DEFENCES

Sir Frederick Pollock

"rules of immunity which limit the rules of

liability"
 Two categories
1. Specific Defence / Special Defence
2. General Defence
 General Defences
1. Consent judicial acts
2. Act of God 8. Plaintiff’s own default
3. Inevitable accident 9. Acts causing slight
4. Necessity harm
5. Private Defence 10. Mistake
6. Statutory authority
7. Judicial or quasi
 Consent
‘Volenti nonfit injuria’ – voluntary assumption
of risk
Harm suffered voluntarily does not constitute a
legal injury
Chapman vs Lord Ellesmere, (1932) 2KB 431
Consent: Express and Implied
Hall vs Brookland, Auto Racing Club, (1933) 1KB
205
 Essentials
1. Consent must be freely given
R vs Williams (1923) KB 340

2. Act must not be unlawful or contrary to public

policy

3. Knowledge does not necessarily imply consent

Smith vs Baker & sons, (1891) AC 325
South Indian Industrials vs Alamelu Ammal (1923)
17 LW 495
4. Act must be the same to which consent was
given
• Lakshmi rajan vs. Malar hospital, (1998) CPJ
586
 Limitation / Expectations

1. No consent no defence
2. Breach of statutory duty
3. Rescue cases
novus actus interveniens ( A new actor who breaks
the chain of cause and effect of the negligent act)
• Haynes vs harwood (1935) 1 KB 146
• Wagner vs. International Railways,232 NY 176
(1926)
• Hyett vs grant western railway co. (1948) 1 KB
345
4. Negligence by defended negates the consent
of plaintiff
• Slater vs Clary Cross Co. Ltd. (1956) 2 All ER
625 (railway tunnel)
 Act of God
Vis Major
• “injury caused by extraordinary natural forces
without human intervention in circumstance
which could not have been foreseen and which
could not have been guarded against ”
• Eg. - falling of a tree, flash of lightening, flood,
storm, earthquake etc,.
 Ryland vs Fletcher
Essentials
(1) event should be a result of natural forces
(2) Should be of extraordinary nature
(3) Could not be anticipated or guarded against
(4) Not connected with agency of man

Act of God is question of fact

• Nicholas Vs. Marshland, (1876) 2 Ex. D. 1
• Greenock corporation Vs Caledanian Rly,
(1917) kerala 197
• Att-Gen vs Cory Bros
Indian cases
• Kalloo Lal Vs hemchandra, AIR 1958 MP 48
• Saraswati Parabhai Vs Grid Corporation of
Orissa and Others, AIR 2000 Ori 13
• Shri ram education trust vs Mitaben Anilbha
Patel, AIR 2011 (NOC) 221 Guj.
 Inevitable Accident
• an accident physically unavoidable.

• "People must guard against reasonable

probabilities, but they are not bound to guard
against fantastic possibilities”.

• It does not mean absolutely inevitable but

unavoidable – Pollock
• Brown vs kendall, (1850) 6 cush (60 mass)
292
• Holmes V. Mather, (1857) LR 10 EX. 261
• Stanley v. Powell , (1891) 1 QB 86
• A. Krishna Patra Vs Orissa State Electricity
Board, AIR 1997 Ori 109
Chow Hidasi v. Hidasi, [2011] B.C.J. No.
848; 84 C.C.L.T. (3d) 125 (S.C.).
• plaintiff passenger (the wife) against the driver (the husband) of a
vehicle involved in an accident. The wife was injured in the
accident. The parties were travelling along a mountain road with
which the defendant husband was familiar. He knew it could be
treacherous in the winter, so checked the weather before leaving.
The temperature was above zero and the roads were mostly bare.
The defendant husband testified that he was travelling 100 kph
when he heard a clunking noise and the vehicle suddenly lost
braking and steering capacity. The defendant pulled the emergency
brake, but the vehicle veered sharply into the concrete barriers,
injuring the plaintiff. The plaintiff did not hear the clunking noise,
but felt the vehicle veer sharply and heard the defendant exclaim
that he could not brake.
• The plaintiff argued that the defendant was overdriving the road
and had inadequate tires.
 Justice Barrow confirmed that the
evidence established that:
1. The defendant driver had experienced a
mechanical failure.
2. The brake and steering failure he experienced
was unexpected and was not discoverable
through the exercise of reasonable care
3. His reaction to the circumstances he
unexpectedly faced was reasonable.
 Limitations
1. Negligence
2. Absolute liability and Strict liability
 Statutory authority
• Act done under a authority of statute – is
complete defence.
• Injured party has no right to claim remedies
except - granted under that statute.
• Hammer Smith Rail Co. vs Brand, (1869) L.R.H.L.
17
• Vaughan v. Taff Vole Rly. Co. (1860) 5 H&N 679
• Smith vs london and south western railway co,
(1870) L.R. 6 CP 14
 Absolute and Conditional Authority

• Metropolitan asylum district vs Hill, (1881) 6

AC 193
• Kasturi Lal v. State of UP, AIR 1965 SC 1039
 Judicial or Quasi-Judicial Authority

• No action lies for acts done, or words spoken,

by a judge in exercise of his judicial authority.

