Defenses in tort

● Introduction:
The term Defense in general consensus of law means
safeguarding or resisting oneself or someone from any act which might have been
committed by someone and that act is not in accordance with law. In torts it is
referred only to arguments offered by the defendant that, if accepted, would permit
the defendant to escape from liability even if all of the elements of the tort in
which the claimant sues are present.

● Derivation of term “Defenses”:

The term Defense is
derived from the Latin term “Defensus” which generally means “ward off or
Protect”. In law it can be considered the action of guarding or shielding from
attack or injury; act of defending by fighting; a fortified place of refuge.

● Meaning of the term “Defenses”:

➔ Literal Meaning:
According to the Oxford Dictionary of Law:

“Action taken in reasonable defense of one's person or property.”

➔ Legal Meaning:
According to the Black’s Law Dictionary:

“Defense can be defined to be that which is alleged by a party to proceed

against in an action or suit as a reason why the plaintiff should not recover or
establish that which he seeks by his complaint or petition.”
Definition of the term “Defences”:

● General Defenses in Tort:

There are 15 different general
defenses in tort that can be fit in all types of torts. The Pakistan Penal Code, 1860,
from Section 76 to 106 include general defense. Although they are concerned with
crimes but exceptionally they may be used in torts.These general defenses are
mentioned as below:

1. Act of the state:

A maxim is provided in this regard Qui facit per alium
facit per se means one who gets acted through servant, supposed acted himself.
An act of state is an act that is done in exercise of sovereign power against an
alien. As per English law, one who is not the citizen of a state is alien and in case
of tort against them, they cannot sue being alien. It is a pure matter of FORCE or
TERRIRORISM. An act of state includes:

➢ Tort of state against alien, is act of state.

➢ It is done by agent of government or servant.
➢ An act is authorized earlier by the government or if not it is ratified later on
spot.

CASE REFERENCE
BURON Vs DENMUAN

Some owned slaves were released by the commander of Royal Navy, held, that no
action will lie because it was an act of state. Slave is not supposed a person. A
person is that who has rights and duties, so slaves are considered commodity.
There is difference in resident and alien and different conduct is applied.

2. Judicial Acts:
A judge discharging his official duties or a Judicial Officer
exercising his judicial function is referred to as a “judicial act.” This defence can
be taken by a Judge if an action in tort is brought against him. The law says that no
suit will lie against a Judge for any act done or any words spoken by him whilst
doing his duty.

CASE REFERENCE
ANDERSON Vs GORRIE (1894)

The plaintiff had accused two men of obtaining money under a false pretence.
However, on the advice of his counsel, he withdrew the case. The presiding Judge
of the case here remarked that the plaintiff was extorting money from the
defendant by involving them in litigation. Here, no action will lie against the judge
because he was discharging his duties.

Also, the Judicial Officers Protection Act, 1850 states that:

“No Judge, Magistrate, Collector, or any person acting judicially shall be sued
in any Civil Court, for any act done by him in the discharge of his judicial
duties”.

The court must ensure that the following two conditions are satisfied before it
allows such a defence by a Judge-

➢ The act must be done while doing his judicial duty.

➢ The judge must be acting within his jurisdiction, or at least in good faith
believes himself to have jurisdiction to do the act.

3. Quasi- Judicial Acts:

The word “quasi” holds a Latin origin and means
‘similar to but not exactly.’ Quasi-judicial is also known as a non-judicial body
thatcan interpret law. It is an entity, which has powers and procedures that
resemble a court of law or judge, and which is obliged to determine facts and draw
conclusions from them to provide the basis of official action.

Therefore, these actions are remedies for a situation or to impose legal penalties,
and the actions may affect the legal rights, duties, or privileges of specific parties.
Eg- a person cannot be wrongfully terminated or removed from membership
without giving him the following:

➢ Sufficient opportunity of being heard.

➢ An opportunity to defend himself.
➢ Person removing him must act in good faith i.e. must act with due care and
attention.

➔ Difference between Judicial and Quasi-Judicial Acts:

Judicial acts are
done by judicial bodies like Supreme Court and High Courts and they strictly
follow the codified law, particularly CrPC, CPC, Evidence Act, etc.

Quasi-judicial acts are done by bodies like Tribunals who do not follow the rules
completely.The word quasi itself means semi or partial. They are partially judicial.

