Defences and Remedies in Law of Torts

Defences and Remedies in Law of Torts

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These are kinds of Defences and remedies in the Law of Torts: In tortuous liability, the defendant may assert the following defences in order to avoid liability:

Act of God

One of the most effective tort defences is that of an act of God. This defence is also available under the rule of strict liability for acts of God such as rain, storms, tides, volcanic eruptions, and so on that are directly caused by natural causes without human interference and are so unusual that almost no human foresight or expertise could reasonably be implemented to predict it.

key elements of this defence

key elements of this defence are as follows:

  • Natural forces must be operational,
  • The incident must be extraordinary and cannot be reasonably anticipated and guarded.
  • The issue is whether a particular event is God’s act. The scope of this defence is currently very limited as the possibilities are growing as knowledge increases and the possibility of the event is expected to be viewed.

Greenock Corporation vs. Caledonian Rly.

The defendant, the municipality, constructed a concrete play boating pond for children in the bed of a stream, which obstructs the natural water flow from there. As a result of unusually heavy rain, the flow overflowed into the lake, and a large volume of water was discharged from its natural flow, flowing down the road into the city and disrupting the land of the plaintiff, a railway enterprise. It was determined that the defendant, the municipal authority, was responsible for the losses because they were the result of human action rather than an act of God. The plaintiff’s property would not have been harmed if the natural flow of stream water had not been obstructed by the construction of a pond. The defendants could have foreseen it. Regardless, they did so and are thus liable for the damages.

Nicholas vs. Marshland (1876) 

The plaintiff’s land was transformed into an artificial lake as a result of the storage of rainwater from natural streams. Once, there was an unusually heavy downpour that couldn’t be reasonably foreseen. As a result, the embankment of the lake burst out & water began to overflow on the plaintiff’s land. The plaintiff’s four bridges were washed away by the flow of the water. As the loss was due to the God act, the defendant was not liable.

Inevitable Accident

An inevitable accident means a mishap that could not be prevented by any precautions that could be expected from a reasonable man to do then and there. In other words, an inevitable accident is an incident that an ordinary prudential person cannot avoid in the circumstances under which it occurs, despite all his reasonable care.

two essential elements of these defences

Following are the two essential elements of these defences:

  • The defendant certainly didn’t intend to do wrong;
  • The wrong might not have been predicted and prevented with due care and skill.

Nitroglycerin case

Nitroglycerin packed in a box was sent via a common carrier in this case. But there was some leakage, the carrier’s servants opened the box in X’s premises in order to prevent the leakage. An explosion occurred, causing damage to X’s premises. X suit for damages. It was determined that the defendant had taken all precautionary measures and was not irresponsible. The defendant also had no knowledge of the contents of the box. The accident was beyond the comprehension of a reasonable person. The accused was therefore found not guilty.

In another case, Stanley v. Powell

When they went for pheasant shooting, the plaintiff was used to carrying a cartridge for a shooting party. A party member fired from afar, but after he hit a tree the bullet bounced back into the eye of the plaintiff. In the course of the claimant’s suit, the accused was held not liable for the inevitable accident.

Trifle act (acts causing slight harm)

The law does not take into account trivial matters or ordinary damages caused by an act of a person. This is based on the “de minimis non-curate lex,” a rule that does not involve the law. Such actions are not illegal under tort law, and an ordinarily prudent person would never complain about them. Every man, at some point in his life, does something that causes harm to others, such as dashing a person while walking down the street, riding the bus, or failing of dust or water caused by a fast-moving car, etc


There are two types of mistakes:

  • Mistake of law
  • Mistake of fact

In cases where the motive is an essential component of the wrong A mistake of fact is no excuse

