Torts and Defences Against the Torts

The law of torts deals with civil wrongs that cause harm to individuals and provides remedies in the form of unliquidated damages. It is based on the breach of duties imposed by law, independent of any contractual relationship. The primary objective of tort law is to compensate the injured party and maintain a balance between individual rights and social interests.

Salmond defines a tort as a civil wrong for which the remedy is a common law action for unliquidated damages. Winfield explains tortious liability as arising from the breach of a duty fixed by law towards persons generally. These definitions establish that tort law is concerned with wrongful acts leading to legal injury.

Broadly, torts can be understood through certain recognised categories such as negligence, nuisance, trespass, defamation, and malicious prosecution. Alongside liability, the law also recognises various defences which may absolve or reduce the liability of the defendant.

Nature and Essentials of Tort

A tort is characterised by certain essential elements. First, there must be a wrongful act or omission. Second, there must be a legal duty owed by the defendant to the plaintiff. Third, there must be damage or injury resulting from the breach of that duty. Finally, the remedy generally takes the form of unliquidated damages.

Unlike contractual liability, tortious liability arises independently of agreement. The duty is imposed by law and is owed to persons generally. The focus is on protecting legal rights such as bodily integrity, property, reputation, and personal liberty.

Torts and Their Defences 

Types of Torts

Negligence

Negligence arises when a person fails to exercise reasonable care, resulting in harm to another. It is one of the most common forms of tort.

The essential elements of negligence include duty of care, breach of that duty, causation, and damage. A person must owe a legal duty to act carefully, and failure to meet this standard must directly cause harm.

In Donoghue v Stevenson, the principle of duty of care was firmly established, holding that a manufacturer is liable for harm caused by defective products. Similarly, in Pillutla Savitri v GK Kumar, liability was imposed for the direct consequences of negligent conduct.

Nuisance

Nuisance refers to unlawful interference with the use or enjoyment of land. It may be private, affecting an individual, or public, affecting the community at large.

The interference must be substantial and unreasonable. Acts such as excessive noise, smoke, or water leakage may constitute nuisance.

In Fay v Prentice, interference caused by water flowing from a neighbour’s property was held to be actionable nuisance. The law seeks to ensure that the use of property does not unreasonably interfere with others.

Trespass

Trespass involves direct and unlawful interference with a person’s property or person. It includes trespass to land and trespass to the person.

Trespass to land occurs when a person enters another’s property without permission. No actual damage is required to establish liability.

Trespass to the person includes acts such as assault, battery, and false imprisonment, which interfere with personal liberty and bodily integrity.

Defamation

Defamation involves making false statements that harm the reputation of another person. It may take the form of libel or slander.

The essential elements include a false statement, publication to a third party, and damage to reputation.

In SNM Abdi v Prafulla Kumar Mahanta, the court awarded damages for defamatory allegations made against a public figure, recognising the serious harm caused to reputation.

Malicious Prosecution

Malicious prosecution occurs when a person initiates legal proceedings against another without reasonable cause and with malicious intent, resulting in damage.

The essential elements include:

• Institution of legal proceedings
• Absence of reasonable and probable cause
• Presence of malice
• Termination of proceedings in favour of the plaintiff
• Damage suffered by the plaintiff

This tort protects individuals from abuse of legal process and ensures that legal remedies are not misused.

Defences in Law of Torts

The law of torts does not impose liability in every situation where harm is caused. Certain recognised defences exist which protect the defendant from liability where the act is justified, unavoidable, or done under lawful authority. These defences are based on fairness, necessity, and public policy.

Volenti Non Fit Injuria

The maxim volenti non fit injuria means that no injury is done to a person who has consented to it. This defence applies where the plaintiff has voluntarily agreed to take the risk associated with a particular act.

For this defence to be valid, it must be shown that the plaintiff had full knowledge of the nature and extent of the risk and freely consented to it without any pressure or coercion. The consent must be real and voluntary, not obtained by fraud or compulsion. Further, the harm suffered must fall within the scope of the risk that was accepted.

This defence is commonly applied in situations involving sports or risky activities, where participants knowingly accept inherent dangers. However, it does not apply where the defendant acts negligently or goes beyond the limits of the consent given.

