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STUDY MATERIAL FOR INTERNAL CIRCULATION

COURSE & SEMESTER: 5 YEAR B.A., LLB. II SEMESTER
SUBJECT: LAW OF TORTS

UNIT-II
General Defences, Vicarious Liability.

Previous Questions:
1. What are the general defences in tort?
OR
Explain the general defences available against tortious liability.
2. Explain Volenti non fit injuria as a defence for tortious liability with exceptions.
OR
“Harm suffered voluntarily does not constitute a legal injury and is not actionable”.
Examine the scope of this rule.
3. Explain the following general defences:
(a) Inevitable accident
(b) Act of God
(c) Private defence
4. Explain ‘plaintiff’s fault’ and ‘act of God’ as general defences, with decided cases.
5. Explain ‘act of God’ and ‘inevitable accident’ as general defences to tortious liability.
6. Discuss the liability of master for the wrongful acts of his servant.
OR
Explain the basis of vicarious liability. When the master is liable for acts of his servant?
OR What is vicarious liability? Under what circumstances vicarious liability arises? Explain.
7. Discuss the liability of the State for the torts committed by its Servants.
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8. Examine the general rule that an employer is not liable for the torts of his independent
contractor. Are there any exceptions to it?
9. Explain the liability of the master for the following:
a) Mistake of Servant
b) Fraud of Servant
c) Negligence of Servant
10. Short Notes
(a) Rescue Cases
(b) Vis-major
(c) Statutory Authority
(d) Private defence
(e) Difference between servant and independent contractor
(f) Doctrine of common employment
g) Liability of independent contractor

I. GENERAL DEFENCES
1. Introduction
When the defendant causes harm or injury to the plaintiff, the plaintiff has a
right of remedy by way of compensation in Law of Torts. If the plaintiff fails to prove
the necessary ingredients of a particular tort on which he relies he will fail in his action.
Even if the plaintiff does prove these ingredients, he may still fail in his action if the
defendant justifies his tort on basis of general defences which negative tortious liability
and nullify the tortious liability of a person. These general defences are the
‘justifications or grounds of immunity from liability to an action in tort’. They are the
classes of wrongs which stand outside the sphere of tort. Under general defences or
conditions the act is said to be justified or excused from civil liability based principally
upon public grounds. These, therefore, are the ‘general rules of immunity’ which limit
the general rules of liability of torts.
Sir Frederic Pollock states, “The rules of immunity will limit the rules of
liability. There are various conditions which, when preset, will prevent an act from
being wrongful which in their absence would be wrong. Under such conditions the act
is said to be justified or excused. And when an act is said in general terms to be
wrongful, it is assumed that no such qualifying condition exists”.

2. Why the Name ‘General Exceptions'?

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Under certain conditions an act ceases to be wrongful, although in absence of

those conditions the same act would amount to be a wrong. Under such conditions the
act is said to be justified or excused. These conditions which excuse or justify an act
which would, otherwise, have been a tort may be divided into two categories. First,
those conditions which excuse or justify some specific tort but do not excuse or justify
torts generally. For example truth and fair comment are defences available for the tort
of defamation only. Second, those conditions which are applicable to all torts equally.
For example, defence of consent can excuse any tort. Thus, the second category covers
those “rules of immunity which limit the rules of liability” in general and are called
general exceptions.

3. General Defences
When the plaintiff brings an action against the defendant for a particular tort,
providing the existence of all the essentials of that tort, the defendant would be liable for
the same. The defendant may, however, even in such a case, avoids his liability by taking
the plea of some defence. There are some specific defences, which are peculiar to some
particular wrongs, for example, in an action for defamation, the defences of privilege, fair
comment or justification are available. There are some general defences which may be
taken against action for number of wrongs. For example, the general defence of ‘Consent’
may be taken, whether the action is for trespass, defamation, false imprisonment, or some
other wrong. Specific defences have been discussed along with the particular torts to which
they relate. The general defences are discussed as follows:
1. Defence of ‘Consent’ or Volenti non fit injuria
2. Plaintiff, the wrongdoer
3. Inevitable accident
4. Act of God
5. Private Defence
6. Mistake
7. Necessity
8. Statutory Authority.

i. Consent (Valenti non fit injuria)

It is a good defence to an action against tortious liability that the plaintiff has
voluntarily given up or waived a right against the defendant and therefore he cannot
enforce the same right against the defendant. The maxim is based on sound
principles of justice and good sense. it protects the surgeon who undertakes a
difficult operation and the sword-fencer, boxer or football player, so long as they
follow the rules of the game.

ii. Act of God (vis major)

An Act of God will be an extraordinary occurrence clue to natural causes which is
not the result of human intervention which could not be avoided by any amount of
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foresight and care e.g. a fire caused by lightning. But an accidental fire though it
might not have resulted from any act or omission of common carrier, cannot be said
to be an Act of God.
iii. Inevitable Accident
It is that which could not possibly be prevented by the exercise of ordinary care,
caution and skill. If in the execution of a lawful act by lawful means, done with the
degree of care which the circumstances require, an accident happens, no action lies
for any injury resulting therefrom.

iv. Private Defence

Harm inflicted in defence of one’s person or property is justified if it was
reasonably necessary for that purpose. Self-defence is a permissible defence against an
action on torts. The principle extends not only to the right of a person to protect himself
but also to protect others like his wife, his parents and his child. But the person
concerned is entitled to use such force as is absolutely necessary in the facts and
circumstances of the case for protection of himself or others and he is not entitled to
use force in excess of what is necessary.
v. Mistake
Mistake is the doing of an act under an erroneous conviction, which act, but for
such conviction would not have been done. A mistake of law occurs when a person
having full knowledge of facts comes to an erroneous conclusion as to their legal
effect. However, ignorance of law is no excuse. A mistake of fact is no excuse
except in those cases where motive is an essential ingredient constituting the wrong.

vi. Necessity
No action lies for acts done of necessity to avoid a greater harm. Thus, if a man
throws water on his neighbour’s goods to save them from fire or pulls down his
houses to stop a fire, he is not liable. vii. Exercise of Common Rights.

vii. Plaintiff a Wrong-doer

A person is not disabled from recovering damages for an injury caused to him by
reason of he himself being a wrong-doer, unless some unlawful act or conduct on
his own part is connected with the harm suffered by him as part of the same
transaction.
viii. Statutory Authority
If the Legislature has authorised the doing of an act (which would otherwise be a
wrong), no action can be maintained for that act, and the person injured by such
authorised act will have no remedy except the one provided in the legislation
(statute) itself. It has been noted that if a statute authorises the doing of an act and
damage is caused in doing of that thing, no cause will lie provided that the persons
who are statutorily authorised to do the thing act reasonably and without negligence.
The principle has been extended to cover all those damages which are incidental to
authorised works.
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ix. Conclusion
There are certain justifications which refer only to a particular wrong, or to a small class of
wrongs. These are treated in their proper places. But there are other justifications which are
common to all kinds of wrongs, and to prevent the repetition of these under every wrong
they are collectively treated above.

GENERAL DEFENCES IN DETAIL

1. VOLENTI NON-FIT INJURIA

(CONSENT OR LEAVE & LICENCE)

“Harm suffered voluntarily does not constitute a legal injury and is not actionable”.

1.1.Introduction:
Harm suffered by consent is not actionable. No consent can legalise an unlawful act.
This is usually expressed by the maxim ‘Volenti non fit injuria’ i.e., what is consented to is not
an injury. Damage suffered by consent is not a cause of action. if a person suffers a harm
voluntarily then it does not constitute a legal injury and is not actionable. It is a well established
rule of common law that if a person himself invites a danger and injury is caused to him, nobody
shall be responsible for such injury. Such injury shall not constitute a legal injuria and as such
it is not actionable.
1.2.Meaning
One of the recognised general defences to liability in tort is that the plaintiff consented
or assented to the doing of an act which caused harm to him, the defendant would not be liable.
This is known as Volenti non fit injuria, (Latin: "to a willing person, injury is not done") or
Leave and Licence. This defence is founded on good sense and justice. One who has or assented
to an act being done towards him cannot, when he suffers from it, complain of it as a wrong.
The question of application of the maxim may arise only if it is established that a tort has been
committed by the defendant. The defendant can avoid his liability if he proves that the plaintiff
consented not only to the physical risk or actual damage but also to the legal risk, i.e., the risk
of actual damage for which there will be no redress at law. It is easy to prove this consent where
the plaintiff has entered into a contract wherein he has undertaken to bear the risk himself. But
it may also be inferred from the facts and circumstances of the cases even though there is no
contract between the plaintiff and the defendant. For example, if A and B are competitors in a
boxing match, it is implied that they have consented to bear the risk usually involved. But if
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one of the competitors acts against the rule of the game or uses violence beyond what is
necessarily required, the maxim of volenti non fit injuria will not apply.
The consent may also be inferred from the conduct of the parties. For example, in
Imperial Chemical Industries Ltd. v. Sharwell, 1965, the respondent and his brother, James,
were employed in the appellant’s quarry. In total disregard of the defendant’s order and also
some statutory regulations, they decided to test some detonators without taking the requisite
precautions. Consequently, the respondent was injured in an explosion due to the negligence
of James. He brought an action against the appellants (defendant in the trial court) on the
ground that they were vicariously liable for the negligence of James and breach of statutory
duty in the course of employment. It was held that the appellants were not liable because James
would not have been liable had he been sued. The maxim volenti non fit injuria, applied because
it was clear from the conduct of the respondent that he had consented to the risk or injury
involved.
Tomlinson v Congleton Borough Council [2003] UKHL 47, in this case a man who
dived into a shallow lake, despite the presence of "No Swimming" signs; the signs were held
to be an adequate warning. The maxim volenti non fit injuria applied.
It must be stated that the defence of consent under the existing law extends only to the
bodily injury caused to the plaintiff. Where the injury is caused to the plaintiff's property due
to his own consent it is called his leave and licence.
1.3. Express and Implied Consent
When a person consents to the infliction of some harm upon himself, he has no remedy
for that in tort. In case the plaintiff voluntarily agrees to suffer some harm, he is not allowed to
complain for that act and his consent serves as a good defence against him. No man can enforce
a right which he has voluntarily waived or abandoned. Consent to suffer the harm may be
express or implied.

➢ Express Consent

Consent may be clearly and definitely stated or acted, not suggested or implied. For example,
if a person submits to surgical operation or invites a person to enter his premises, it is the
expressed consent. He cannot sue the surgeon for battery [R. v. Donovan, 1934]or the quest for
trespass However, when advising a patient about a proposed course of treatment, a doctor was
under a general duty to disclose the reasonable information to enable the patient to make a
rational choice whether to agree to or refuse the proposed treatment. Similarly, the invited
person should ring before he enters the premises of the invitee. Similarly, in Chapman v. Lord
Ellesmere [1932 All ER 221] it was held that no action for defamation can be brought by a
person who agrees to the publication of a matter defamatory of himself.
The consent of the players participating in the games of hockey, football, cricket etc. is implied
or inferred in case they are injured while playing the game.