In the case of consolidating company vs. Curtis & Son (1892), 1Q.B.425,  

A bill of sale was used to assign certain household furniture to the plaintiff. Following that, the assignor hired the defendant. a firm of auctioneers who sell it at her home via auction. Because the defendant was unaware of the bill of sale, he sold the furniture and delivered it to the buyer. The defendants claimed that they acted in mistake because they were unaware of the true owner of the property. The court, however, held that the mistake of fact was no excuse for trespassing or interrupting the plaintiff’s property, which had been sold and delivered wrongfully. Thus under the law of tort whether a mistake of fact or of law is no defense. but there is an exemption to this rule that if the mistake is of such a nature that under the given circumstances a person of reasonable prudence would have done the same thing that the defendant did then he is not liable. thus, in cases of malicious prosecution, fraud, and negligence, no suit for damages is maintainable if the defendant has acted reasonably and honestly.

Volenti non fit Injuria

The harm caused knowingly and willingly by the plaintiff’s consent is not actionable. This legal principle is known as volenti non fit. That is, what is agreed upon is not injury.

Consent can be divided into two types

  • Express consent: Acc. to the Salmond that no man can impose a right that he has knowingly and willingly agreed to waive or abandoned. Every man is the judge of his own self-interest. He cannot take action if he knowingly and willingly accepts the risk or consents to the harm. The defence of volenti non fit injuria is invoked when an act is performed with the plaintiff’s consent and causes him harm.
  • Implied consent: – The consent may sometimes be implicit and can be derived from the parties’ conduct. The plaintiff shall not consent in such cases to the injury that the act causes. But he consents to something that is incidental to the injury.

In order for the maxim volenti non fit injuria to be implemented

the following recommendations are made:

  • Consent should be freely given: Only if the defendant can show that the plaintiff’s consent to the act done by him was obtained knowingly and willingly then the defendant can use the defence of “volenti non fit injuria”.

It will not be free consent if it was obtained through fraud, coercion, or a mistaken impression, and it will not be a good defence for the defendantConsent should be obtained while being aware of the risks associated with the act. If the plaintiff has not been informed or made aware of the risk involved in the act, it will not be free consent.

  • Act must be legal:- Act must be legal: The act to which the plaintiff consents and agrees to bear the risk must be legal, as must the method used to carry it out; otherwise, consent will not be a good defence for the defendant. Consent doesn’t make an unlawful act into a lawful act.
  • Maxim is volenti, non-scienti non fit injuria: – which means that having knowledge doesn’t really indicate permission to take risks. However, depending on the circumstances, it may make it strong or weak. It is not necessary to show that the person who was injured was aware of the risk and chose to take it.

Exception of the maxim volenti non fit injuria does not apply:

  • Rescue cases: – rescue cases are exceptions to the maxim volenti non fit injuria if the plaintiff knowingly and willingly takes a risk to rescue someone from the danger created by the defendant’s wrongful act, the maxim non fit injuria will not apply and he’ll have the right to file a lawsuit against the defendant for injury or damage
  • Unfair Contract Terms Act of 1977 (England): The principle of volenti non-fit injuries has been eradicated in cases of personal injury or negligence damage. It follows that the defendant cannot argue that the plaintiff consented to the risk to his person through a contract. In business cases, however, the exemption can be granted by contract. Section 29(1) of the Act states that an individual may not, by referring to any contractual term or the notice to a person, or to a specific person in general, exclude or limit the person’s liability for death or personal injury caused by negligence. In case of other legislation or harm, a person cannot except to the extent that the term or notice complies with a reasonableness requirement, and excludes or limits its responsibility for negligence.

Plaintiff is a wrongdoer (ex turpi causa non-oritur action):

The claimant must be liable for legal damage and injury. If the damage is contaminated by immorality, “ex turpi causa no oritur action” cannot occur. No reason for action. This maxim implies that an action is not motivated by a morally reprehensible motive.

In the case of Hegarty vs. Shine (1878)

P is infected with a venereal disease by D, her paramour, the existence of which D concealed. P cannot sue D since an action is not caused by a morally reprehensible cause

Private Defence

Everyone has the right to defend his or her own personal rights against illegal damage. This can be done for a spouse or partner, a parent or child, a master or servant, or anyone else. The amount of force used must be proportionate to the apparent seriousness of the situation. Furthermore, the necessity must be illustrated(proved).

