by a
plaintiff who contributed to their own
injuries through their own wrongful
conduct.