➢ Implied Consent
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Consent will be implied where it is not plainly expressed but the fact or result is known
to everyone. Consent will be implied where the injury complained of was incidental to the thing
consented to. A player in a game of football or hockey cannot sue another for assault or injury
arising in the course of the game. if, however, the injury was due to foul play or to a willful
assault not incidental to the game, it is actionable. A workman who is engaged in a dangerous
work cannot sue the employer for harm necessarily incidental to the work such as handling
dangerous machinery or explosives, working on a high tower or roof, being employed as an
acrobat, a lion-tamer or horse-breaker. In such cases, his consent to the necessary risks of the
employment will be implied. This inference was extended by the doctrine of common
employment to risks due to the faults of fellowworkmen in the same employment. However
consent will not be implied when the risks not necessary or unavoidable and are due to a breach
of duty of the employer to his servant i.e., providing a safe system of work.
In Holms v. Mather [(1875) LR 10 Ex. 261] it was observed that a person going on a
highway is presumed to consented to the risk of possibility of an accident.
In Hall v. Brooklands Auto-Racing Club [(1932) All. ER 221], In this case the plaintiff
was a spectator at a motor car race being held at Brooklands on a track owned by the defendant
company. During racing there was a collision between the two cars, one of which was thrown
among the spectators thereby causing serious injuries to the plaintiff. When plaintiff sued the
defendant for damages, it was held that he had impliedly taken the risk of such injury, as any
spectator watching that sport would reasonably foresee it. Therefore, the defendant was not
liable.
In Padmavati v. Dugganaika, 1975, when the driver of a jeep was going to a petrol
pump for taking petrol, two strangers took a lift in the jeep. Suddenly one of the bolts on the
axle of the right front wheel gave way resulting in toppling of the jeep. Consequently, the two
strangers were thrown out of the jeep and suffered serious injuries and one of them died. It was
held that neither the driver of the jeep nor the master of the jeep were liable because firstly, it
was a case of accident and secondly, the strangers had voluntarily got into the jeep and therefore
the rule of volenti non fit injuria was applicable to the case.
Wooldrige v. Summer, 1963, is a good illustration on this point. In this case, the
plaintiff who was a photographer was taking photograph of a horse show standing near the race
track of the race course of the defendant. One of the horses of the defendants rounded the bend
too fast. The plaintiff was frightened by the galloping horse and fell into the track and was
seriously injured. In spite of this, the horse won the race. It was held that the defendant was not
liable as he had taken due care. They could not foresee that some one would, by seeing the
horses running at a high speed, fall and be injured.
In Thomas v. Quartermaie, 1887, the plaintiff was employed in the defendant’s
brewery. He was trying to remove a lid from a boiling vat, The lid was struck and plaintiff
applied extra strength to pull it. It Come off suddenly and the plaintiff fell into the boiling vat
and was seriously injured. It was held that the defendant was not liable as the danger was visible
and the plaintiff had taken the risk voluntarily.
1.4. Basic Principles of the Maxim ‘Volenti non fit injuria’
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There are basic points which constitute the maxim ‘Volenti non fit injuria’ which the defendant
requires to prove for justifying his tort. They are:
a) Consent Must be Free
The defence of consent is available only when it is shown that the consent given
by plaintiff was free, that is without any fraud, compulsion or coercion. Not only that,
but the act done by the defendant should also be same for which consent is given. For
example, a postman or a meter-reader has implied consent of the occupier of the house
to go up to a particular place to deliver letters or take reading as the case may be. But
if he goes beyond that limit and enters a bedroom or a kitchen without the permission
of the resident, he will be liable for trespass. In case of minors, the consent of parent or
guardians will be admissible as a good defence. Thus where the guardian of a child has
consented to his child’s operation by a surgeon the surgeon cannot be sued for operating
the child without his consent.
• Consent Obtained by Fraud
Where the act of the defendant is in itself unlawful and prohibited by law, no
amount of consent can convert such an act into a lawful act and therefore, the defendant
will be liable despite the consent of the plaintiff. This is illustrated by the case of R v.
Williams, 1923, wherein the accused, a music teacher was held guilty of rape when he
sought consent of a sixteen years old minor girl for sexual intercourse by making her
believe that such an act was in fact an operation which was necessary to improve her
voice.
The Court held that the act of sexual intercourse being unlawful and a
punishable offence, would not become a lawful act on the ground that the girl had
consented to it and the accused had not exerted any pressure on her to give her consent.
In a similar case viz., Hegarty v. Shine, 1878, the Irish Court had exonerated
the paramour of the plaintiff from liability for infecting her with a venereal disease by
concealing the fact that he was suffering from such disease. Giving reasons for the
decision the Court held that mere concealment of facts may not amount to a fraud so as
to vitiate consent, more so because the plaintiff herself had consented for an act which
was immoral.

• Consent Given Under Compulsion is no Defence

Consent is said to be given under compulsion when the plaintiff is placed in a
situation to accept the work which he knows to be risky and dangerous, and would have
normally not agreed to undertake it but for the compelling reasons. For example, it
generally so happens under the master-servant relationship that servant has sometimes
given consent to work; because its refusal would mean his losing the job. Therefore, he
has to choose between the two evils i.e. either to consent to a risk or to be prepared to
lose the job.
The case of Bowater v. Rowley' Regis Corporation, 1944, is an illustration
wherein consent given by the plaintiff under compulsion was held to be no consent and
therefore, the defendant could not escape liability. In this case a horse driven cart driver
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was asked by the defendant to drive with a horse which the driver knew to have bolted
many a times. Therefore he protested to take that horse for driving the cart but had to
ultimately yield to the wishes of the master i.e. defendant in order to remain in job. The
horse, as contemplated bolted thereby injuring the plaintiff. Defendant raised the
defence of plaintiff’s consent which the Court held was not acceptable as it was tainted
by compulsion and the risk of being thrown out of job.
The consent given by a person cannot be considered a free consent until he has
the freedom of choice between the ‘act with risk’ and ’act without risk’. In such case a
man of ordinary prudence will give consent to do an act without risk. But if a man
undertakes an act with risk voluntarily and is injured then he cannot take the plea of
volenti non fit injuria.
There is distinction between ‘submission’ and ‘consent’. Every consent implies
submission but every submission does not imply consent. Mere submission to an act
does not imply consent if the submission has been obtained by fraud or given under
mistaken impression, i.e., without the knowledge of the real nature of the act.

b) Mere Knowledge Doesn’t Imply Consent

It must be pointed out the maxim is Volenti non fit injuria and not scienti non
fit injuria. That is to say, mere having knowledge is no consent. In other words, having
knowledge about a risk or danger is one thing while consenting to such risk or danger
is quite another. For example, the gang men working on a railway track have the
knowledge about the general risk involved in their work due to frequent movement of
trains from either sides but this does not mean that they have consented to be knocked
down by an approaching train. As rightly pointed out by Winfield, mere having
knowledge about the possible harm does not imply consent to suffer such harm.
In Smith v. Baker, 1891, the plaintiff was a worker who was employed by the
defendants for drilling and cutting of rocks. The rock stones were being carried from
one place to another by the stone over-head crane passing over the plaintiff’s head.
While he was at work, a stone fell down from the crane and injured him. The employers
took the defence of plaintiff’s consent which was refuted on behalf of the plaintiff on
the ground that he merely had the knowledge (scienti) of the risky nature of the work
but not consented to it. The defendant employers were therefore, held liable for
negligence in not warning the plaintiff of the falling of stone.
It has been observed by Hallet. J., in Marrington v. Ironbridge Metal Works
Ltd., 1952, that in order to succeed in his defence of volenti, the defendant must prove
that the plaintiff did not merely have the knowledge of the danger or risk but having
this knowledge, he still volunteered to put himself into that risk. In other words, he must
show that plaintiff had consented to the assumption of risk without compensation. The
case of Baker v. T.E. Hokins & Son, 1959, further illustrates this point.
In that case, a well was filled with poisonous fumes due to negligence of the
employer. Two of his workmen working inside the well were badly affected by these
poisonous fumes and therefore, he called Dr. Baker who advised not to enter the well
as it was dangerous and even disastrous. He (Dr. Baker), however, consented to be
dropped inside the well by a rope in order to save the lives of the two workmen who
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were struggling to death. He tied the rope around his waist and asked two women to
drop him slowly inside the well and to pull him out of the well if he made a cry for
rescue. As Dr. Baker went down the well he himself was overcome by poisonous fumes
and on his shouting for help, was pulled from the well and moved to hospital where he
died. The two workmen inside the well had already died. Dr. Baker’s wife sued the
defendants for compensation for her husband’s death. The defendants pleaded volenti,
i.e., consent of the deceased Dr. Baker. They asserted that the deceased had the
knowledge of risk involved in getting into the well in which two workmen were already
struggling for life due to effect of poisonous fumes and having full knowledge of the
danger to life involved in getting into the well, he consented to do so. Therefore, as a
matter of fact it was not only his volenti, i.e., consent, but foolhardy to take that risk.
The Court however, treated it as a rescue case and rejecting the defence of volenti,
awarded damages to the wife of the deceased Dr. Baker.
Where while working for the master, the workmen defies the statutory
provisions and acts ignoring the orders and warning of the employer, and thereby
suffers injury, the defendant's plea of consent as a defence would succeed. Thus in
Imperial Chemical Industries v. Shatwell, 1964, two brothers Shatwel and James were
working in the defendant's quarry. They agreed to explode detonators for testing
without taking necessary precautions and in contravention of the statutory provisions
in this regard. As a result of this Shatwell was badly injured. He sued the defendant
employer for damages holding them vicariously liable for the negligence of the brother
James who was an employee of the defendant. The defendant pleaded volenti, i.e.,
consent of the plaintiff which was accepted by the Court.
• Negligence of the Defendant
For the defence to be available, it is further necessary that the act done must be
the same to which the consent has been given. Thus, if while playing hockey, I am
injured while the game is being lawfully played, I can’t claim anything from any other
player because I am deemed to have consented to the incidents of the game I have gone
to play. In case, another player negligently or deliberately hits me with a stick, I can
definitely make him liable and he can't plead volenti non fit injuria because I never
consented to an injury being caused in that manner. When the plaintiff consents to take
some risk, the presumption is that the defendant will not be negligent. If I submit to a
surgical operation, I have no right of action if the operation is unsuccessful. But if the
operation is unsuccessful because of the surgeon’s negligence, I can bring an action
against him for that. To what I consented was not his negligence. The point is illustrated
by Slater v. Clay Cross Co. Ltd. 1956, in that case, the plaintiff was struck and injured
by a train driver by the defendant’s servant while she was walking along a narrow tunnel
on a railway track which was owned and occupied by the defendants. The company
knew that the tunnel was used by the members of the public and had instructed its
drivers to whistle and slow down when entering the tunnel. The accident had occurred
because of the driver’s negligence in not observing those instructions. Held, that the
defendants were liable.
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According to Salmond consent of the plaintiff may be a good defence for the
defendant under the following circumstances –
(i) Where the plaintiff has expressly or impliedly consented to suffer the
damage or harm resulting from the risk undertaken by him;
(ii) Where having knowledge about the risk or danger, plaintiff voluntarily
puts himself in that situation and consequently suffers injury or harm;
(iii) In cases where the defendant has done a dangerous or harmful act solely
because plaintiff had the knowledge about the risk or danger involved in
that act.