Act of God (Vis Major)

An Act of God refers to natural events that are extraordinary, unforeseen, and beyond human control, such as floods, storms, or earthquakes. Where damage is caused solely due to such natural forces, the defendant cannot be held liable.

The essential requirement for this defence is that the event must be so unusual that it could not have been anticipated or prevented even with reasonable care and foresight. If human negligence contributes to the damage, this defence cannot be used.

In Ramachandra v Western India Theatres Ltd (1957), damage caused by a flood was held to be the result of an Act of God, and the defendant was not held liable. The case establishes that liability does not arise where harm is caused entirely by natural forces beyond human control.

Inevitable Accident

An inevitable accident is an accident that occurs without negligence and could not have been avoided even if reasonable care had been taken. It is different from an Act of God because it may involve human activity, but the outcome remains unavoidable.

The defence applies when the defendant has taken all necessary precautions, yet the accident still occurs due to circumstances beyond control. The key factor is the absence of negligence.

In Stanley v Powell, an injury caused during a shooting activity was held to be an inevitable accident, as there was no negligence involved and the incident could not have been prevented.

Necessity

The defence of necessity applies where an act is done to prevent a greater harm. In such situations, the law recognises that causing lesser harm may be justified in order to avoid more serious consequences.

The act must be reasonable and done in good faith for the purpose of preventing danger to life, property, or public safety. It must not be excessive or unnecessary.

In K.K. Verma v Union of India (2004), the demolition of unauthorised structures was upheld as justified, as it was necessary to prevent greater harm caused by illegal encroachments. This case highlights that actions taken in the interest of public safety may be protected under this defence.

Private Defence

Private defence allows a person to use reasonable force to protect oneself, one’s property, or to prevent the commission of a crime. The law recognises that individuals are not expected to remain passive when faced with imminent danger.

The force used must be proportionate to the threat and must be necessary in the circumstances. Excessive or retaliatory force is not protected under this defence.

Private defence includes protection of one’s body, property, and the prevention of unlawful acts. It is based on the principle of self-preservation and protection of legal rights.

Statutory Authority

Statutory authority is a complete defence in cases where the act complained of is authorised by a valid statute. If a person acts within the limits of the law, liability does not arise even if harm is caused.

This defence operates on the principle that what the law permits cannot be considered wrongful. However, the protection applies only when the act is carried out strictly in accordance with the statutory provisions.

Judicial and Quasi-Judicial Authority

Judges and quasi-judicial officers are protected from liability for acts done in the exercise of their official duties. This immunity is essential to ensure independence in decision-making and the proper functioning of the judicial system.

The protection applies only when the acts are performed within the jurisdiction and in good faith. Acts done outside authority or with malice are not protected.

Parental and Quasi-Parental Authority

Parents and guardians have the authority to exercise reasonable control and discipline over minors. Such acts are not considered tortious if they are carried out within accepted limits and for the welfare of the child.

In Smt. Sushila v State of Rajasthan, the court recognised that reasonable discipline exercised by parents does not give rise to liability. This defence is based on social necessity and the responsibility of guardianship.

Novus Actus Interveniens

The principle of novus actus interveniens refers to a new intervening act that breaks the chain of causation between the defendant’s act and the plaintiff’s injury.

If an independent and unforeseeable act by a third party becomes the actual cause of harm, the original defendant is not held liable.

In Indian Oil Corporation Ltd v NEPC India Ltd (2006), the court recognised that an independent intervening act can break the chain of causation and relieve the defendant from liability.

Ex Turpi Causa Non Oritur Actio

This principle means that no action arises from an immoral or illegal cause. A person who is involved in unlawful activity cannot claim damages for harm resulting from that activity.

The law refuses to assist a wrongdoer, and therefore, compensation is denied where the claim is based on illegal conduct.

Conclusion

The law of torts provides a structured mechanism to address civil wrongs and compensate injured parties. At the same time, it incorporates various defences to ensure that liability is imposed only where it is justified.

Defences such as Act of God, inevitable accident, necessity, private defence, and statutory authority reflect the principles of fairness and reasonableness. They recognise that not every harmful act should result in liability, especially where the act is justified, unavoidable, or legally authorised.

Note: This article was originally written by Debasrita Choudhury  (K.L.E. Society Law College) and published on 24 May 2021. It was subsequently updated by the LawBhoomi team on 15 April 2026.