Study Notes on Law of Torts – UNIT II

General Defenses

Justification of Torts

o Act of State

An act of State is outside the ordinary law, it is essentially an exercise of sovereign power as a matter of policy or political expediency. For example, when the person or the property of a person who is not a British-subject and who is not residing in British territory is injured by an act “done by any representative of Her Majesty’s authority, civil or military, and which is either previously sanctioned or subsequently ratified by Her Majesty, the person injured has no remedy for such an act is an act of State.

In the often quoted case of Buron v. Denman, the defendant, a captain in the Royal Navy, released the slaves and set fire to the slave barracoons of the plaintiff, a Spaniard, on the West coast of Africa, outside British dominions. The defendant originally had no authority but his act was ratified by the Crown. It was held that the plaintiff had no remedy against the defendant.

o Judicial Acts

The Judicial Officers Protection Act, 1850 – Under this Act, no Judge, Magistrate, Justice of the Peace, Collector, or other person acting judicially, can be sued in any Court, for any act done by him in the discharge of his judicial duty. Provided that such acts were done in good faith.

o Executive Acts

The State and its officers are not liable when the wrongful act falls within the purview of Act of State. The State is also vicariously liable for torts committed by its officers in the course of employment except when they are committed while discharging traditional sovereign functions.

  • State of Rajasthan v. Prakash Chand

o Volenti Non Fit Injuria – Leave and Licence

The general rule is that a person cannot complain for harm done to him if he consented to run the risk of it. For example a boxer, foot baler, cricketer, etc cannot seek remedy where they are injured while in the game to which they consented to be involved. Where a defendant pleads this defense, he is in effect saying that the plaintiff consented to the act, which he is now complaining of. It must be proved that the plaintiff was aware of the nature and extent of the risk involved.

In the case of Khimji Vs Tanga Mombasa Transport Co. Ltd (1962), the plaintiffs were the personal representatives of a deceased who met his death while traveling as a passenger in the defendant’s bus. The bus reached a place where road was flooded and it was risky to cross. The driver was reluctant to continue the journey but some of the passengers, including the deceased, insisted that the journey should be continued. The driver eventually yielded and continued with some of the passengers, including the deceased. The bus got drowned together with all the passengers aboard. The deceased’s dead body was found the following day.

It was held that the plaintiff’s action against the defendants could not be maintained because the deceased knew the risk involved and assumed it voluntarily and so the defense of Volenti non fit injuria rightly applied.

o Administrative Acts

  • Dunlop v. Woolhara Municipal Council

o Acts of Governing Body

o Parental & Quasi-Parental Authority

  • Sankunni v. Swaminatha Pattar

o Authorities of Necessity

  • Lamb v. Burnett

o Statutory Authority

When the commission of what would otherwise be a tort, is authorized by a statute the injured person is remediless, unless so far as the legislature has thought it proper to provide compensation to him. The statutory authority extends not merely to the act authorized by the statute but to all inevitable consequences of that act. But the powers conferred by the legislature should be exercised with judgment and caution so that no unnecessary damage is done, the person must do so in good faith and must not exceed the powers granted by the statute otherwise he will be liable.

In the Case of Vaugham Vs. Taffvale Railway Co. (1860), A railway company was authorized by statute to run a railway, which traversed the plaintiff’s land. Sparks from the engine set fire to the plaintiff’s woods. It was held that the railway company was not liable. It had taken all known care to prevented emission of sparks. The running of locomotives was statutorily authorized.

o Inevitable Accident

This means an accident, which cannot be prevented by the exercise of ordinary care, caution or skill of an ordinary man. It occurs where there is no negligence on the part of the defendant because the law of torts is based on the fault principle; an injury arising out of an inevitable accident is not actionable in tort.

In the case of Stanley Vs. Powell (1891), 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. The plaintiff sued. It was held that the defendant was not liable in the light of the circumstance of inevitable accident.

o Act of God

This is also an inevitable accident caused by natural forces unconnected with human beings e.g. earthquake, floods, thunderstorm, etc.

In the case of Nichols Vs. Marshland (1876), the defendant has a number of artificial lakes on his land. Unprecedented rain such as had never been witnessed in living 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 act of God and the defendant was not liable.

o Necessity

Where intentional damage is done so as to prevent greater damage, the defense of necessity can be raised. Sometimes a person may find himself in a position whereby he is forced to interfere with rights of another person so as to prevent harm to himself or his property.

In the case of Esso Petroleum Ltd. Vs. Southport Corporation (1956), it was held that the safety of human beings belongs to a different scale of value from the safety of property. These two are beyond comparison and the necessity for saving life has all times been considered, as a proper ground for inflicting such damage as may be necessary upon another’s property.

o Private Defence

Everyone has a right to defend his person, property and family from unlawful harm. A person who is attacked does not owe his attacker a duty to escape. Everyone whose life is threatened is entitled to defend himself and may use force in doing so. The force used must be reasonable and proportionate to that of the attacker. Normally, no verbal provocation can justify a blow

  • Morris v. Nugent

o Plaintiff a wrong doer

  • Bird v. Holbrook
  • National Coal Board v. England
  • Pitts v. Hunt

o Acts causing slight harm

  • Holford v. Bailey

Vicarious Liability

Liability for wrongs committed by others. Generally, a person is liable for his own wrong doings.

Liability By Ratification

  • In the course of authority
  • Should be made by principal with full knowledge about the wrongful act
  • illegal and unlawful acts cannot be ratified

Liability By Relationship between the two (Master & Servant)

Master-Servant: When Master is Liable

  • Dharangadhara Chemical Works Ltd. v. State of Sourashtra
  • Mersey Docks and Harbour Board v. Coggins & Griffith (Liver Pool) Ltd.
  •  Lllyod v. Grace Smith Co.
  • Gregory v. Piper
  • Bayley v. Manchester Rly. Co.
  •  Lionpus v. London General Omni Bus Co.
  • Ricett v. Thas Trilling

Master-Servant: When Master is not Liable

  • Williams v. Jones
  • Storey v. Ashton
  • Paulton v. London & S.W. Rly. Co.
  • General Engg. Services Ltd. v. Kingston Cheshire

Master-Independent Contractor


Company & Directors

Partnership Firms & Partners

Guardian & Ward

Liability By Abetment

In actions of wrong, those who abet the tortious acts are equally liable with those who commit the wrong. A person who procures the act of another is legally responsible for its consequences

  1. If he knowingly and for his own ends induces that other person to commit an actionable wrong, or
  2. when the act induced is within the right of the immediate actor and, therefore, not wrongful so far as the actor is concerned, but is detrimental to a third party and the inducer procures his object by the use of illegal means directed against that third party