c) Act Must be Lawful

The act to which the plaintiff gives his consent and undertakes to suffer the risk
must be lawful and the method of doing it must also be lawful, otherwise even consent
will not be a good defence for the defendant. Consent cannot make an unlawful act
lawful. No person can give consent to other to commit a crime. For example, according
to a rule the boxing game must be played with gloves. If a person plays this game with
naked hand then it will be an unlawful act and cannot be taken as a good defence in the
Law of torts.
In R v. Donovan [(1934) 2 KB 49], it was observed that no person can give
licence to another person to commit a crime. Winfield said that “Certainly it cannot be
true that the maxim is excluded whenever the act constitutes a crime as well as a tort,
for every assault is criminal, and so are some libels, and yet it is possible, by assent, to
negative tortious liability for many kinds of assault and libel”.
1.5. Limitations of the Doctrine OR Exceptions to the Doctrine of Volenti non fit injuria
As a general rule consent of the plaintiff completely deprives him of his claim for
damages against the defendant. But there are certain circumstances under which plaintiff can
recover damages from the defendant despite his willful indulgence in the wrong caused to him.
These may be captioned as exceptions to volenti as a defence.
a. Where the Act is Itself Unlawful
Where the act itself is unlawful and prohibited by law, no amount of consent can
make it lawful and the defendant will be held liable despite plaintiff’s volenti for the
act. For instance, in Lane v. Holloway, 1967, the plaintiff who was an aged person
challenged the defendant for a dual. The defendant accepted the challenge and moved
towards the plaintiff who inflicted a first blow on his shoulder. Enraged by this, the
defendant hit hard at the plaintiff’s eye which got badly injured. As a result of this
plaintiff had to be operated for the eye injury and there were as many as nineteen
stitches on his face. When he sued the defendant for damages the latter pleaded volenti
(consent of the plaintiff) in his defence. Rejecting the defendant's plea, the Court held
him liable as the act was prima facie unlawful and therefore, plaintiff had the right to
claim damages.
b. Breach of Statutory Duty
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A person guilty of a breach of statutory duty towards another cannot raise the
defence of latter’s consent. For example, where a statute lays down a duty on a factory
owner to fence the dangerous machinery or to provide adequate appliances to prevent
metal dust being inhailed by the workers or to avoid use of certain explosive devices
etc. he will be liable for breach of such statutory duty and cannot plead the defence of
plaintiff’s consent. (Wheeler v. New Morton Board Mills Ltd. 1933)
c. Negligence Cases
The defence of volenti is normally not available in negligence cases. It is generally
seen that drivers give lift to passengers on condition that they should travel at their own
risk. But this does not mean that in the event of an accident they can plead volenti of
the traveller and escape liability. This defence can be available only Where inspite of
other means of transport being available, the plaintiff still chose to travel by the
defendant's vehicle. (Barnett v. British Waterway Board, 1973).
d. Rescue Cases
The defence of volenti is not available to the defendant in rescue cases. When
plaintiff voluntarily takes a risk to rescue somebody from an imminent danger created
by the wrongful act of the defendant, the defence of volenti will not be available to the
defendant and he shall be liable for the injury or damages caused to the plaintiff. Thus
in rescue cases, the plaintiff has full knowledge of the nature and extent of risk or danger
involved in saving somebody and voluntarily lends himself into that danger quite aware
of loss which is likely to fall upon him. Explaining what really constitutes rescue cases,
Justice Cardozo observed, “danger invites rescue , cry of distress is summon to relief--
-law does not ignore reactions of mind”. In such cases defendant's plea that the plaintiff
voluntarily put himself in danger would fail and he will be held liable.
In Brandon v. Osborne, Garrett & Co.1924 (Sky light Case) the Court was called upon
to consider the liability of defendant in case the plaintiff assumes risk in order to rescue
some other person. In this case, the plaintiffs, the husband and his wife were purchasing
some articles in a shop. The defendant was getting the roof of the shop repaired. Due to
the negligence of defendant’s servants a portion of a the plateglass suddenly fell down
from the roof. Seeing the glass falling upon her husband, the wife pushed him aside to save
him from being injured and in this endeavour her leg was strained and injured. The
defendant pleaded that the injury was due to plaintiff’s own risk but the; Court allowed
damages holding that it was a rescue case and therefore, the defence of volenti was
immaterial in the case.
Hynes v. Harwood, 1935, is a leading case on the point. In this case the defendant’s
servant had left a horse van unattended in a crowded street. A boy threw a stone on the
horses and they bolted and started running without the driver causing danger to women
and children on the road. The plaintiff, a police constable, who was on duty inside a nearby
police station saw that persons were in grave danger, ran out and stopped the horses and in
doing so he was seriously injured. He brought an action against the defendant for damages.
The defendant contended that since the plaintiff had voluntarily taken the risk the maxim
volenti non fit injuria will apply and he will not be entitled to damages. But the Court held
that in ‘rescue cases’ the maxim was not applicable and the defendants were liable.
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This decision establishes the rule that if a person, inspired from feelings of moral or
social obligation attempts to protect another person from imminent danger of personal
injury or even of death, whether he is a member of his family or a mere stranger to whom
he owes no duty, and is injured, the maxim volenti non fit injuria will not apply and he will
be entitled to recover damages from the wrongdoer. But this principle will not apply in a
case where there is no question of protection of a person from any danger, but a person
takes the risk only for his name and fame.
Cutler v. United Dairies,1933, is a good illustration on the point. In this case the
plaintiff seeing that the defendant’s horse had gone amuck and fleeing attempted to stop
the horse and was seriously injured. It was held that the principle that mere knowledge of
risk does not imply ‘consent’ rule does not apply to cases where the plaintiff himself
undertakes the dangerous work. There was no need to take the risk.
In Hyatt v. Great Western Rly Co., 1948, the plaintiff an employee of a firm of repairers
of railway wagons, was working in the defendant's premises with their authority to do so.
He found smoke coming out from a wagon and in trying to pull out the fire some drums of
paraffin oil from the wagon, which had been negligently left by the defendant's servants,
fell upon him and he was seriously injured. The Court held that plaintiff was attempting to
prevent spread of fire and therefore, this case fell within the purview of rescue cases.
This rule also applies to cases where an attempt is made to protect the life of the
negligent person.
Baker v. T. E. Hopkins & Sons, 1959, is a good illustration on the point. In this case
due to the employer’s negligence, a well in which two workmen were working, was filled
with a poisonous gas causing danger to the lives of the workmen. A doctor wanted to help
these workmen and tried to go into the well. He was told not so do so in view of the risk
involved in it. In spite of this, he tried to go into the well and was overcome by poisonous
fumes and died on way to the hospital. The doctor’s widow brought an action against the
workmen’s employers for compensation for her husband’s death. It was held that in such
a case the defence of volenti non fit injuria was not available and the defendants were liable
to pay damages to the widow of the rescuer. The Court said that the act of the rescuer was
the natural and probable consequence of the defendant’s wrongful act which he could have
foreseen.
1.6. Conclusion
To conclude Volenti non-fit injuria is an exception to liability in torts. It means: Where
the sufferer is willing, no injury is done. No act is actionable as a tort at the suit of a person
who has expressly or impliedly assented to it. In order to plead this defences, it is necessary
that the plaintiff should have consented to physical risk or damage as well as to legal risk (i.e
he will get no remedy in law).
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2. VIS MAJOR OR ACT OF GOD

Act of God is also recognised as one of the general defences to liability in tort. Act of
God means an act or escape caused directly by natural cause without human intervention
 P a g e | 14

and is “so unexpected that no human foresight or skill could reasonably be executed to
anticipate it”. Thus, an act of God is an act which “is due to natural causes directly and
exclusively without human intervention, and that it could not have been prevented by any
amount of foresight and pains and care reasonably to have been expected from him (i.e.,
the common carrier or the defendant). According to Lord Mansfield, Act of God is
something in opposition to the act of man.
It has been stated in Halsbury’s Laws of England that “An Act of God, in the legal sense
is an extraordinary occurrence of circumstances which could not have been foreseen and
which could not have been guarded against, or more accurately as an accident due to natural
causes, directly and exclusively without human intervention, and which could not have
been avoided by any amount of foresight and pains and care reasonably to be made liable
for it, or who seeks to excuse himself on the ground of it.
The occurrence need not be unique, nor need it be one that happens for the first time; it
is enough that it is extraordinary, and such as could not reasonably, be anticipated and it
must not arise from the act of man”.
According to Pollock, Act of God is an “operation of natural forces so unexpected that
no human foresight of skill could reasonably be expected to anticipate it.”
Act of God is defined to be such a direct, violent, sudden and irresistible act of nature
as could not by any amount of ability, have been foreseen, or if foreseen, could not by (vis
major) any amount of human care and skill have been resisted. Thus those acts which are
occasioned by the elementary forces of nature, unconnected with the agency of man or
other cause will come under the category of acts of God, e.g., storm, tempest, lightning,
extraordinary fall of rain, extraordinary high side, extraordinary severe frost. In order that
a phenomenon should fall within operation of the rule of law with regard to the act of God
it is not necessary that it should be unique, that it should happen for the first time, it is
enough that it is extraordinary, and such as could not reasonably be anticipated.
The word ‘vis major’ imports something abnormal and with reference to the context
means that the property by the act of God has been rendered useless, for the time being.
that Is to say, it was rendered incapable of any enjoyment.
Vis major to afford a defence must be the proximate cause, the cause causans, and not
merely a causa sine qua non of the damage complained of. The mere fact that vis major co-
existed or followed on the negligence is no adequate defence. Before an act of God may be
admitted as an excuse the defendant must himself have done all that he is bound to do. The
legal maxim ‘Actus dei nemini facit injuriam’ means the Law holds no man responsible
for the Act of God.
Three important essentials are needed for the defence of Act of God:
i. There must be working of natural forces; and
ii. The occurrence must be extraordinary and not one which could be anticipated
and reasonably guarded against.
iii. It should not be within human contemplation.
 P a g e | 15

