Defences to the Tort of Negligence

In the instance of "affirmative defenses," when the defendant receives a favorable decision even when all the elements of the tort that the plaintiff alleges were committed against him are present, defense can also be employed in a tighter sense.

What is Meaning of Defence?

In a simple English language, the defence means an act of defending or protecting oneself, or someone else or something against attack or criticism. Likewise, in context of tort law, a "defense" refers to an argument presented by the defendant or his or her legal representative in a lawsuit, which excuses or justifies their conduct and absolves them of liability.

Absolute privilege, abuse of process, arrest, distress, honest opinion, immunity, restriction bars, necessity, qualified privilege, regaining possession of the property or chattels, res judicata, and self-defense are examples of affirmative defenses in general legal system; however, specifically, in tort law, consent, statute of limitation, contributory negligence, self-defense, inevitable event or accident, etc. are reasonable defence. By relying on one of these rules, a defendant seeks to avoid liability rather than by refuting the plaintiff's claims.

Types of Defenses

Major types of defences available in tort law are −


A plaintiff's consent or permission will absolve the defendant of any wrongdoing when a tort is committed, which means that the defendant's conduct interfered with the plaintiff or his or her or property. Even though a defendant's actions might be regarded as unethical or damaging, if the plaintiff permits these interferences to happen, the defendant is not thought to have broken any laws. A plaintiff's permission will absolve the defendant of any wrongdoing when a tort is committed.

When Plaintiff is the Wrongdoer

In cases when the plaintiff committed an illegal or unethical behavior, the law absolves the defendant. Ex turpi causa non oritur action, which literally translates to "no action proceeds from an immoral cause," is the source of this defense. Thus, an illegal conduct committed by the plaintiff itself may result in a strong defense in tort cases. In addition to tort law, this adage also relates to contract, restitution, property, and trusts. When the maxim is correctly used, it completely prevents recovery. Although it covers both immoral and illegal behavior, it is frequently referred to as the "illegality defence." Although it is rarely used, this defense has been under discussion for a while.

Act of God and Force Majeure

When an incident occurs that the defendant has no control over and the harm (such as a natural calamity) is brought about by the powers of nature, the defense of an act of God may be raised in tort cases. In such circumstances, the defendant won't be held accountable in tort law for the accidental harm. Acts of God, Vis Major, and Force Majeure are situations that no human foresight can protect against, of which human wisdom is not required to be aware, and which, when they do occur, are catastrophes for which there is no responsibility to pay for the effects that emerge from them.

An act of God is described as "An act occasioned purely by violence of nature without the interference of any human activity" in Black's Law Dictionary. a basic need resulting from physical factors alone, unaided by human action. It is an accident that could not have been brought about by human action but only by physical ones. A defendant who claims an act of God absolves him of responsibility may disagree that he was at fault. However, occasionally the defendant will dispute causation when making this plea. He may admit his negligence, but he would argue that even if he had exercised reasonable caution, the plaintiff's claimed loss would still have occurred, thus he shouldn't be held accountable for those damages. We may discuss an illustration to help you grasp this.

Inevitable Accident

Accidents that could not have been averted by exercising reasonable care and prudence are considered inevitable. In the paragraph 1183 of Charlesworth on Negligence, Fourth Edition, a "inevitable accident" is described as follows −

“Unless the defendant can demonstrate that anything happened over which he had no control and whose consequences could not have been averted by the use of care and skill, there is no such thing as an inevitable accident.”

Private Defense

Every person has the right to defend his or her life and property, and if necessary, to do so with some degree of force. This right covers all other people and their property in general, not just yourself and your immediate family. This right is recognized by tort law, hence any actions taken by an individual in the course of exercising this right are not subject to tort liability.


The defense of necessity and the defense of the individual are very closely intertwined. The defense of necessity in tort common law allows the State or an individual to take or use another person's property. The necessity defense is often used by a defendant exclusively in cases of willful trespass to chattels, trespass to land, or conversion.


A defendant may raise a number of defenses in a civil case involving a tort of negligence in order to defence oneself from the liability (arose because of the negligent act). In reaction to deliberate torts, there are some typical defenses. The self-defense, property defense, permission, necessity, and justification defenses will be the main topics of discussion in this case.


Q1. What are the common tort defenses?

Ans. In tort law, there are a number of general defenses or general exceptions that you can invoke as an "excuse" to absolve yourself of responsibility. These are the most frequent defenses that can be raised based on the specific facts and circumstances. For instance: factual error, necessity, a divine intervention, the plaintiff's assent, etc.

Q2. Do the remedies for deliberate and negligent torts differ?

Ans. Even while both negligent and purposeful behavior are considered torts, personal injury law treats them differently. Whether your injury claim is founded on carelessness or an intentional tort will affect how it is handled and how damages are given.

Updated on: 22-Feb-2023


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