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This article is written by Anavi Rohatgi of B.A LLB (Hons.) of University School of Law and Legal Studies, an intern under Legal Vidhiya


Tort law is one of the branches of civil law that governs situations where actions of one person result in harm or injury to another, subsequent to which the former is held liable. Defences in tort law serve as essential safeguards against unwarranted liability, promote fairness and efficiency in legal proceedings, and contribute to the stability and credibility of the legal framework. This article offers an extensive exploration of two crucial defences within tort law: the doctrine of inevitable accidents and private defence. The doctrine of inevitable accidents, originating from common law, serves as an exception to liability in tort law, acknowledging that certain accidents may occur despite reasonable precautions. Additionally, private defence allows individuals to protect themselves, their property, or others from imminent harm and is codified in the Indian Penal Code. However, this right is not absolute, as evidenced by limitations outlined in Section 99 of the IPC which are elaborated in the article further. By providing a comprehensive overview of the two defenses, the article equips readers with a nuanced understanding of tort law’s intricacies and complexities. It underscores the importance of navigating legal frameworks with prudence and diligence, ensuring the equitable administration of justice in civil matters.


Tort law, Defenses, Negligence, Private Defence, Liability, Intentional torts, Strict Liability, Inevitable Accidents, Act of God.


Tort law is a foundational cornerstone in the realm of civil jurisprudence which is applied with the objective to provide remedies to individuals that have suffered any harm or injury due to a civil wrong of another in the form of an act or omission. Etymologically, tort is derived from the Latin word ‘Tortum’ which means ‘to twist’. In law, this connection implies the conduct of an individual which goes against the acceptable norms and standard of behaviour established in a society and therefore considered wrongful. When this wrongful act causes damage to another whether the act is intentional, or due to failure of taking reasonable precautions or as a consequence of an inherently dangerous activity, it provides a ground for the legal system to intervene and redress the grievances of those who suffered any harm. The remedy fulfils multiple objectives of tort law and is not designed solely to compensate the victim. It strives to hold the wrongdoer accountable and therefore deter wrongful conduct by imposing liability while also maintaining the balance between rights of individuals and societal order. Tortious acts fall into three broad categories: intentional torts, negligence, and strict liability. Intentional torts involve purposeful wrongdoing, such as assault, battery, or defamation. Negligence, a prevalent cause of action, pertains to instances where a party fails to exercise reasonable care, resulting in harm to another. Strict liability imposes responsibility without the need to prove fault, often arising in cases of defective products or abnormally dangerous activities. In general course of things, courts impose liability in case of tortious acts however it is possible to escape the same by utilizing defences that have been set in place to ensure rights of the defendant are safeguarded and they are not punished for anything that was unforeseen and out of their control. One will be able to grasp and understand two of these defences by reading further.


The doctrine of inevitable accidents is a legal principle that serves as an exception to the general rule of liability in tort law. In the context of Indian tort law, this defence acknowledges that it is not necessary that no harm will be caused if one takes reasonable precautions. The defendant can shield themselves from liability if they can prove the assertion that the accident occurred due to unforeseen and unpredictable circumstances which the defendant could not prevent despite exercising reasonable care and precautions. The origin of the doctrine can be traced back to the common law legal system, evolving as a response to the complexities of determining fault and liability in certain situations[1]. Courts recognized that there are instances where even the most prudent and careful individuals cannot prevent an accident from occurring. As such, the doctrine of inevitable accidents acknowledges that liability should not be imposed when an accident results from circumstances beyond the control of the party involved. Foreseeability is a concept which intimately connected to this doctrine and underscores that no one should be held liable for an accident which was not reasonably foreseeable based on the information available at the time. In context of the onus of the parties in situations where the defense of inevitable accident is raised, legal authorities affirm that once the plaintiff presents a preliminary case of negligence, the responsibility shifts to the defendant. The defendant must then demonstrate, in detail, how the accident occurred and establish that it was unavoidable even with the utmost care and skill. This shift in onus underscores that the burden of proof lies with the defendant to substantiate the claim of inevitable accident, providing a clear account of the circumstances and persuasively arguing that no amount of care or skill could have prevented the incident.


  • In Holmes v Mather[2], the servant of the defendant was driving some horses on a public highway when they were suddenly startled by a barking dog. The horses therefore ran uncontrollably, despite attempts to regain control, colliding with the plaintiff causing significant injuries. In the case at hand, since the defendant’s servant made considerable attempts to not cause harm it was observed that there was lack of willful or negligent conduct. The servant’s conduct was not considered intentional as it encompasses deliberate, reckless or negligent actions.
  • In the case of Stanley v Powell[3], the legal context surrounded a series of events that took place during a shooting party. Powell, who was a member of the party, discharged his firearm at a pheasant however due to unforeseen turn of events Stanley, another member of the shooting party was injured when a pellet from Powell’s gun deflected of a tree. The court’s ruling in this matter hinged on the determination that Powell’s actions were not characterized by willfulness or negligence. In this particular instance, the court concluded that Powell’s act of firing at the pheasant, which led to the unintended injury due to the pellet striking a tree, did not meet the threshold for liability, emphasizing the absence of willful or negligent behavior on Powell’s part.
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  • In Chow-Hidasi v Hidasi[4], due to occurrence of a car accident the wife sued the husband. The couple was traveling along a mountain road, a route known to the husband. He had checked the weather conditions before departing, and with a temperature above freezing and mostly clear roads, the journey seemed uneventful. However, during the journey, the vehicle lost steering and braking capabilities. The wife was therefore injured and her according to her argument the accident was the result of her husband’s overdriving and inadequate tires. However, Justice Barrow dismissed the claim, noting that the vehicle was equipped with new all-season tires, road conditions were favourable, and the husband’s speed was within limits. It was emphasized by the judge that the failure could not be discovered through reasonable care and the husband was absolved from any liability because of his immediate and reasonable response to the changing circumstances.