4. Executive Acts:
Sometime police acts upon the orders of commissioner for
the dispersion of mob and to maintain the law and order situation. During this
course some people may injure which does not come under tort and are not sue-
able. These are called executive acts and there is protection under The Judicial
Officers’ Protection Act, 1850.

5. Parental Authority:
Parental Authority under the law of torts is an
authority given to parents to control and correct their children by either kind of
force and such people are protected under the law of torts only if they act in a
reasonable manner and for a good cause. It is upon the Judge to decide whether the
act was reasonable or not.

CASE REFERENCE
REX Vs NEWPORT
In the case of Rex v. Newport Justices (1929), a student was punished with five
strokes with a cane by the schoolmaster because the student was found smoking a
cigarette on his way home from school.

It was held that the father by sending the boy to school had authorized the
schoolmaster to administer reasonable punishment to the boy for breach of the
school rule and that the punishment was reasonable.

6. Plantiff himself is a 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. If a defendant asserts that
the claimant himself is the wrongdoer and is not entitled to the damages, then it
does not mean that the court will declare him free from the liability but he will not
be liable under this head.

CASE REFERENCE
PITTS Vs. HUNT

In Pitts v. Hunt, there was a rider who was 18 years of age. He encouraged his
friend who was 16 years old to drive fast under drunken conditions. But their
motorcycle met with an accident, the driver died on the spot.

The pillion rider suffered serious injuries and filed a suit for claiming
compensation from the relatives of the deceased person. This plea was rejected as
he himself was the wrongdoer in this case.

7. 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. For
example, if A tried to commit a robbery in the house of B and B just draw
his sword and chopped his head, then this act of A would not be justified and
the defence of private defence cannot be pleaded.

➢ 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.

CASE REFERENCE
BIRD Vs. HOLBROOK
In Bird v. Holbrook, 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.
8. Neccessity:
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.

CASE REFERENCE
COPE Vs. SHARPE

In Cope v. Sharpe, 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.

9. Inevitable Accident:
An 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 defense 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.

CASE REFERENCE
STANLEY Vs. POWELL

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.

10. Vis Major OR Act of God:

Vis Major or Act of God serves as a good
defense under the law of torts. It is also recognized as a valid defense in the rule of
‘Strict Liability in the case of Rylands v. Fletcher.
The defense of Act of God and Inevitable accident might look the same but they
are different. An 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 defense are:
➢ Natural forces working should be there.
➢ There must be an extraordinary occurrence and not one which could be
anticipated and guarded against reasonably.

CASE REFERENCE
NICHOLAS Vs. MARSHLAND

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, the
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.

11. Mistake:
The mistake is of two types:
➢ Mistake of law
➢ Mistake of fact

In both conditions, no defense is available to the defendant. When a defendant acts

under a mistaken belief in some situations then he may use the defense of mistake
to avoid his liability under the law of torts.

CASE REFERENCE
CONSOLIDATED COMPANY Vs. CURTIS

In Consolidated Company v. Curtis, an auctioneer auctioned some goods to 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 the auctioneer
liable and mentioned that the mistake of fact is not a defense that can be pleaded
here.

12. Volenti Non-Fit Injuria (Defence if Consent):

In volenti non-fit injuria, if
a plaintiff has consented to a wrongful act with free content, either express or
implied, under no pressure of fraud or coercion, with voluntary acceptance of risk,
then he has no right to sue the defendant. Also, there should be a duty on behalf of
others.

CASE REFERENCE
HALL Vs BROOKLANDS AUTO RACING CLUB

In Hall Vs. 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.

13. 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.

CASE REFERENCE
VAUGHAN Vs. TAFF VALE RAIL CO.

In Vaughan v. Taff Vale Rail Co.[41], sparks from an engine of the respondent’s
railway company were authorized to run the railway, and 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.

➔ Types of Statutory 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.

CASE REFERENCE
METROPOLITAN ASYLUM DISTRICT Vs. HILL

In the case of Metropolitan Asylum District v. Hil[44], 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.

● Conclusion:
To conclude that, General defences are a set of
‘excuses’ that you can undertake to escape liability. In order to escape liability in
the case where the plaintiff brings an action against the defendant for a particular
tort providing the existence of all the essentials of that tort, the defendant would be
liable for the same.

It mentions all the defences which can be pleaded in cases depending upon the
circumstances and facts. In order to plead a defence it is important to understand it
first and then apply the suitable defence accordingly.