• It is founded on the principle of public benefit

that Judges should be at liberty to exercise
their function, independently and without
fear of consequences
• The Judicial Officers Protection Act, 1850
protects a judicial officer only :

1. Act protect a judicial officer only when he is acting in his judicial

capacity and not in any other capacity

2. If the act done or ordered to be done in the discharge of judicial

duties is within his jurisdiction, the protection is absolute and no
inquiry will be entertained whether the act done or ordered to be
done was erroneous, irregular or even illegal, was done or
ordered without believing in good faith, that he had jurisdiction to
do or order the act complained of.

3. If the act done or ordered to be done is not within the limits of his
jurisdiction, the Judicial Officer acting in the discharge of his
judicial duties is still protected, if at the time of doing or ordering
the act complained of, he in good faith believed himself to have
jurisdiction to do or order the act.
4. The expression “jurisdiction” does not mean the
power to do or order the act impugned, but
generally the authority of the Judicial Officer to act
in the matter.

5. If a judicial officer arrest a person ‘recklessly and

maliciously’ not in discharge of the duties of his
office as a magistrate but on the ground that he
acted under the direction of his superior officer, he
can be said to be acting in an executive capacity and
not in a judicial capacity and therefore he is not
protected under the Act.
 Anowar Hussain vs. Ajoy Kumar Mukherjee, AIR
1965 SC 1651
A person was holding two offices: one an
Executive Office as a Sub-divisional Officer
(SDO) and other a Judicial Office as a Sub-
divisional Magistrate (SDM) and had ordered
the arrest of a person for an offence u/s. 436
IPC, but the proceedings were closed without
any trial and thereafter the aggrieved person
filed a suit for damages against Sub-divisional
Officer.
 The Judges (Protection) Act, 1985
• Sec. 3 - Additional Protection to Judges---

(1) no Court shall entertain or continue any civil or criminal

proceeding against any person who is or was a Judge for any
act, thing or word committed, done or spoken by him when,
or in the course of, acting or purporting to act in the
discharge of his official or judicial duty or function.

(2) Nothing in sub-sec. (1) shall debar or affect in any manner

the power of the Central Government or the State
Government or the Supreme Court of India or any High Court
or any other authority under any law for the time being in
force to take such action (whether by way of civil, criminal, or
departmental proceedings or otherwise) against any person
who is or was a Judge.”
 The Judges (Inquiry) Act, 1968
• Act regulates the procedure for the
investigation and proof of the misbehaviour or
incapacity of a Judge of the Supreme Court or
of a High Court and for the presentation of an
address by Parliament to the President and for
matters connected therewith.
• Daya Shankar Vs High Court of Allahabad, AIR
1987 SC 1469
Conduct of judicial officers
• Protection to Judges u/s. 77 IPC---- Nothing is an
offence which is done by a Judge when acting
judicially in the exercise of any power which is, or
which in good faith he believes to be, given to
him by law.
• Powers of Judicial Officers u/s. 228 IPC & Sec.
345 Cr.P.C. : In case any person intentionally
offers any insult or causes any interruption in the
judicial functioning of the court, the presiding
officer may proceed summarily against such
person u/s. 345 Cr.P.C. and may punish him u/s.
228 of the IPC.
 State of U.P. vs. Tulsi Ram, AIR 1971
All 162
An accused was acquitted by Allahabad HC and
the same had been notified to the concerned
Judicial Magistrate, but then to defendant
issued NBW against the acquitted accused and
got him arrested.
Indra Pati Singh vs. State of U.P., 1986
All.L.J. 1258 (All)
• Where some record sent by the court of
Magistrate to a Sarpanch acting under U.P.
Panchayat Raj Act, 1947, got lost and on enquiry
against the Sarpanch was initiated.
• plea - protection under the provision of the
Judicial Officers Protection Act, 1850.
• it was held by the Allahabad High Court that since
the Sarpanch was not acting as a court or
judicial tribunal, therefore he was not entitled to
any protection u/s. 1 of the 1850 Act.
 Delhi Judicial Service Association vs.
State of Gujarat, (1991) 4 SCC 406
Directions issued by Supreme Court -----

(A) A Judicial Officer should be arrested for any offence under

intimation to the District Judge or the High Court as the case may be.

(B) In case of necessity for immediate arrest of a Judicial Officer only

a technical or formal arrest may be effected.

(C) The fact of such arrest should be immediately communicated to

the District and Sessions Judge of the concerned District and the
Chief Justice of the High Court.

