General Defences

Module 2

When the plaintiff ( claimant) brings an action against the defendant

for a particular tort, the defendant denies/avoids the liability by taking
the plea of some defence
General Defences- Defences which may taken against a number of
wrongs E.g.- Consent can be defence to trespass, false imprisonment etc

Specific Defences- specific to a particular tort

E.g.- Fair comment is a defence to Defamation
Volenti non fit injuria
-Plaintiff voluntarily agrees to suffer some harm- he has no remedy for that in
tort -consent serves as a good defence against him

Consent to suffer harm – express/ implied

E.g. 1. a player in the game of cricket is deemed to agreeing any hurt- likely in the
normal course of game

2. Spectator at a motor race

For the defence consent to be available, act causing harm must not go beyond the
limit of what has been consented.
E.g. 1.Deliberate injury caused by another player- defence of Volenti not
available 2. medical negligence

The consent must be free

Consent obtained by fraud, compulsion, mistake- not free consent
• Hall v. Brooklands Auto racing Club (1932) All E R 208

Spectator at a motor car race injured by the collision of two cars. Held
that the plaintiff impliedly took the risk of such injury- such danger
being inherent in the sport which could be foreseen by the spectator
defendant not liable

• Padmavati v. Dugganaika 1975 A.C.J 222

Two strangers take lift in a jeep. Break down- one of the bolts fixing
right wheel-jeep collapsed- strangers sustained injuries
Held driver not liable- 1. accident
2. strangers had voluntarily got into the jeep
Mere knowledge does not imply consent ( scienti non fit injuria)

Application of maxim- Volenti non fit injuria- two points must be

proved-
• The plaintiff had the knowledge of the risk involved ( the nature and
extent of the risk)
• Knowing the same, agreed to suffer harm/freely consented to suffer
the harm (the plaintiff had a choice as to accept / not to accept the
particular risk)
• Bowater v. Rowley Regis Corpn. 1944 K.B 476
The plaintiff, a cart driver was ordered by the defendant ( master) to drive a horse,
knowledge liable to bolt. Plaintiff protested-but obeyed the orders-plaintiff injured
Defendant put forth the defence of Volenti non fit injuria
-maxim did not apply, plaintiff entitled to recover ( consent was not free)
• Smith v. Baker 1891 A.C 325 (HL)
Stone fell from the crane at workplace- injured the workman (drill- cutting of rock)
▪ Employers negligent in not warning him at the moment of a recurring danger,
though plaintiff had been generally aware of the risk ( it is the duty of employer
to carry on his operations as not to subject those employed by him to
unnecessary risk)
▪ Defendants were liable, volent non fit injuria did not apply ( the employer cannot
invoke the defence to protect him from liability for his wrong/negligence)
Please use these simple illustration to understand the holding of Smith and Baker’s
case better

A patient agreeing to surgery has agreed to suffer injury which is likely to result in
the course of surgery
But, has not consented to suffer harm due to the negligence of the doctor ( here the
doctor cannot use the defence of Volenti non fit injuria to escape liability)
A spectator sitting in a cricket match has consented to suffer injury likely to arise in
the course of game like getting hit by a ball
But, the spectator has not agreed to suffer injury deliberately caused by a player
Please note today we have statutes in regard to employers liability
which prevents employers from relying on the maxim Volenti non fit
injuria
They are liable to compensate the workmen for injury sustained in the
course of employment
( e.g. Workmen Compensation Act, 1923)
Dann v. Hamilton 1939 1 KB 509
• Lady knowing that the driver of car was drunk chose to travel in it.
Degree of intoxication of the driver was less
• Negligent driving- accident – injuries to the lady- filed an action
• Volenti non fit injuria pleaded but held not applicable as the degree
of intoxication of the driver was not to such an extent that taking lift
could be deemed to be consenting to an obvious danger.
Defence of Volenti non fit injuria is inapplicable in rescue cases

Haynes v. Harwood 1935 1 K.B 146

-the defendants left horse van unattended in a crowded street
- Horse bolted when a boy threw stone at them- causing danger to
children and women in the street
- Police constable managed to stop horses, but suffered personal
injuries
- Defendants liable, defence of Volenti non fit injuria not applicable as
 it’s a rescue case
Cutler v. United Dairies Ltd. (1933) 2 KB 146

• Defendant negligently used – restive horse to draw a van- horse

bolted into a open field- driver tried to pacify it- shouted for help
plaintiff attempted to pacify it- suffered serious bodily injury

Plaintiff could not recover damages-Volenti non fit injuria was held
applicable

The element of rescue is less obvious in Cutler case