• Lex Specialis

Defences in Tort Law: Inevitable Accident, Necessity, Private Defense

Ritwik Tyagi


In a suit arising out of a tortious act, if all the essential elements of a tort are met, the claimant is entitled to seek legal remedy from the Court in the form of damages, specific restitution or in some cases, an injunction. Unless the defendant is able to provide a justification for his/her actions, the Court would be obliged to find them liable for the tort. However, in such a scenario, the defendant has several modes of defense available to him/her in order to escape the liability. While the defences vary on a case to case basis depending upon the nature of tort committed, broadly speaking, the numerous justifications to tortious liability can be listed as follows:

  1. Inevitable Accident;

  2. Necessity;

  3. Private Defense;

  4. Volenti non fit injuria - Consent as a defence;

  5. Plaintiff the Wrongdoer;

  6. Statutory Authority;

  7. Act of God; and,

  8. Mistake.

These defences are also useful to a defendant for contending that he/she has been unfairly implicated as the tortfeasor and should not be liable for making good any damage suffered by the claimant. Let us consider a few of them in detail in the subsequent sections.

Inevitable Accident

This defence can be used effectively in a tort suit when the liability has arisen out of a mishap or accident which was unpredictable and couldn’t have been prevented with the observance of reasonable care and precaution. As the name itself suggests, the accident was inevitable in nature and the defendant did not have any malafide intention to harm the claimant in the first place. The essence of this defence is that the mishap could not have been prevented even with the exercise of due care, hence the claimant would have inevitably suffered an injury, regardless of the intention of the defendant.

In the case of Brown v. Kendall, the defendant accidentally hit the claimant in the eye with a stick while attempting to separate their dogs from a fight. The Court held that since the defendant had exercised all proper precautions necessary to the exigency of the case, the incident was unavoidable and the claimant was not entitled to recover damages. In the very peculiar case of Fardon v. Harcourt Rivington, the defendants left their dog inside their car, who subsequently broke the glass. The plaintiff got hit by a piece of the broken glass and lost his eye. Here, the Court held that since the incident was inevitable, no liability would accrue on the defendants. People are expected to guard against reasonable probabilities, but are not to guard against fantastic possibilities.

Thus, it can be stated that if the defendant is able to establish that he/she had no control over the occurrence of the accident and the resulting effect it had on the claimant, the defense of inevitable accident will succeed.


This particular defence can be used by the defendant to assert that while the tortious act was intentional, it was committed in order to avoid a greater evil. This defense is based on the Latin maxim, necessitas inducit privilegium quod jura privata, which means that necessity induces a privilege because of a private right. This concept is justified by the popular saying that necessity knows no law. A defendant taking this defense must prove the following four elements in order to succeed:

  • That they were forced to choose between the lesser of two evils;

  • That they acted to prevent the occurrence of further harm;

  • That they had reasonable reason to believe that their existed a direct relationship between their actions and the harm that they were trying to prevent; and,

  • That they had no legal alternative.

Thus, the defense of necessity argues that while there has been an apparent violation of the law, it should be excused as the conduct could not have been avoided, or was perhaps necessary to avoid the occurrence of a far greater harm. In the case of Cope v. Sharpe, the defendant had unlawfully entered the plaintiff’s land in a bid to stop the spread of a fire onto the adjoining lands and prevent further damage. In a suit for the tort of trespass, the Court arrived at the conclusion that the defendant’s actions were borne out of necessity in the face of real and imminent danger and thus there was no liability.

In R v. Bourne, a gynaecologist performed an illegal abortion on a fourteen year old girl who had been raped and became pregnant as a result. The Court acquitted the gynaecologist on the grounds that the abortion was a necessity as the doctor was of the opinion that the continuance of the pregnancy would result in the girl becoming a mental and physical wreck. Thus, the abortion was a necessity which was performed in order to save the life of the girl.

Private Defense

The next defense that is available to a defendant in a tort suit is of private defense. The law permits any person, when faced with an imminent threat, to use a reasonable amount of force to protect their person or property. There are a few essentials which need to be proved in order to succeed in this defense, these are:

  1. Imminent Danger or Threat: The defendant must be faced with an imminent danger or threat to his/her person or property. It is important to understand that use of force can be justified only when it is in the face of danger, and not before or afterwards. Also, the use of force in order to take revenge will also not be justified. For instance, the illustration of the barking dog explains this perfectly. If a dog is barking at a person but does not bite and turns to walk away, it would not be justified for the person to then hit the dog in defense as he/she was no longer facing danger from the dog.

  2. Proportional Response: The force used by the defendant to quell the danger must be proportional to the level of threat faced. For example, erecting electric fencing around private property without putting up requisite warning signs in order to fight intruders would not be a reasonable and proportionate response.

In the case of Bird v. Holbrook, the defendant, after his garden was robbed, had set up a spring gun trap to ward off trespassers. No notice of the trap had been put up by the defendant. The claimant, who did know about the trap, entered the garden to chase after a fowl and accidentally set off the trap. He suffered serious injuries and brought a suit against the defendant. The Court was of the opinion that setting up a trap without putting a notice of the same was an unreasonable response and the defendant was found liable. The Court noted that putting up a notice would have served as a strong deterrent for trespassers, but since the defendant intended for the gun to be discharged, his response was not proportional to the level of threat faced.


In this article, the various defences available to a tortfeasor, such as those of inevitable accident, necessity and private defense, have been discussed in detail. As mentioned earlier, these defences are very useful means for a defendant to escape liability towards the claimant in cases where he/she has been unfairly implicated due to the nature of the circumstances surrounding the tortious act. All the three defences elaborated in the article can be relied upon by a defendant to show that he/she was compelled to act in an unlawful manner on account of the gravity of the situation and thus, they should not be held liable for the tortious activity.


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