This document provides an overview of general defences against tortious liability under Bangladesh law. It discusses defences such as voluntary assumption of risk, inevitable accident, act of God, private defence, mistake, necessity, and statutory authority. Specific cases are referenced to illustrate how the courts have applied these defences, such as allowing a defence of consent when injuries occurred during a horse riding photo session, but not when consent for a medical procedure was obtained through fraud. The document was prepared by Abdur Rahman Khan of the Bangladesh University of Professionals Law Department. Contact information is provided for those seeking the full document.

1. Prepared by:
Abdur Rahman Khan
Department of Law
Bangladesh University of Professionals (BUP)
Email: neerab1998@gmail.com

2. JGGGHGH
Lecture- 02
General defences against
tortious liability

3. Overall Brief Regarding General
Defences
❑ https://study.com/academy/lesson/defenses-for-negligence-definition-and-
examples.html

4. General Defences at a glance

5. General Defences in details
❑ After violation of legal right by defendant, Resulting in legal damages,
successfully proving the essentials of a tort, The defendant is held liable.
❖ Few exceptions are treated as defences which can help defendant in
absolving from liabilities. These are-
❖ Volenti non fit injuria
❖ No man can sue for suffering harm if he had consented expressly or impliedly.
❖Wooldbridge Vs. Sumner
Clicking photos during the event, he was severely injured by the
defendant’s horse. Defendant was not held liable as the plaintiff
himself consented and voluntarily came there to click photos.

6. Continued….
❖ If consent obtained by coercion, fraud, mistake etc., defendant held liable.
❖ Lakshmi Rajan Vs. Malar Hospital Ltd.
A 40 years married woman’s breast got lumps. Consent taken by hospital.
During the surgery along with breast’s lumps, her uterus was also removed
without any justification.
❖ R. V. Williams
Teaching students about singing. During the singing lesson convincing a 16 years old
student to give her consent for sexual intercourse to make her a good singer.
❖ R. V. Clarence
Having sexual intercourse with his wife knowing that he is suffering from a
sexually transmitted disease Gonorrhea, Wife sued the husband for doing so

7. Continued….
❖ Smith V. Baker
Carrying stones by defendant with a crane from one place to another place. During the
shift, a stone was felt on the plaintiff & he was injured though he knew the risk & worked
under the crane. Negligence from defendant was found there.
Exception:
Encountering willingly a risk to rescue somebody from an imminent danger created
by the wrongful act of the defendant, defence of consent won’t be apt here.
❑ Haynes Vs. Harwood
Defendant’s two horses in street. A boy thrown a stone towards the horses and
horses started running here and there. This created danger to women and children
in the street. Danger prevented by police. He was injured for doing so.

8. ❑When plaintiff is the wrongdoer
❑ From an immoral cause, no action arises.Derived from the maxim ex turpi
causa. if the plaintiff himself is engaged in the wrongful act, can’t recover
damages.
❑ Bird vs. Holbrook [ (1828) 4 Bing. 628]
❑ Set a spring gun trap by defendant in his garden to protect his property. The
spring gun trap injured Holbrook (Plaintiff) innocent trespasser. Plaintiff sued
the defendant and claimed for damages.
❑Inevitable Accident
❑ Unexpected injury. Despite exercising due care with diligence and ordinary
prudence by a person, not to foresee or avoid accident.
❑ Stanley vs. Powell [1891] 1 QB 86 (QBD)]

9. Continued…
❑ Case note: During focusing on a pheasant by defendant, a member of the
party fired but the bullet hit the branch of the tree that altered its direction
and accidentally wounded the plaintiff.
❑ Brown Vs. Kendall
❑ Case note: Plaintiff’s and Defendant’s dogs were fighting. Defendant threw a stone in
attempt to isolate them but that stone accidentally hit plaintiff standing nearby.
❑ Shridhar Tiwari V. UP State Road Transport Corporation (SRTC)
❑ Case note: Bus of up brtc was passing through a village, suddenly a cyclist came
on the road, to save him bus driver applied brakes. But due to wet roads, it
slipped & collided with another bus.