Act of God is also known as Force Majeure and refers to an event which is characterized as unforeseeable, extraordinary and beyond human control and intervention. These events are usually natural disasters, such as floods, tsunami, earthquakes among others.

  • One of the key differences between inevitable accidents and Act of God is in their scope. While the former is a broader concept and includes all those circumstances where an accident takes place despite the precautions a reasonable and prudent man would take, the latter includes only those circumstances that are natural and extraordinary which no human foresight could anticipate or prevent.
  • Another difference is that the former is a general defence that is invoked in tort law cases to absolve oneself from liability whereas the latter can be used to excuse parties from fulfilling their contractual obligations when such events occur.
  • Inevitable accidents are centered on human agency. It concerns itself with the actions and omissions of individuals and whether they took reasonable precautions. Events that are considered as an Act of God are completely out of human control and do not include any human agency.


Private defence is a legal principle according to which individuals have the right to protect themselves, their property or others from any harm that is imminent or unlawful. In context of India, this right is codified in the Indian Penal Code (IPC), under Sections 96 to 106. Individuals have the inherent right to use reasonable force to defend themselves and others, which is further validated by this legal concept. There is stringent application of private defence in India and it can only be invoked when certain essentials are followed:

  • Private defence can only be invoked when there is an imminent threat of harm. An individual should be facing danger that is immediate and not remote or based on speculation.

Illustration: ‘A’ approaches ‘B’ with a knife in his hand and a clear intent to cause harm. The threat in this case would be considered imminent and immediate.

  • There must exist reasonable apprehension of danger and the person facing the danger should believe in the necessity of using force.

Illustration: ‘A’ finds a stranger in his house in the middle of the night. There is reasonable apprehension of danger.

  • The force used by the individual facing danger should be proportionate to the danger perceived by the individual. Any excessive force which is in excess of what is needed reasonably is out of the ambit of the right of private defence.

Illustration: ‘A’ slaps ‘B’ and in response ‘B’ shoots ‘A’. This is an example of disproportionate force.

Right of private defence, as provided under Section 97 of IPC, can be exercised against threats to one’s own body or body of another, and property whether movable or immovable of himself or any other person against certain specified offences, namely theft, robbery, mischief, criminal trespass or an attempt of the same.[5] The commencement and continuance of the right of private defence of the body is further elaborated in Section 102 of IPC. According to Section 102: “The right of private defense of the body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence though the offence may not have been committed; and it continues as long as such apprehension of danger to the body continues.”[6]Therefore, the right commences at the moment the person reasonably perceives the threat and continues as long as the danger persists, allowing the individual to take necessary actions to protect themselves until the threat subsides.

Similarly, Section 105 deals with the commencement and continuance of right of private defence of property. It states that:

  • The right of private defense of property against theft continues till the offender has effected his retreat with the property or either the assistance of the public authorities is obtained, or the property has been recovered.
  • The right of private defense of property against robbery continues as long as the offender causes or attempts to cause to any person death or hurt or wrongful restraint or as long as the fear of instant death or of instant hurt or of instant personal restraint continues.
  • The right of private defense of property against criminal trespass or mischief continues as long as the offender continues in the commission of criminal trespass or mischief.
  • The right of private defense of property against house-breaking by night continues as long as the house-trespass which has been begun by such house-breaking continues.[7]

These sections provide clarity regarding the appropriate use of this right and additionally ensure that individuals have legal authority to protect themselves and their property from harm or unlawful aggression.


Section 98 of IPC deals with right of private defense against the act of a person of unsound mind, etc. and states: “When an act, which would otherwise be a certain offence, is not that offence, by reason of the youth, the want of maturity of understanding, the unsoundness of mind or the intoxication of the person doing that act, or by reason of any misconception on the part of that person, every person has the same right of private defense against that act which he would have if the act were that offence.”[8]

This section addresses situations in which right of private defence extends to defending oneself or others against actions of a person who is unable to comprehend the implications and consequences of such action due to unsoundness of mind, intoxication or any other reason of similar nature. It acknowledges that individuals who are mentally incapacitated do not have control over their actions and thus not held accountable for the same, however this provision does not indicate that private defence will be rendered ineffective in case of any harm by actions of such person. The individual being attacked retains the right to use reasonable force to defend themselves without any legal repercussions. Illustratively in case of unsoundness of mind, according to Section 98, if Z, under influence of madness, attempts to kill A; Z is guilty of no offence. But A has the same right of private defense which he would have if Z were sane.   