Statutory Authority

An act that is authorized by the legislature or done on its direction is exempt from tortuous responsibility, even if it would have been a tort under ordinary circumstances. When an act is carried out from underneath the authority of a statute, it is a valid defence, and the aggrieved party has no redress other than what the statute allows.

In the case of Vaughan vs. Taff Valu Rail Co. 1860

Ignites(spark) from an engine started a fire in the appellant’s woods, which he had at the time of the railway track’s joining. It was decided that the company was not liable for the damage because it was authorized to run the railway and had taken reasonable care in doing so.

Contributory Negligence

The plaintiff is said to be guilty of contributory negligence when he or she suffers harm not only as a result of the defendant’s negligence but also as a result of the plaintiff’s own negligence.

Doctrine of last opportunity rule

According to this rule, if an accident occurs as a result of the combined carelessness of two people, the one who had the last reasonable opportunity to avoid the accident by exercising reasonable care is solely accountable to the other. Davis vs. Mann, popularly known as the Donkey case, established the above ruling in 1882. The plaintiff in this instance left his donkey alone on the side of the highway with its forefelt tide. The defendant was recklessly driving his horse wagon at a high pace when it hit the donkey, and it was killed.

According to the Court, the defendant’s negligence was an approximate and immediate cause because, when he saw the donkey graze near the road with its forefeet tied, he could easily have slowed his cart’s speed. Although the plaintiff was also irresponsible in leaving his donkey with his felt tide near the roadway, he was found entitled to compensation because the defendant had the last chance to avoid the accident.

Doctrine of apportionment

The rule was illogical since it held that whatever party had the last chance to avoid an accident was completely accountable for the damages, regardless of the plaintiff’s fault. In order to remove the illogicality of the last opportunity rule and act cause, In 1945, England passed the legislation (Contributory Negligence) act, which asserts that if an individual suffers injuries, a claim for this injury must not be excluded, however, through his own fault and partly because of the fault of another person. , because of the obvious mistake of the person who has suffered the injury, the loss recoverable in reference to their of shall be restricted to the extent that the court deems appropriate.

Vidhya Devi versus MPSRTC (1974)

A bus travelling on the main road collided with a motorcyclist who arrived on the main road from a side lane and rushed into the vehicle without looking either way, resulting in his death. According to the court, both the bus driver and the motorcycle were irresponsible in their approach to the road crossing, but the biker’s negligence was significantly worse than the bus driver’s. The court assigned the motorcyclist’s & the bus driver’s respective negligence as 2/3 & 1/3 respectively.

Legal Remedies under the Tort of Law

Let’s begin by defining what the term “remedy” means in legal terms. When something that a party was enjoying is forcibly taken from them by some other party, that party is said to be “aggrieved.”This violation is an illegal and legally punishable violation of party rights. When a person’s rights are violated and they are returned to their previous position, they are recognized to have received a legal remedy. There are several legal alternatives available.

For example, if a party takes something that belongs to you, the court can order them to pay you back in cash or return your items as they were, and in rare situations, the court can also penalize the parties.

Tort Law remedies are of two kinds

  1. Judicial Remedies: The remedies provided to an aggravated party by the courts of law.
  2. Extra-Judicial Remedies: If, though legally, the injured party takes the law into its own hands, remedies are referred to as extrajudicial remedies.

In tort law, there are three types of judicial remedies.

(1) Damages

The sum of money compensated to the aggravated party to return it to its predecessor position is known as damages or legal damages. They are given a claimant to help them reimburse their damages. Damages are by far the most frequent cause of remedy in tort cases. The plural of the word “damage,” which means “harm” or “injury,” should not be confused with the word “damages.”