(D) The Judicial Officer so arrested shall not be taken to a police

station, without the prior order or directions of the District and
Sessions Judge of the concerned district, if available.
(E) Immediate facilities shall be provided to the
Judicial Officer for communication with his family
members, legal advisers and Judicial Officers,
including the District and Sessions Judge.

(F) No statement of a Judicial Officer who is under

arrest be recorded, nor any panchnama be drawn
up, nor any medical tests be conducted, except in
the presence of the Legal Adviser of the Judicial
Officer concerned or another Judicial Officer of
equal or higher rank, if available.

(G) Ordinarily there should be no handcuffing of a

Judicial Officer.
 Private Defence
• Every person has a right to defend his own person,
property or possession, against an unlawful harm.
• Right to repel force with force.
• Should be defensive and not offensive.

Protection of person
justified – reasonably necessary
1. When there is imminent threat
2. Force used must be proportionate to the force
applied.
Bird v Holbrook. (1821) 4 Bing 628.
Ramanuja mudali vs M. gangan, A.I.R. 1984
Mad. 103
Holmes v Bagge, (1853) 1 E & B 782
Morris v. Nugent , (1836) 7 C & P 572
 Sections 96-106 of the Indian Penal
Code
• As per section 96 IPC nothing is an offence which is
done in the exercise of the right of private defence.
• Further section 97 authorises one to exercise right of
private defence to protect one’s person and property
and also that of other person, subject to restriction as
placed under section 99 that there is no right of private
defence against any act which does not reasonably
cause the apprehension of death or of grievous hurt, if
done…the right of private defence in no case extends
to the inflicting of more harm than it is necessary to
inflict for the purpose of defence.
 Necessity
• Necessity knows no law.
• This is intentional damage to prevent even
greater destruction.
• Salus Populi Suprema Lex - the welfare of the
people is the Supreme Law.
• Cope vs Sharpe, (1891) 1 K.B. 496
A fire broke out on A ’ s land. A ’ s servants were
busy in extinguishing the fire, the gamekeeper of C
(who had shooting rights over A ’ s land) set fire to
some strips of heather extinguished between the
fire and some nesting peasants of C, in a shot, while
the fire was by A ’ s servants. A sued the
gamekeeper for trespass.
The Court held that the gamekeeper was not liable
for there was a real and imminent danger to the
game which justified the action taken by the
defendant.
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 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.
– 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.
Dhania Daji , (1868) 5 BHC (Cr.P.C) 59
A person placed poison in his toddy pots, knowing
that if taken by a human being it would cause injury,
but with the intention of thereby detecting an
unknown thief who was in the habit of stealing the
toddy from his pots. The toddy was drunk by and
caused injury to some soldiers who purchased it
from an unknown vendor.
It was held that the person was guilty under section
328 (causing hurt by means of poison or any
stupefying, intoxicating or unwholesome drug or
other thing with intent to commit an offence), and
that section 81 did not apply.
The common link between necessity and private
defense is “defendants conduct has to be
reasonable in the circumstances”.

difference
• Necessity – harm on an innocent person
• Private defence – harm on plaintiff, who
actually is a wrongdoer.
Scott v Shepherd. (1773) 2 W & B L 892
• Necessity is the macro aspect of private
defense and private defense is a micro aspect.
• in case of private defense attack,
apprehension, threat are important but not in
case of necessity.
• Private defense is available against one self
but necessity is available against the public at
large.
 Mistake
Intended act but based on erroneous belief

Mistake of Law
Ignorantia juris non excusat - no defense

Mistake of Fact.
Good defence in criminal law but not in tort. Plaintiff has
to proof the malice.

Available on:
1. Mistaken Arrest of an innocent person
2. Prosecution of an innocent
Contributory Negligence / Plaintiff ’ s
own default
This defence is raised in an actions for negligence.

It arises when damage is suffered partly by the fault of

the defendant and partly by the fault of the claimant.
The defendant, therefore, attempts to reduce the
damages by proving that the claimant was himself partly
responsible.

In England, the Law Reform (Contributory Negligence)

Act, 1945 provides that in such cases the court shall
reduce the damages by an amount proportionate to the
claimant ’ s share of responsibility.
Sayers v. Harlow (1958)
Mrs. Sayers found herself locked in a public lavatory. Unable
to summon help, she tried to climb out over the top of the
door. She found this impossible and, when climbing back
down, allowed her weight to rest on the toilet roll which ‘ true
to its mechanical requirement, rotated ’ . Mrs. Sayers fell and
was injured.
It was held that 75% of her injury was the fault of the Council
for providing a defective lock which jammed, and 25% was her
own fault.
Stapley v. Gypsum Mines Ltd (1953)
Two minors who worked, in breach of instructions, under a
dangerous roof were held 80% contributory negligent.
Froom v. Butcher (1976)
A front seat passenger injured in a car accident had his
damage reduced by 25% because he had not worn a seat belt.