For example, If I tame a tiger and chain it and it injures others, I cannot take the
defence of inevitable accident or act of God, but if the iron chain breaks due to sudden
lightening, the defence of act of God will be available to me.
The defence of act of God was first recognised in Nichols v. Marsland [(1876)
46 LJ. Ex 174]. In this case, the defendant was in possession of some artificial pools or
lakes which were formed by damming a natural stream, A violent storm and rainfall
broke down the embankments, four bridges were carried away because of the great
thrust and rush of water. It caused heavy damage to plaintiff’s property. It was found
that there was no negligence on the part of defendant in the construction of the said
lakes and the rain fall was extraordinary and immemorial. The defendant was therefore
held not liable as the damage caused to the plaintiff was due to act of God.
The defence of an act of God may also be available to a common carrier, if he
can show that the accident was caused due to natural causes directly and exclusively
and without human intervention, and that it could not have been prevented by any
amount of foresight and pains and care reasonably to have been expected from him. But
where the accident is caused because under the influence of exhaustion the driver dozed
off and lost control of the vehicle, the defence of act of God will not apply. This actually
happened in an Indian case, The State of Punjab v. Lalchand Sabharwal, 1975, the
accident resulted as a result of negligence on the part of the driver and the State
Government as his employer is clearly, liable to compensate the respondent for injuries
caused to him in that accident.
Whether an act is an act of God or not is a question of fact in each case. The
criterion is not whether or not the event could reasonably be anticipated but whether or
not human foresight and prudence could reasonably recognise the possibility of such
an event. In the modern time, the courts tend to limit the scope of the defence of act of
God.
The decision of Nichols v. Marsland, 1876 was criticised by the House of Lords
in the Scottish case of Greenock Corporation v. Caledonian Railway Corporation
[(1917) AC 556]. In this case the defendant Railway Corporation constructed a padding
pool for children in the bed of a stream by altering its course and obstructing the natural
flow of water. Due to heavy rain, the water over flooded the stream as its natural flow
was obstructed due to park constructed by the defendants. It spread over the adjoining
area causing damage to plaintiff's property. The plaintiff sued the defendants for
negligence and pleaded that the over flooding of stream water was exclusively due to
defendant’s children park. Rejecting the defence of act of God the Court held that but
for the intervention of the defendant (i.e., construction of children's park) the incident
would not have occurred and therefore, it was a clear case of human intervention for
which the defence of act of God cannot be available.
In Kallulal v. Hemchand, 1958, the defence of act of God was denied to the
defendant on the ground that 2.66 inches rainfall on a day cannot be said to be
something extraordinary and beyond the human contemplation and therefore, the
 P a g e | 16

defendant ought to have anticipated and guarded against such an eventuality. In the
instant case, the wall of the defendant's building had collapsed due to 2.66 inches
rainfall on a day thereby resulting into the death of plaintiff's two children. The Court
held the defendant liable to pay damages to the plaintiff for this causality.
In T. Gajya Laxmi v. Secretary, P.W.D, Tamilnadu, Madras, 1997, a live wire
from the electric pole got disconnected due to heavy storm and rain. It fell on a cyclist
who was passing through the road and he died due to electrocution. When sued by his
legal representatives, the Electricity Board pleaded that it was an act of God as also the
cyclist's own negligence as he should have not came out of his house in such a torrential
storm and rain. Rejecting the defendant's plea, the Court held the Board liable.
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3. INEVITABLE ACCIDENT
All recent authorities support the view that ‘inevitable accident’ negates liability. An
‘inevitable accident’, or ‘unavoidable accident’, is that which could not possibly be prevented
by the exercise of ordinary care, caution and skill. It means an accident physically unavoidable.
As observed by Greene, M.R., an accident is “one out of the ordinary course of things,
something so unusual as not to be looked for by a person of ordinary prudence”. It does not
apply to anything which either party might have avoided.“ If a man carries firearms or drives
a horse, his duty is merely to use reasonable care not to do harm to others thereby; and if
notwithstanding the use of such care an accident happens, he may plead that it was due to
inevitable accident. “People must guard against reasonable probabilities, but they are not bound
to guard against fantastic possibilities.
An accident in its general sense, is any unexpected injury resulting from any unlooked
for occurrence. Thus snow fall cannot be regarded as an accident because it happens in the
ordinary course of things every year, but if a man slips on a banana skin lying on the road and
breaks his leg, that happening to the man is an accident. If a car driver has a heart attack and
there is an accident or a driver after getting the car serviced meets with an accident not because
of any negligence on his part, because the breaks fail all of a sudden, the defence of inevitable
accident will apply.
Damage is said to be caused by inevitable accident when it is not caused intentionally
and could not possibly have been avoided by the exercise of ordinary care and caution on the
part of the person, who caused it. it need not have been inevitable in the strict sense of
incapability of being prevented at all.
In order to constitute inevitable accident, it is essential that the accident should not have
been capable of being avoided by ordinary skill and diligence. In fact, inevitable accident is a
plea to prove that the conduct of the defendant was neither wilful nor negligent and so the
defendant is not liable. If in the exercise of a lawful act a purely accidental casualty arises, no
action can be supported on the injury arising therefrom. But if the act done is unlawful, an
action will lie must guard against reasonable probabilities
 P a g e | 17

The defence of inevitable accident used to be essentially relevant in actions for trespass
when the old rule was that even a faultless trespassery contact was actionable, unless the
defendant could show that the accident was inevitable. In other words, the burden used to be
on the defendant to show that his conduct was utterly without fault, i.e., without negligence.
But according to the recent development the burden of proving negligence whether the action
be framed in trespass or negligence lies on the plaintiff. Therefore, now the plaintiff’s suit,
whether it be in trespass or negligence, fails if he is unable to prove negligence and the Court
is not required to give a finding that the defendant has proved or not proved that the damage
was caused because of inevitable accident. The plea of inevitable accident is thus now not
relevant in these cases. As regards cases of strict liability governed by the rule of Rylands v.
Fletcher, 1868, the form of inevitable accident which is known as ‘act of God’ is alone relevant.
Further, inevitable accident in any form is no defence to a claim based on the rule of absolute
liability as laid down in M.C. Mehta v. Union of India, 1987, which is not subject to any
exceptions. It will thus be seen that the plea of inevitable accident has now lost substantially
all its utility in certain specific cases.

➢ Injury to Eye

Brown v. Kendal, 1859, The plaintiff’s and defendant’s dogs were fighting, the
defendant was beating them in order to separate them and the plaintiff looking on. The
defendant retreated backwards from, before the dogs, and as he approached the plaintiff, with
his back towards him, in rising his stick over his shoulder in order to strike the dogs, he
accidentally hit the plaintiff in the eye, inflicting upon him a severe injury. The plaintiff brought
an action against the defendant. It was held that the act of the defendant in itself “was a lawful
and proper act (to separate fighting dogs was a legal) which he might do by proper and safe
means”; and that if “in doing this act, using due care and all proper precautions necessary to
the exigencies of the case to avoid hurting others, in raising his stick for that purpose, he
accidentally hit the plaintiff in the eye and wounded him, this was the result of pure accident,
or was involuntary and unavoidable, and therefore, an action would not lie”. All that could be
required of the defendant was “the exercise of due care adopted to the exigency of the case”.
Fardon v. Harcourt-Ravington, 1932 The defendant and his wife parked their motor
car in front of a shop and went inside for purchasing something. They left their dog inside the
car. Before leaving the car the defendant had closed its doors properly. The dog had always
been quiet and docile. The plaintiff was passing by the car. The dog, seeing his gorgeous
clothes, was excited and started barking and jumped into the car and smashed a glass panel of
the car. A piece of the glass entered the plaintiff’s eye, which had to be removed. In an action
for damages, it was held that the plaintiff could not recover as there was no negligence on the
part of the defendant in not taking precautions against it.

➢ Injury by Runaway

Horses Holmes v. Mather, 1875 The defendant’s horses, driven by his servant on the
public highway, got restless and ran away on the barking of a street dog and became so
immanageable that the servant could not stop them, but could to some extent, guide them.
While unsuccessfully trying to turn a corner safely and in spite of the best care taken by the
 P a g e | 18

driver to control them they struck the balcony of the plaintiff’s house. Consequently it knocked
the down and injured the plaintiff. The plaintiff who was standing in the balcony was seriously
injured. It was held that no action was maintainable by the plaintiff, for, the servant had done
his best under the circumstances to control the horses.
Sridhar Tiwari v. U.P. State Road Transport Corporation, 1987 When a bus of the
U.P. State Road Transport reached near a Village, a cyclist suddenly came in front of the bus.
Due to rain the road was wet. When the driver applied the breaks to save the cyclist, the bus
skidded on the road and its rear part collided with the portion of a bus which was coming from
the opposite direction. It was found that both the buses were driven at a moderate speed and in
spite of due care on the part of the drivers of both the buses, accident occurred. It was held that
the accident had occurred due to an inevitable accident and therefore the Corporation was not
liable.
Padmavati v. Dugganaika, 1975
Two strangers took lift in a jeep. When the driver was taking the jeep to the petrol pump
station for filling petrol, the bolt fixing the right front wheel of the jeep to the axle gave way
and the right wheel flew away from the axle and consequently the jeep toppled and the two
strangers were seriously injured and one of them died. On inquiry it was found that it was a
sheer accident and there was no evidence to show that the defect was patent and could have
been detected by periodical check-up. It was held that the driver and the master were not liable.

➢ Damage by Explosive Substance

No action can be taken against an accidental damage to the property caused by an

inevitable accident. For example, take the case of Nitro Glycerine case.
Nitro-Glycerine Case, 1872 In Nitro Glycerine case the defendants were a firm of
carriers. They were given a wooden box for being carried from one place to another. They had
no knowledge of the contents in the box, nor there was any indication by which it could be
found that it contained an explosive. Finding some leakage in the box, the defendants took
them to their office to examine it. The office was situated in the house of the plaintiff. While
the box was being opened, the Nitro-Glycerine in the box exploded and damaged plaintiff’s
house. In an action for damages by the owner of the building against his lessees, the carriers, it
was held to be a case of pure accident. It was also held that the defendants could neither with
ordinary prudence suspect that the box contained a poisonous gas like nitro-glycerine, nor was
it their duty to know it. Unless they had knowledge about the explosive, they were not required
to be careful. The Court further said that if person is doing a lawful act and in the course of
doing so, an accident takes place, he would not be liable for the damage, provided he had taken
so much care as a man of an ordinary prudence would have taken in the above circumstances.
In this case, the plaintiffs were doing a lawful act, and they had taken due care. Inspite of this
the accident occurred and, therefore, they were not liable.
National Coal Board v. Evans, 1951
 P a g e | 19

The plaintiff’s predecessors had laid an electric cable under the land of a county council
without their knowledge. The county council for certain purposes employed certain contractors
for extractions. Since the contractors had no knowledge about underground electric cable, they
were damaged in the course of excavations. It was held that the defendants were not liable as
they had no opportunity to discover it. It was the fault of the plaintiff’s predecessors who
wrongfully laid the cable under another’s land. The danger to the electric cable was the result
of an inevitable accident, therefore, defendants were not liable.

➢ Injury by Pellet

Stanley v. Powell, 1891 The plaintiffs and the defendants were members of a shooting
party. The defendant fired at a pheasant (kind of bird) but unfortunately the shot from his gun
hit an oak tree and rebounded and injured the plaintiff, who was engaged in carrying cartridges
and game for the party. It was held that the injury to plaintiff was the consequence of an
inevitable accident and, therefore, the defendant was not liable. The ratio in this case has been
criticised as erroneous, though the decision itself can be supported on the ground of volenti non
fit injuria.