Damages may be categorized as follows:

Nominal damage – Nominal damage is one in which, although the plaintiff has suffered a legal injury by the accused, no actual damage has been sustained. The damages are granted in the cases of Injuria sine damnum where the Court admits that the claimant’s right has been violated but the damages have been so trivial or low because the claimant did not suffer any real damages

In Ashby v. White (1703) case

The accused prevented the plaintiff from casting a vote, but the candidate for whom the plaintiff was planning to vote, won. An action against the defendant was brought by the complainant. While no damage was actually done to the applicant, the defendant was still subject to liability to prevent him from exercising his right to vote and in that case nominal (marginal) damages were granted.

Contemptuous Damages– The Court of Justice has acknowledged the plaintiff’s right in these types of damages but has given the complainant a small amount of damages in order to demonstrate that the complaint is so small in nature that it has just wasted the time of the court. The main difference between nominal and disrespectful damage is that the plaintiff does not suffer real loss in nominal damages, but in contemptuous damages, the claimant suffers from real injury, but is minor and should not be completely reimbursed.

Substantial-When the plaintiff receives compensation for the exact loss he suffered as a result of the tort, substantial damages are said to have been granted.

Exemplary/Punitive– Punitive damages are awarded when the defendant was completely unaware of the plaintiff’s rights and caused significant harm to the defendant. The goal is to set an example for others to follow and to warn them against doing the same thing again.

(2) Injunction

An injunction is an impartial remedy in tort cases that the court may grant with or without cause. An equitable remedy is one where the court directs the other party to fulfil his half of the promises instead of paying the aggrieved party. By issuing an order to stop doing something, a court is helping the aggrieved party restore their losses.


A temporary injunction is an injunction that lasts for a set period of time and is usually awarded before the case is heard on the merits. It is only provisional and only the court has the authority to grant it.


It has been argued that the permanent injunction is meant to redress the parties’ dispute, the order was issued after the pleas have been resolved will be an injunction. Perpetual injunctions are imposed as a final order after a case has been thoroughly reviewed.


As part of this temporary restraining order, the defendant is required to refrain from acting in a negative way toward the plaintiff’s rights and not interfere with the plaintiff’s lawful rights, such as the plaintiff’s lawful right to have no one really enter his residence, so the defendant should be required to comply with this action.


The mandatory injunction requires the defendant to take some positive action. For example, when there is a physical barrier near the plaintiff’s house and the plaintiff is having problems as a result of the wall, it is a mandatory injunction for the defendant to consider removing the wall because the plaintiff’s house is being blocked.

(3) Specific Restitution of Property

It is the third judicial remedy available under tort law. Restitution is the return of the property to the real owner. When a person’s property or goods are wrongfully taken from him, he has the right to have them returned to him.

Extra-judicial Tort Remedy Alternatives to Court

There are five basic kinds of these:

  • Expulsion of trespasser: An individual can use appropriate force to remove an unlawful trespasser from his or her property.
  • Re-entry on land: The property owner has the right to evict the trespasser and re-enter his property using reasonable force.
  • Re-caption Goods: A person in unlawful possession of goods has the right to reclaim their property, and the owner has the right to do so.

It is the right of a property owner to reclaim his or her property from someone who has illegally taken control of it. This extra-judicial remedy differs from particular restitution in that it does not require the person to go to court for help; instead, he or she takes matters into his or her own hands.

  • Abatement: If a person (the injured party) is bothered by a public or private nuisance, they may remove the offending object.
  • Distress Damage: Finally, distress damage to the peasant. When cattle or other animals are stolen from one person’s land and taken to the property of another, the owner’s crops are destroyed. The property owner has the right to keep the animals as long as he has not been compensated for his loss.


A significant aspect of every law’s defences is similar to the remedies provided to those who have been wronged. It is not uncommon for defendants who have done nothing wrong to find themselves held responsible after all the requirements of tort law have been met. The General Defenses in Torts Law play a significant role in helping the defendant avoid any and all forms of liability.

Before applying these defences in court, it is crucial to have a comprehensive understanding of them.


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