10. ❑ Act of Allah
❑ Extra ordinary occurrence not foreseen and guarded against, natural cause.
❑ Nichols v. Marshland [ (1876) 2 EXD 1]
❑ The natural stream of a river had been dammed up. An extraordinary rainfall came
and broke the embankments and water escaped and destroyed 4 country bridges.
❑ Ramalinga Nadar vs. Narayana Reddiar
❑ Plaintiff had booked goods with the defendant for transportation. The goods
were looted by a mob, the prevention of which was beyond control of defendant.
❑ Kallulal Vs. Hemchand
❑ Rainfall led to collapsing of defendant’s wall when there was a rainfall of
2.66 inches. In this incident plaintiff lost his2 children.

11. ❑Private defence
❑ Using of reasonable force to protect one’s property or oneself. Not to be liable.
Imminent threat, The using force should be proportionate.
❑ Morris vs. Nugent
❑ Defendant was passing by a house, plaintiff’s dog came and bit him. As soon as the
ran away, defendant shot the dog anyway.
❑ Ramanuja Mudall vs. M. Gangan AIR 1954
❑ Defendant had laid some live electric wire on his land without showing any
visible warning. While crossing it to reach his land, received an electric shock.
❑ Creswell Vs. Siri
Defendant shot plaintiff’s dog during chasing his herd of sheep. No other means
was there to stop the dog at that time, So, defendant shot the dog.

12. ❑ Mistake
❑ Mistake of fact or law, is not a defence in general. When a person carefully
interferes with the rights of another person, it is no defence to say that he had
honestly believed that there was some justification for the same.
❑ Consolidated Co. v. Curtis [(1894) 1 Q.B. 495]
❑ An auctioneer was asked to auction certain goods by his customer honestly
believing that the goods belonged to the customer. He auctioned them and he
paid them to the customer. In fact, the goods belonged to the other person.
❑ Necessity
❑ Necessary attempt for welfare of people is supreme law. To avoid or prevent a
great loss or harm, a defendant can cause lesser harm that is justified.
❑ Cope v. Sharpe [(1891) 1 K.B. 496]

13. Continued…
❑ Case note: Committing trespass to land, Defendant entered plaintiff’s land
to prevent the spread of fire, adjoining land his master had shooting rights.
❑ Carter vs. Thomas [(1891) Q.B. 673]
❑ Committing trespass to land, defendant entered the plaintiff’s premises in good
faith to extinguish a fire at which the fireman had already been working.
❑ Krik vs. Gregory [1891] 1 K.B. 496
❑ After A’s death, A’s sister in law removed the jewellery items with trespass
to jewellery and kept them in another room. Jewellery was stolen by robber.
❑ Vincent vs. Lake Erie Transportation Co, 124 N.W. 221 (Minn. 1910)
❑ a steamship was moored at Vincent’s dock to unload cargo. During storm ship
was secured to dock causing $500 in damage.

14. ❖Statutory Authority
❖ Damage results from the act, which the legislature authorizes or directs to be
done, is not actionable claim. Here injured party has no remedy except for
claiming such compensation provided by the statute.
❖ Hammer Smith Rail Co v. Brand (1869) L.R.H.L. 171
❖ The value of the plaintiff’s property had considerably depreciated due to the noise,
vibration and smoke caused by the running of trains in a railway constructed under
statutory powers. No claim, despite damage was caused.
❖ Smith vs. London and South Western Railway Co. [(1870) L. R 6 C. P. 14]
❖ Servants of a Railway Co. negligently trimmed grass to protect a railway
line. Sparks from an engine set the material on fire. By a heavy
wing, the fire was carried to the plaintiff’s cottage, 200 yards away from
the railway line. The cottage was burnt.

15. Question Answer Session

16. To get full sheets, pdf or hard copy
or learn to me:
Name: Abdur Rahman Khan
LL.B (Hons) (4th year), BUP
Email: abdurrahmankhanneerab@gmail.com
Phone: 01782 760964/01798 438184
Address: Mirpur- 02, Dhaka - 1216