❖ Distinction Between Act of God and Inevitable Accident

An act of God is distinct from inevitable accident. In order that accident may be an act of God
it must have followed directly from natural causes without human intervention. Dr. Winfield
says that “an act of God is much older, much simpler and is much more easily grasped by
primitive people than is the idea of ‘inevitable accident’. A falling tree, a flash of lightning, a
tornado, or flood presents to the observer a simple and dramatic fact which the variest child or
layman would regard as an excuse for harm done without further argument ..... But the
accidents which are not convulsions of nature are a very different matter, To know whether
injury from a run away horse was inevitable, one must ask ‘would a careful driver have let it
run away’ ........ ‘Inevitable accident‘ differs from the act of God in (i) not depending on ‘natural
forces’; (ii) being a general defence.
All cases of ‘inevitable accident’ may be divided into two classes:
(1) those which are occasioned by the elementary forces of nature unconnected with the agency
of man or other cause; and
(2) those which have their origin either in whole or in part in the agency of man, whether in
the commission or omission, non-feasance or misfeasance, or in any other causes independent
of the agency of natural forces. The term “act of God” is applicable to the former class (Nugent
v. Smith, 1876). The latter type of accidents are termed ‘inevitable accident’ or “unavoidable
accidents”.
Thus, if a ship is driven ashore by a tempest, this is the Act of God; but if it is run ashore
during a fog by mistake, however inevitable on the part of the captain, this is the act of man.
So, if a building is set on fire by lightning, this is an act of God; but not so if a similar accident
happens through the upsetting of a lamp by human agency even though this was due to no
negligence.
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Distinction Between Inevitable Accident and the Act of God

Act of God (Vis major) Inevitable Accident

An act of God is a direct, violent,
sudden and irresistible act of nature as
could not, by any amount of human care
and skill have been resisted.
Act of God is Genus
It cannot be controlled by human
beings.
The effect of act of God is extended to
the entire public of that area.
Traffic accident, building collapses,
train accidents etc. are the examples of
the inevitable accident.
Strict liability cannot be imposed in cases of
torts arising out of acts of God.
The Courts have no discretionary power in
dealing with the cases of act of God
An inevitable accident is that which could
not possibly be prevented by the exercise of
ordinary care, caution and skill.
It is a branch of act of God
It can be controlled by human beings.
The effect of act of God is extended to
the entire public of that area.
Storms, earthquakes, volcanic eruptions,
floods etc. Are the examples of act of God.
Strict liability can be imposed on the tortious
liability occurred due to inevitable accidents.
The courts have discretionary power in
determining the defendant’s tortious liability
in case of inevitable accident.

To conclude the defence of inevitable accident is available when the accident cannot be
avoided Inspite of reasonable care. In other words, the accident cannot be anticipated or not
cannot be avoided Inspite of reasonable care. It means that if the accident could be anticipated
and avoided with reasonable precaution, the defence of inevitable accident cannot pleaded and
the defendant is not liable for the damage caused by it.

4. PRIVATE DEFENCE OR SELF DEFENCE

‘Private defence’ means using reasonable force for the protection of his person or
property. Every person has a right to defend his own person, property or possession against an
unlawful harm. The law permits use of reasonable force to protect one’s person or property. If
the defendant uses the force which is necessary for self-defence, he will not be liable for the
harm caused thereby. The use of force is justified only for the purpose of defence. If injury is
caused in exercise of private defence, it will negative the liability of the defence. But private
defence, to be valid, the use of force must be reasonable, necessary and proportionate to the
danger. Private defence is a well-recognised defence in criminal law also. Section 96 of the
IPC specially says that “Nothing is an offence which is done in exercise of the right of private
defence. Some persons regard private defence as a species of self-help i.e., as one of the
remedies for tort. It is true that often what one does in defence of the person or property may
go to the extent of developing into a means of self-help or self-redress.
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Private defence may be of two types : (i) Private defence of person, (ii) Private
defence of property.
➢ Private Defence of Person
Everyone is entitled to the reasonable defence of oneself as well as of those whom he
is bound to support. That is to say, right to private defence of person extends to one’s spouse
and family. But the use of force in exercise of self-defence must be reasonable and
proportionate. Whether the use of force is reasonable and proportionate is a question of fact.
The force used may not be reasonable (i) if, it is not in proportion to the apparent urgency of
the situation, or (ii) there is no necessity for the use of force.
The force used should not be excessive. What force is necessary depends on the
circumstances of each case. In Mc Neill v. Hill [(1929) 2 DLR 296, Per Martin J.A.] it was
observed that while the law recognized the right of self-defence, the right to repel force with
force, no right is to be abused and the right of self-defence is one which may be easily abused.
The force employed must not be out of proportion to the apparent urgency of the occasion.
If A attacks B with a deadly weapon then B is justified in using a deadly weapon to
protect himself. If A attacks B with his fist and in return B takes out his sword and cuts A’s
hand then B here cannot take the plea of use of reasonable force to defend himself. [Collins v.
Renison, (1754) 1 Sayer 138]. One cannot lawfully defend himself against a trivial assault by
inflicting death or grievous bodily injury even though the assault cannot be prevented in any
way.
The right of private defence vested in an individual extends to the protection of one’s
spouse and family and even servant or master. A husband has the same freedom in defending
his wife as defending himself and so also a wife in defending her husband. It is said also that a
man may justify an assault in defence of his master because protection and allegiance are due
to him. So he may justify a defence of his father or mother or children of under age. The force
used by the victim to ward off the injury must be proportionate to the nature of the threatened
evil.
Injuries received by an innocent third person from an act done in self defence must be
dealt with as accidental harm caused from a lawful act.
The principle of private defence extends to the killing of another’s animal if that is
reasonably necessary, in order to save one’s person or property from ‘real and imminent’
danger. The killing, however, would be justified only if the defendant shows that (a) the animal
was actually attacking the defendant or his animals or damaging his property or there was a
real and imminent risk of such attack or damage and (b) there was no practicable means, other
than shooting or stopping the animal committing the injury or damage; or that the defendant,
having regard to all the circumstances in which he found himself, acted reasonably in regarding
the shooting as necessary for preventing the attack or renewed attack.

Illustrative Cases
i. Turner v. Jagmohan Singh, 1905, (Injuring animal to save others)
A vicious stallion(uncastrated adult male horse) repeatedly attacked a pair of mares
belonging to the carriage in which the defendant was being driven, and finally came into
the defendant’s compound in spite of attempts made to prevent him, and continued his
 P a g e | 22

attacks until the defendant got hold of a spear and inflicted somewhat severe wound on the
left hind quarter of the stallion. After this the stallion made off, but subsequently died from
the effects of the wound. It was held that the defendant’s action was justifiable and the
owner of the stallion was not entitled to any damages.

(ii) Morris v. Nugent, 1836, (Shooting dog that has ceased to attack )
Where the defendant was passing by the plaintiff’s house, and the plaintiff’s dogs
ran out, and bit the defendant’s gaiter and on the defendant turning round, raising his gun,
the dog ran away and he shot the dog as it was running away. It was held that the defendant
was not justified in doing so. To justify the shooting of the dog, the dog must be actually
attacking the party at the time.
Chasing by dogs Which causes any real or present danger of serious harm to the
animals chased entitles the owner of the animals to take effective measures of prevention.
But he has to show that there was real and imminent danger and that he acted reasonably
having regard to the circumstances. (Curswell v. Sirl, 1947)

➢ Private Defence of Property

The right of private defence extends to one's property also. But right to private defence
in respect of one’s property can be exercised against a trespass only if there is actual possession
over the property or there is right of possession of property.
A person is entitled to protect his movable and immovable property with the use of
reasonable force if the time demands, during any danger. But, for this purpose, he cannot do
an act which is injurious to his neighbour.
In Moholal v. Bai Jivkore [(1904) 28 Born. 472], a landowner, on whose land there
is a sudden accumulation of water brought there without any fault or act of his, is not at liberty
to let it off on to the land of his neighbour without making that neighbour any compensation
for damage, because the landowner, by doing so, has been able to save his own property from
injury.
In Farrington v. Munisami [(1836) 7 C & P 572], the defendant had for protecting
his potato crops laid traps for trespassing pigs. Plaintiff’s cow, which by straying into the field
fell into a trap and was killed. It was held that the defendant was not liable for the death of the
plaintiff’s cow. It would be difficult if he allured on to his land animals which but for the
allurement would not go there.
In Sarah v. Blackburn [(1830) 4 C and P 91] it was held for the protection of property
also the law permits taking of such measures as may be reasonably necessary for the purpose.
Fixing of broken pieces of glass or spikes on a wall, or keeping a fierce dog can be justified.
In Bird v. Holbrook [(1828) 4 Bing 628], the defendant had kept a spring gun in his
garden, since flowers were often stolen from his garden. The plaintiff, a boy whose fowl had
strayed away, jumped into defendant’s garden to search his missing fowl. He had no knowledge
about the gun there and he got injured. The court observed that the defendant was liable since
he had exceeded the right of private defence to his property by putting spring guns in his garden
without fixing any notice about the same. It was held that the plaintiff was entitled to recover
compensation as the force used here was greater than the occasion demanded.
 P a g e | 23

In Ramanuja Mudali v. M. Gangan, [AIR 1984 Mad. 103], the defendant, a land
owner had laid some live electric wire on his land as a sort of fence. While the plaintiff passed
through the defendant’s land at 10 am to reach his own land, he received a shock from the wire
and sustained injuries. The defendant had given no visible warning about such wire. He was,
therefore, held liable for the injuries caused to the plaintiff.
To conclude private defence is another ground of immunity well known to the law. No
action is maintainable for damage done in the exercise of one’s right of private defence of
person or property provided that the force employed for the purpose is not out of proportion to
the harm apprehended. And what may be lawfully done for oneself in this regard may likewise
be done for a wife or husband, a parent or child, a master or servant. But the force employed
must not be out of proportion to the apparent urgency of the occasion. Thus it is not justifiable
to use a deadly weapon to repel a push or blow with the hand. “Honest and reasonable belief
of immediate danger” is the test. The Indian Penal Code extends the benefit of this defence
even to case of causing death in certain circumstances.

5. MISTAKE
Mistake is an unconscious ignorance or forgetfulness of a fact, past or present, material
to the contract, or a belief in the present existence of a thing material to the contract, which
does not exist; some intentional act, omission, or error arising from ignorance, surprise,
imposition, or misplaced confidence; in a legal sense, the doing of an act under an erroneous
conviction, which act, but for such conviction would not have been done.
Mistake means when one commits an error in understanding or when one understands
or perceives wrongly. As to mistake of law there is a maxim ‘ignorentia juris non excusat’
which means that ignorance of law is no excuse.
According to Salmond, “The plea of inevitable mistake is that although the act and its
consequences were intended, the defendant acted under an erroneous belief, formed on
reasonable grounds, that some circumstances existed which justified him. The plea of
inevitable accident is that the consequences complained of as a wrong were not intended by
the defendant and could not have been foreseen and avoided by the exercise of reasonable care
and skill.”
A mistake may be committed by a person and it may be of two kinds : (i) mistake of law
and (ii) mistake of fact.