Similarly, in case an individual is under the influence of any misconception, if, A enters by night a house which he is legally entitled to enter Z, in good faith, taking A for a house-breaker, attacks A. Here Z, by attacking A under this misconception, commits no offence. But A has the same right of private defense against Z, which he would have if Z were not acting under that misconception.


While one can cogently infer the importance of private defence, it is important to emphasize that this defence is not absolute in nature. The statement above is corroborated with the comprehension of Section 99[9] of IPC. This section holds significant importance as it provides clarity on the limitations of this right and includes acts against which the right of private defence can not be invoked. These acts include:

  • Acts done by a public servant or by the direction of a public servant. There are certain essentials that need to be fulfilled before the right of private defence is considered to be ineffective against actions of a public servant. Firstly, the act must be done in good faith and should not be wholly against the provisions of law, rather it may not be strictly justifiable by law. Secondly, the act should not reasonably cause the apprehension of death or of grievous hurt. Thirdly the act must be within colour of the public servant’s office. This means the act is within their official authority and duties.
  • There is no right of private defense in cases in which there is time to have recourse to the protection of the public authorities. If an individual facing any perceived threat has the opportunity to approach law enforcement for protection, then any action taken by the individual based on their own discretion in lieu of relying on established mechanisms will not allow them to use the right of private defence as a shield against liability for such actions. In the case of Mammun V. Emperor, individuals were accused of murder when they ventured out on a moonlit night armed with clubs. They found a man cutting rice in their field and attacked him. The victim had severe injuries and fractures and succumbed to them instantly. The accused attempted to invoke the right of private defence of their property however it was observed that since there was an opportunity and time to recourse to the protection of public authorities, right to private defence could not be applied.
  • The right of private defense in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defense. It lays down the reasonability of the quantum of harm that may be inflicted in order to protect oneself. This provision serves to prevent excessive use of harm and only use the amount of force necessary to repel any threat. In the case of Jai dev v State of Punjab[10], Jai dev was accused of killing Parkash Chand by hitting him with a lathi (stick) during an altercation between the two. Jai dev, the defendant, claimed that he acted in self defense however the court observed that severe injuries were inflicted in Parkash Chand even after he was no longer a threat. It was held that Jai dev’s actions were beyond the scope of self-defence.

Additionally, it is imperative to differentiate between the concepts of private defence and revenge or retaliation. While private defence inherently deals with protection, revenge is fueled by the desire to seek retribution which is often outside the frameworks of the legal system. Courts view such actions taken under the desire to seek revenge as not related to the immediate need of self-protection or protection of others. Individuals who seek revenge may face legal consequences for their actions, as the use of force must be justified by the immediate threat posed.


In conclusion, within the realm of tort law, defences play a crucial role in safeguarding the rights of defendants and ensuring that liability is imposed judiciously. The doctrines of inevitable accidents and private defence serve as vital components of tort law, and helps in exploring nuanced legal avenues and supplements the efforts of defendants to navigate liability in different circumstances. The application of these defences underscores the dynamic interplay between individual rights and societal order within the realm of tort law. While inevitable accidents recognize the inherent uncertainties of life and absolve individuals from liability in certain circumstances, private defence empowers individuals to protect themselves and others from immediate danger. Together, these defenses contribute to the equitable administration of justice, striking a delicate balance between accountability and the preservation of individual liberties. Moreover, landmark judgements provide valuable insights into the application of these defenses in real-world scenarios, shedding light on their practical significance and legal implications. By recognizing the limitations of human agency and affirming the inherent right to self-defense, these defenses play a pivotal role in shaping the contours of civil jurisprudence and ensuring the fair and just resolution of disputes within society.


  1. https://courses.lumenlearning.com/suny-monroe-law101/chapter/general-law-of-torts/ , visited on 02-02-2024
  2. CRAIG GILLESPIE, ANDREA MANNING-KROON, The Defence of Inevitable Accident, Bottom Line Research, https://bottomlineresearch.ca/pdf/the_defence_of_inevitable_accident.pdf
  3. https://blog.ipleaders.in/act-of-god-and-inevitable-accident/ , visited on 03-02-2024
  4. https://timesofindia.indiatimes.com/readersblog/lawpedia/right-of-private-defence-33052/ , visited on 04-02-2024
  5. https://lawpage.in/ipc/article/private-defence , visited on 04-02-2024
  6. https://www.newsclick.in/the-right-private-defense-a-legal-view , visited on 05-02-2024

[1] TUTORIALS POINT, https://www.tutorialspoint.com/inevitable-accident-definition-and-meaning#:~:text=Under%20tort%20law%2C%20the%20doctrine,caution%2C%20prudence%2C%20and%20skill, visited on 03-02-2024

[2] HOLMES V. MATHER, 1875 LR 10 Ex 261

[3] STANLEY V. POWELL, 1 QB 86 (1891)

[4] CHOW-HIDASI V. HIDASI, [2011] B.C.J. No. 848; 84 C.C.L.T. (3d) 125 (S.C.)







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