➢ Mistake of Law: Ignorantia juris non excusat (ignorance of law excuses no one)
Mistake of law is a mistake as to the legal consequences of significance of an act,
transaction or state of affairs or mistake on point of law. A mistake of Law occurs when a
person having full knowledge of facts comes to an erroneous conclusion as to their legal
effect.
Mistake of Law may be an ignorance or error with respect to some general rules of
the Municipal Law applicable to all persons, which regulate human conduct, and the like;
such as the rules making certain acts criminal, and these controlling the devolution,
acquisition, or transfer of estates, or those prescribing the modes of entering into contracts.
 P a g e | 24

Mistake of law ordinarily means mistake as to existence or otherwise of any law or a

relevant subject as well as mistake as to what the law is.
Mistake of law is generally no defence of civil liberty, for, the rule of “ignorantia
juris non excusat” applies equally to the law of torts as to other branches of law. For
example, in Crabtree v. Dawson [(1904 119 Key 148], the defendant who honestly believed
by mistake that he has an authority to do an act committed a wrong under that mistaken
belief, was held liable on the ground that-mistake of law, even on honest belief, is not
excusable.

➢ Mistake of Fact: “Ignorantia facti excusat” (ignorance of a fact is an excuse)

Mistake of fact is a mistake which takes place when some fact which really exists is
unknown; or some fact is supposed to exist which really does not exist. Mistake of foreign laws
is a mistake of fact. It has got no ground of exemption from liability in tort. The defendant may
be held liable in tort, although his mistake is based on reasonable and honest belief. For
example, in Ransom v. Kitner, [(1888) 31 All App. 241], the defendant killed the plaintiff’s
dog while he was hunting for wolves. The dog of plaintiff had striking resemblance to a wolf.
The defendant was held liable for his act.
When a person has committed some act by mistake, it can’t be said that he has
committed a wrongful act. If a plaintiff moves an action with malice or wrongful motive then
in such circumstances, mistake may be taken as a good defence.
So far as civil liability is concerned, any act of wilful interference with the property,
person, reputation, liberty or other rights of another, a honest and reasonable belief is no
defence. If one person trespasses upon another man’s land, it is no defence to him that he
believed it on good grounds to be his own. For example, A walks over the land of B in the
belief that it is a common ground to take a short cut to the main road. Here A acts under a
mistake. A simply acted on an erroneous belief that the land was not B’s. A commits an
inevitable mistake.
In Consolidated Company v. Curtis (1892) an auctioneer on behalf of his client, sold
and delivered goods to a third person believing the goods as belonging to his client. The goods
actually belonged to another person and the client had, in fact, falsely attempted to pass off the
goods as his own. In an action brought by the true owner, it was held that the auctioneer was
liable to him for conversion of the owner‘s goods. The court further held that the mistaken
belief of the auctioneer was neither honest nor reasonable and they should have ascertained the
client's title over the goods by enquiry and this is where they failed.
In Morrison v. Ritchie and Co. [(1902) 4 F 654], the proprietor of a newspaper erroneously
published a statement that the plaintiff had given birth to twins. He published that statement
under a reasonable belief. In fact she had been-married only a month before. The defendant
was ignorant of the fact of the marriage. The court held that the defendant was liable for
defamation and his defence of mistake of fact was not accepted by the court.
In Glass Poole v. Young [(1829) 9 B & C 696], a sheriff arrests a wrong-person in an improper
or irregular manner e.g., without having the warrant with him at the time of arrest; in execution
of a writ, commits a tort. He is liable for damages though he committed it by a mistake.
 P a g e | 25

In Keep v. Quall-man [(1887) 68 Wis 451] the defendant was held liable when he, while
hunting in a jungle, shot-dead the plaintiff who he reasonably thought to be a deer.
In Basely v. Clarkson [(1682) 3 Lev 37], it was held that to mow the grass of a neighbour
under the honest mistaken belief that it is the mower’s own is a trespass.
In Fowler v. Hollius, 1872 it was held that persons who deal with property in Chattels or
exercise acts of ownership over them do so at their peril and if damage results, they are liable.

To conclude mistake, whether of fact or of law, is generally no defence to an action for

tort. When a person wilfully 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, when, in fact, no
such justification existed. Entering the land of another thinking that to be one’s own is trespass,
taking away another’s umbrella thinking that to be one’s own, or driving of plaintiff’s sheep
amongst one’s own herd, is trespass to goods, and injuring the reputation of another without
any intention to defame is defamation. However, there are certain circumstances when the
defence of mistake of fact will be admissible as a good defence.
---------------------------------------------------------------------------
6. NECESSITY
Shakespeare wrote in one of his plays, ‘Necessity knows no law’. This is relevant to
law of torts. Necessity means that if the circumstances are crying for an immediate action, then
it is not necessary that the law should be strictly followed. So necessity justifies an act which
would otherwise be wrongful. The exception of necessity is founded on the maxim “Salus
Populi Suprema Lex” (the welfare of the people is the Supreme Law). An act causing damage,
if done under necessity to prevent a greater evil is not actionable even though harm was caused
intentionally. But if the necessity has been brought about by the negligent conduct of the
defendant then it does not afford a defence. Basis of this defence “is a mixture of charity, the
maintenance of public good and self-protection, and it-is probably limited to cases involving
an urgent situation of imminent peril”.
‘Greatest good of the greatest member’ is the main object of this maxim. For this,
implied consent is presumed on the part of every person of the society. In time of necessity
individual interest is sacrificed. Therefore, damage caused by acts for preventing greater
damage is not actionable even though harm is caused intentionally. For example, if my
neighbour’s house catches fire and a person pours water on it in order to put it off and thereby
causes some damage to it, he will not be liable. In such cases, the person, who interferes, has
to act before obtaining the consent of the other person. Such acts can be considered to be lawful
when there is immediate necessity for doing it provided it has been done with reasonable care
and precaution.
Following are the examples of acts of necessity-
1. Throwing cargo into the sea to lighten the ship in order to save the ship as well as persons
on board the ship. (Mouse’s case, 1609)
2. To throw water on a house in fire, or putting it down, in order to stop further spread of fire.
(Cope v. Shape, 1891)
3. To pull out drowning person from water or to compel a surgeon to perform operation of an
unconscious person to save his life.
 P a g e | 26

4. Throwing.
5. To forcibly feeding prisoner in jail on hunger strike to save his life. (Leigh v. Gladstone,
1909)

In the above cases the interference had been justified because they were done in order
to prevent greater harm. But if in the circumstances the interference is not reasonable or
justifiable, the defendant can take the defence of necessity for absolving him from liability.
In Leigh v. Gladstone, 1909 the plaintiff who was on hunger strike in prison, was
forcibly fed. He brought an action for damages. It was held that he was not entitled to damages.
It was duty of the jail officials to preserve the health and lives of the prisoners. The plaintiff
did not complain of any undue violence being used towards her. The medical report required
that she be fed immediately as it was dangerous to allow her to abstain from food any longer.
Kirk v. Gregory’s case 1876, is an illustration on the point. In this case after A’s death,
A’s sister-in-law removed her jewellery and kept it in another room thinking that it will be safe
there. But from there, the jewellery was stolen. A’s executors sued the sister-inlaw for trespass
to the jewellery. It was held that the interference was not reasonably justified and therefore she
was liable for the damage caused by the theft of the jewellery.
In Carter v. Thomas [(1891) Q B 673], there was a fire accident occurred in the
plaintiff’s premises. The firemen rushed to the spot with all appliances, and were trying to
extinguish it. The defendant had also entered the premises with good faith, for which the
plaintiff objected. The defendant did not heed the words of the plaintiff and helped the firemen
in extinguishing the fire. The plaintiff sued the defendant for trespass. The Court held that the
defendant was liable for the trespass as his interference was not necessary.

➢ Exceptions
The defence of necessity is subject to certain restrictions:
(1) In the first place, the defence will not succeed if the necessity has arisen out of the
negligence of the defendant himself.
(2) Secondly, there ‘must’ be real and imminent danger to person or property.
(3) Thirdly, a distinction is maintained between safety of human lives and safety of property
for obvious reason that “the two are beyond comparison and the necessity for saving life has at
all times been considered a proper ground for inflicting such damage as may be necessary upon
another’s property.”

In Collins v. Ranison, (1754) the plaintiff climbed on a ladder for nailing a board to a
wall in defendant’s garden. The defendant gave a slight push to the ladder in order to throw the
plaintiff off. When sued for assault and battery, the defendant pleaded that he acted out of
necessity to keep off the plaintiff from nailing the board in his (defendant’s) premises and
intended as little damage to the plaintiff as possible after the plaintiff refused to come down
from the ladder. The Court held that the force used by the defendant was not justified as a
reasonable necessity and therefore, he was held liable.
In Scott v. Shephered (Lighted Squib Case) 1773, the defendant Shephered,
mischievously threw a lighted squib (cigarette end) into a market place. It fell on the shed
 P a g e | 27

where Yates had his ginger bread shop. A person named Willis, in order to prevent injury to
himself and Yate’s shop, picked up the squib and threw it across the road and it fell on the shed
of Royal who took it and threw across when it struck the plaintiff Scott’s eye and caused him
serious injury. The defendant pleaded reasonable necessity and an act of self-protection
because of the intervening act of Yates. The Court rejected the plea of necessity and self-
defence and held the defendant liable.
To conclude an act causing damage, if done under necessity to prevent a greater evil is
not actionable even though harm was caused intentionally. Necessity should be distinguished
from private defence. In necessity, there is an infliction of harm on an innocent person whereas
in private defence, harm is caused to a plaintiff who himself is the wrongdoer. Necessity is also
different from inevitable accident because in necessity, the harm is an intended one, whereas
in inevitable accident, the harm is caused in spite of the best effort to avoid it.

7. PLAINTIFF A WRONG-DOER
According to Sir Frederick Pollock, when the plaintiff himself is a wrongdoer, he is not
disabled from recovering in tort, unless some unlawful act or conduct on his own part is
connected with the harm suffered by him as part of the same transaction. Thus, it has to be seen
as to what is the connection between the plaintiff’s wrongful act and the harm suffered by him.
If his own act is the determining cause of the harm suffered by him, he has no cause of action.
The legal maxim ‘Nullus commodum capere potest de injuria sua propria’ which means
‘No man can take advantage of his own wrong’ elucidates that a wrong-doer ought not to be
permitted to make a profit out of his own wrong. Justice Willes observed “No man is allowed
to take advantage of his own wrong; far less of his wrong intention which is not expressed.”
Another maxim ‘Ex turpi causa non oritur action’ says that ‘From an immoral cause no action
arises’.
It is doubtful whether the defendant can take such a defence of ‘plaintiff the wrongdoer
under the law of forts and escape liability by pleading that at the time of the defendant’s
wrongful act, the plaintiff was also engaged in doing something wrongful. The principle seems
to be that the mere fact that the plaintiff was a wrongdoer does not disentitle him from
recovering from the defendant for latter’s wrongful act. The plaintiff may have to answer for
his wrongful act but he does not forfeit his right of action for the harm suffered.
‘Plaintiff being a wrong-doer’ is not by itself a defence but may be material for other
defences recognised by law. it may be evidence of the plaintiff’s consent or contributory
negligence. It may show the absence of a breach of duty e.g., where a trespasser is hurt by a
vicious dog in the premises, or own negligence or carelessness, it may affect the causal relation
between the defendant’s breach of duty and the damage suffered by the plaintiff.
In Weld Blundell v. Stephens [1920 AC 976] it was observed that no one can recover
damages when the root cause of his damage is his own wrong.
 P a g e | 28

In Siveger v. Allison [1935 (2) KB 403], a woman who agreed to live in immoral
association with a married man on faith of a false representation made by him, was not allowed
to sue him for deceit.
In Green v. Carrol [1961 NZIR 1010] it was held that where two men injure each
other in an unlawful fight none of them can recover damage in tort.
Every participation in unlawful act will not debar the plaintiff from claiming damages
for injury suffered by him. In Bandu v. Naba [1890 ILR 15 Born. 238], it was held that a
trespasser may recover damages if the occupier of the premises uses unreasonable force.
According to Jacob J. there are two requirements
(i) There must be relationship between the criminal act to which the plaintiff is a
party and the act complained of.
(ii) it must be part of the purpose of the law against which plaintiff has offended to
disentitle a person doing the prohibited act from complaining of the other
party’s neglect or default without which his own act would not have resulted in
injury to him.
In Bird v. Holbrook, [(1823) 130 ER 91] the plaintiff, a trespasser over the defendant’s
land was entitled to claim compensation for injury caused by a spring gun set by the defendant,
without notice, in his garden.
Where defendant in his defence contends that the claimant himself / herself was
wrongdoer and, therefore, not entitled to damages, the Court may take this fact into
consideration but it does not necessarily insulate him from liability. Thus in State of
Chhattisgarh (through Collector) v. Smt Manju Bai, 2007, The defendant performed the
sterilisation operation of the plaintiff’s wife but she conceived immediately after sterilization
operation. On being sued, the defendant pleaded that the patient herself was responsible for
this pregnancy because she was advised to maintain abstinence from her husband for a period
of three months after the sterilization operation, which she did not do. That apart, she also did
not get the pregnancy terminated which was permissible under the law. The Court held that the
child born to the plaintiff not being an unwanted child, the claim of compensation was not
justified, particularly when the doctor’s negligence was neither pleaded nor proved. The Court
observed “merely because a woman having undergone a sterilization operation became
pregnant and delivered a child, the operating doctor or his employer cannot be held liable for
compensation on account of unwanted pregnancy of unwanted child. The claim in tort in such
cases can be sustained only if the negligence on the part of the surgeon in performing surgery
and not on account of child birth.”
In a similar case, namely, Dr. Alice George and Another v. Lakshmi, 2007, plaintiff,
a woman having three children decided to undergo tubectomy operation on advice of doctors.
However, despite this operation, she delivered a fourth child. She was advised not to take
treatment for abortion since it may cause complications in her health. The only defence by
defendant's hospital doctors was that even after sterilization operation, there was approximately
0.5% chances of pregnancy. But since the defendants failed to prove that , operation was done
carefully and without any negligence on their part, the Court awarded damages of Rs. 50,000 /
to the plaintiff.
 P a g e | 29

In Pitts v. Hunt, 1990, where a pillion passenger aged 18 encouraged his friend aged
16 to drive recklessly and dangerously after both had been drinking together and the motor bike
met with an accident in which the driver was killed and the pillion passenger suffered serious
injuries. The claim for compensation was made by the pillion passenger against the
representatives of the deceased in negligence which was negatived.
Merely because the plaintiff is a wrongdoer is no bar to an action for the damage caused
to him. He may claim compensation if his wrongful act is quite independent of the harm caused
to him. He may lose his action if his wrongful act is the real cause of his harm. There could be
another situation of contributory negligence in which the plaintiff is not disentitled from
claiming compensation but the compensation payable to him is reduced in proportion to his
own fault in the matter.

8. STATUTORY AUTHORITY
The legislature has very wide powers. Any principle of common law may be reversed
by the Act of Parliament; and so any act or omission tortious under the common law may be
specifically made legal by a statute. It is in this respect, that statutory authority has a defence.
The expression ‘Statutory Authority’ literally means power or authority given by law or
legislature, empowering to do an act. If the defendant commits a tort in discharge of a duty
under statutory authority, the injured party has no cause of action unless there is negligence on
the part of the defendant. For Eg. Maintenance of Railways. If the plaintiff’s land is taken over
for the construction of a railroad, he cannot have any cause of action except claiming
compensation as provided . under the statute. Similarly no action can be instituted for the harm
caused as a result of noise, vibration, smoke, spark etc. by running railways. Here the interest
of the defendant is outweighed in the , interests of the public as a whole.
A person cannot complain of a wrong which is authorised by the Legislature. When a
statute specially authorises a certain act to be done by a certain person, no action lie at the suit
of any person for the doing of that act, Salmond says, “For such a statutory authority is also
statutory indemnity taking away all the legal remedies provided by the law or torts for persons
injuriously affected”. If I construct a bridge under the authority of a Statute and if anybody is
denied his right of way and traffic through that way for a specific period, no suit can be brought
against me for what I have done is in pursuance of statutory authority.
Statutory authority is of two kinds (i) absolute or imperative i.e., authority to do the act
notwithstanding that it necessarily causes nuisance or other injury; (ii) directory or permissive
or conditional i.e., authority to do the act provided it can be done without causing nuisance or
other injury.

➢ Absolute Statutory Authority

Some powers which are conferred by the legislature for a particular thing to be done
regardless of whether it inflicts an injury upon another person, or not it is called as absolute,
mandatory or imperative authority or Absolute authority. When a statute specially authorised
the doing of an act (which would otherwise be a wrong), no action can be maintained for that
act even if it causes injury to anyone; and the person injured is without a remedy except so far
as the Legislature has provided for compensation. But the powers conferred by the Legislature
 P a g e | 30

must be exercised with judgment and caution, and an action will lie if the acts be done
negligently. Thus noise, smoke, smell, sparks, fumes resulting from factories, industries,
refineries etc. set up under a statutory law are actionable as nuisance or negligence.
In Bhogilal v. Municipality of Ahmedabad, [3 Born. LR 415], Municipal authorities
of Ahmedabad demolished a wall of plaintiff under their statutory powers. The roof of plaintiff
also collapsed in the process. On the points raised by the plaintiff, the court held that no suit
will lie against the defendant as they have carried out their duty under statutory powers
although the, plaintiff has suffered injury. The power (statutory) has been exercised reasonably
with judgment and caution. The defence of statutory authority cannot be pleaded when there is
negligence on the part of the defendant.
Green v. Chelsea Water Works Co. (1894) 70 L.N. 547: In this case, the defendant
Company had a statutory duty of continuous water supply. A main belonging to the company
burst without any negligence on the part of the defendants. Consequently, plaintiff’s premises
were flooded with water. The defendant company held not liable on the ground that it was
functioning under statutory authority. The defendant company would be liable, if there was
negligence on the part of the defendant’s servant.
In Vaughan v. Taff Valde Rail Co., 1860, sparks from an engine of the respondent’s
railway company, which had been authorized to run the railway, set fire to the appellant’s
woods on the adjoining land. It was held that since the respondents had taken proper care to
prevent the emission of sparks and they were doing nothing more than what the Statute had
authorized them to do, they were not liable.
Similarly, in Hammer Smith Rail Co. v. Brand, 1869, the value of the plaintiff’s
property had considerably depreciated due to the noise, vibration and smoke caused by the
running of trains on a railway constructed under statutory powers. The damage being
necessarily incidental to the running of the trains, authorized by the statute, it was held that no
action lies for the same.
The burden of proving such absolute authority to do acts which would otherwise be a
nuisance at common law lies on the person who seeks the protection of statutory authority. But,
once the statutory authority is established the immunity will extend to all inevitable results of
the act in question, which cannot be avoided by the exercise of due care and skill. Thus,
statutory authority will be a good defence if there has been no negligence in doing of the thing.
If the thing is done negligently and thereby injury is caused to any person or his property is
damaged, action will lie.

➢ Conditional Statutory Authority

When a statute merely permits a thing to be done, the authority is said to be conditional,
if the Legislature merely gives a discretionary power to do a thing with choice of time and
place, the discretion must be exercised in strict conformity with private rights, and an action
lies if it is done in such a manner as to cause injury. When the authority given is, in the strict
sense of the law, permissive merely, and not imperative, the Legislature must be held to have
intended that the use sanctioned is not to the prejudice of the common law right of others.
Conditional statutory authority is otherwise known as a statutory power.
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A leading case of a conditional or directive authority is that of Metropolitan Asylum

District v. Hill [(1881) 6 AC 193]. In this case a local authority having statutory authority to
erect a small pox hospital was restrained from erecting one in a place where it would have been
a danger to neighbouring residents; the authority was construed as conditional, to erect the
hospital only if the authority could obtain a suitable site where no nuisance would result. The
Appellants in the instant case set up a small-pox hospital in a residential area. It created danger
of infection to the neighboring people. It was held to be a nuisance and the appellants were
issued injunction, to close the hospital since it was set up under the authority of statute
conditionally i.e. the defendant was authorized to set up the hospital without creating nuisance.
Regarding the distinction between absolute and conditional authority, Salmond says, “Absolute
authority is authority to do the act notwithstanding the fact that it necessarily causes a nuisance
or other injurious consequence. Conditional authority is authority to do the act provided it can
be done without causing a nuisance or other injurious consequence. This condition is
sometimes expressed, but is more often left to be. implied from the general provisions of the
statute.”
To conclude a person cannot complain of a wrong which is authorised by statutory
authority. Therefore, if an act is authorised by a statutory enactment or by a law passed by the
Legislature, the defendant cannot be held liable for the damages resulting from such act.
However it must be stated that in the present millennium when the emphasis is on law being
treated as an instrument of attaining social justice, statutory authority as a defence has lost its
credence because the authorities exercising their statutory powers may not be held liable for
their tortious acts but it is their social as well as moral liability to remedy the wrongs caused
by them due to their wrongful acts in pursuance of social insurance policy, which is the
principal objective of law of torts in modern time.

II. VICARIOUS LIABILITY

[ Liability for Wrongs Committed by Others]
1. Introduction
In the beginning, a man redressed his wrong and avenged himself upon his
enemies by his own hands as well as by the hands of his friends and kinsmen. Private
vengeance and violent self-help were common practice in primitive communities. But,
at present day he is defended by the authority of State.
Generally, a person should be held responsible for his own fault. Normally and
naturally a person who has done the wrongful act should alone be made liable for the
injurious consequences arising out of it. This is in keeping with the moral theory that
liability should be based on fault. In the Mosaic legislation, the rule laid down was “the
father shall not be put to death for the children, neither shall the children be put to death
for father, every man shall be put to death for his own sin”. Plato in his laws asserted
that a person should be held responsible for his own sins.
But under certain circumstances a man may be held liable for the wrongful acts
of others. This is popularly known as ‘vicarious liability’.
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2. Meaning and Definition of Vicarious Liability

The word ‘vicarious’ is derived from the English word ‘vicar’ which means a
person who performs the function of someone as his substitute or agent or a deputy or
representative. Vicarious means ‘done or suffered by one person on behalf of another’.
‘Vicarious’, therefore, means acting or substituting for someone else.
‘Vicarious liability’ means liability which is incurred for or instead of another.
Salmond says, “In general a person is responsible only for his own acts, but there are
exceptional cases in which the law imposed on him vicarious responsibility for the acts
of others. however blameless he himself”.
There are some other relationships which may give rise to vicarious liability.
They are mainly:
(1) liability of the principal for the wrongful acts of his agents;
(2) liability of partners of a firm for his fellow-partners for torts committed in
ordinary
cause of business of the firm;
(3) liability of parent or guardian for the wrongful acts of their children/ wards;
(4) master’s liability for the wrongful acts of his servants done in course of his
employment; and;
(5) liability of the state for the torts of its employees.
Under the English common law, there was yet another instance of vicarious
liability, namely, husband's liability for the wrongful acts of his wife because it was
conventionally believed that with her marriage, the personality of the woman was
completely merged with that of her husband and she had no independent personality.
But this rule was abolished by the Law Reform (Married Woman and Tort-feasors) Act,
1935.

3. Principles on Which Vicarious Liability is Based

The doctrine of vicarious liability is based on principles which can be summed up
in the following maxims:

(a) Qui facit per alium facit per se [He who acts through another acts himself]
The maxim means, ‘he who acts through another is deemed in law as doing it
himself’. The master’s responsibility for the servant’s act had also its origin in this
principle.
This maxim enunciates the general rule on which the law relates to the rights
and liabilities of principle and agent.
The acts of the agents are the acts of the principal, if the agent acts in the course
of employment or his duties. Thus, if an agent commits a tort in the course of his
employment, the principal is liable for the tort. But if the tort is committed by the agent
outside the course of employment or without the authority of principal, the principal is
not liable e. g. If X engages Y as a driver for his car, Y negligently knocks down Z,
then X is liable to Z, because Y is X’s servant.
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The reasoning behind the maxim ‘qui facit per alium facit per se’ is that a person
who puts another in his place to do a class of acts in his absence, necessarily leaves him
to determine, according to the circumstance that arise, when an act of that class is to be
done and trust him in the manner it is done, consequently he is answerable for the wrong
of the person so entrusted either in the manner of doing such an act, or in doing such an
act under circumstances in which it ought not to have been done provided what is done
is not done from any caprice of the servant but in the course of employment.
The maxim is applicable to partners also. Every partner is liable for the loss
caused by the wrong of another partner in the management of business.
Where a contract is entered into through authorised agent of a principal, the principal
is the proper party to sue or be sued for a breach of contract because the agent is merely
a medium through which the contract was effected.
The following are some exceptions to this maxim :
(i) If a person contracts as agent for a non-existing principal, the agent himself is
liable;
(ii) If a person professes to a contract as an agent when he, in fact, has no authority,
usually he himself incurs liability;
(iii) If a person continues to act as an agent, in ignorance that his authority has been
determined by his principal’s death or lunacy, may be liable as having impliedly
warranted the continuance of his authority.

(b) Respondent Superior [Superior must be responsible or Let the principal answer]

Another maxim usually referred to in this connection is respondent superior, this

maxim means let the principal or master be liable. In such cases not only he who obeys
but also who commands, becomes equally liable. This rule has its origin in the legal
presumption that all acts done by the servant in and about his master’s business are
done by his master’s express or implied authority, and are, in truth, the acts of the
master. The master is answerable for every such wrong of the servants as is committed
in the course of his service, though no express command or privity is proved. Similarly
a principal and agent are jointly and severally liable as joint wrongdoers for any tort
authorised by the former and committed by the latter.
If a servant / agent causes injury, due to negligence to a third person while acting
for the master / principal, then the master / principal will be held responsible. The
principle of this maxim is that the master / principal enjoys the advantage from the act
done by the servant / agent and he must also be responsible for any injury which a third
person, may suffer due to the act.
The reasons for this maxim are:
(i) The difficulty of proving the actual authority;
(ii) The master / principal usually will be financially capable of bearing the burden.
If the master / principal is not held responsible in this way, then he would always
put the blame on the servant / agent and try to escape scot-free and the third party would
not be compensated. Moreover, imposition of vicarious liability makes the master /
principal more careful in choosing the servant / agent.
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The principle of ‘respondent superior‘is based on the existence of a master-servant

relationship. In Bayler v. Manchester, Dec Rly. Co. [LR 8 CP 148], Kelly C.B. observed:
“Where a servant is acting within the scope of his employment and in so acting does
something negligent or wrongful, the master is liable even though the act done may be the very
reverse of that which the servant was actually directed to do”.
The employer should be made liable because it is he ‘who has set the whole thing in
motion ‘. In fact, the true basis of the rule seems to be public policy.
(c) Vicarious Liability Due to Public Policy (Modern View)
In modern view, the doctrine of vicarious liability is justified on expediency and
public policy. Traditionally it was thought that vicarious liability is based upon the
principles of ‘respondent superior’ (i.e., the responsibility must be that of the superior)
and ‘qui facit per alium facit per se’ (i.e., he who acts through others is deemed in law
as doing it himself). But neither of these two principles explains correctly the reason
for vicarious liability. It is rightly pointed out. “The former merely states the rule badly
in two words, and the latter merely gives a functional explanation of it.” The maxim
respondent superior tells us simply the result and not the reason why employer should
be liable for the torts of his servants.
The maxim qui facit per alium facit per se also fails to explain correctly the
reason for vicarious liability although it is often referred with approval by courts. For
example, in Morgans v. Launchbury and others, 1972, Viscount Dilhorne of the House
of Lords observed: ‘In my view the phrase qui facit per alium facit per se correctly
expresses the principles on which vicarious liability is based.” But this does not seem
to be the correct view because judicial efforts to find a common basis for the maxim
have failed. What was once presented as a legal principle has degenerated into a rule of
expediency, imperfectly defined, and changing its shape before one’s eyes under the
impact of changing social and political conditions. It is also pointed out that the reason
for vicarious liability is that the master being richer than the servant should be held
liable to pay for the torts of his servants.
Thus ‘public policy’ or ‘social convenience and rough justice’ can be said to be
the correct basis of vicarious liability. To conclude in the words of Lord Pearce: “The
doctrine of vicarious liability has not grown from very clear, local or legal principle but
from social convenience and rough justice. The master having employed the servant,
and being better able to make good any damage which may occasionally result from
the arrangement, is answerable, to the world at large for all the torts committed by his
servant within the scope of it.”

4. Modes of Vicarious Liability

A person may be liable in respect of wrongful acts or omission of another in the
following three ways:
(i) Liability by Ratification
When one person authorises another to commit a tort the liability for that tort will
not only be of the person who has committed the tort but also of that who authorised
it. Thus a principal who authorises or procures a tort to be committed by his agent,
will be liable for that tort as if he had committed it himself. Principal and agent are,
 P a g e | 35

therefore, jointly and severally liable as joint wrongdoers for any tort authorised by
the former and committed-by the latter.
If the agent commits a tort while acting on behalf of the principal, but without his
authority and the principal subsequently ratifies and gives his assent to the act done,
then the principal becomes bound by the act and is responsible for it, just as if he
had given a prior authority for its commission. But ratification must take place at a
time when the principal retained the power of lawfully authorising the act to be
done. This is based on the maxim ‘omnis ratihabitio retrorahiturent mandato priori
acquiparatur’ which means every ratification of an act relates back and thereupon
becomes equivalent to a previous request.
The liability by ratification arises where the defendant has ratified the particular
wrongful act or omission. Thus, an act done for B by A not for himself but for B,
though without the authority of B, becomes the act of the principal B if subsequently
ratified by B.
In order to constitute a valid ratification, the following conditions must be satisfied:
a) The wrongful act must have been done on behalf of the principal. No man can
ratify an act, which was done on behalf of the doer himself.
b) The principal ratifying the act must have a full knowledge of the act which has
been done on his behalf, unless he is content to dispense with any such knowledge
and adopts the transaction whether right or wrong.
c) An act which is illegal and void cannot be ratified.
(ii) Liability by Abetment
A person who abets a tortious act is equally liable with the one who commits the
tort. Thus, a person is deemed to be responsible for the consequences of an act if
he:
(a) Knowingly for his own benefit induces another to commit a wrong; or
(b) by the use of illegal means directed against a third party induces a person to do
an act which is detrimental to that third party although the person induced may be
entitled to do that Act.
(iii) Liability by Special Relations
Liability by special relationship arises where the doer of the wrongful act and
the person sought to be responsible are related to each other in a special way. Liability
by special relationship embraces the master-servant relationship, and also that of
principal and agent, and it has a place in partnership.
Yet it may sometimes transcend these close relationships and render a person
responsible for the misdeeds of an independent contractor e.g., builder.

Vicarious liability can be understood under the following heads (i) Principal and Agent; (ii)
Firm and Partners; (iii) Master and Servant and (iv) Independent Contractor.

I. Principal and Agent

‘Principal’ is one who employs another to act for him subject to his general control
and instruction.
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The agent is the substitute or representative of the principal and derives his authority
from him. Agent is a person who, otherwise than as servant and otherwise than as an
independent contractor, whether by way of contract or only by way of request, conducts
some business or performs some act or series of acts on behalf of another i.e., principal.
The vicarious liability of principal for the tort of his agent depends. on the maxim
‘qui facit per alium facit per se’.
When an agent commits a wrongful act in course of his principal's business, the
principal is also held liable along with the agent. The agent is liable because he has
done the wrongful act while the principal's liability is due the agent-principal
relationship. For any act authorised by the principal and done by the agent, both of them
are liable and therefore, they may be sued jointly or severally.
The authority under which the agent has done the principal’s act may be express or
implied. Generally, no principal will authorise his agent to do an illegal or wrongful act
but when the agent has done such an act in the ordinary course of the performance of
his duties as an agent, the principal becomes liable for the same, though he may not
have authorised the agent to do that act.
For example if A authorises B to drive his car and if B meets with an accident and
injures someone, then A will be held vicariously liable. Here, authorisation is an
important ingredient to hold the master liable. The authority may be express or implied.
In Ormond v. Crosville Motor Services Ltd., [(1953) 2 All ER 753], the owner of
a car asked his friend to drive his car but while the car was being driven by his friend,
it collided against a bus. Holding the owner of the car vicariously liable for the injuries
Lord Denning observed:
“The law puts a special responsibility on the owner of a vehicle who allows it to go
on road in-charge of someone else, no matter whether it is his servant, his friend or any
one else. It is being used wholly or partly on the owner’s business or for the owner’s
purpose, the owner is liable for any negligence on the part of driver. The owner only
escapes liability when he lends it or hires it to a third person to be used for purposes in
which the owner has no interest or concern.”
In Lloyd v. Grace, Smith And Co. [(1912) AC 716], the plaintiff was a widow. She
owned two cottages and she was not satisfied with the income from her property. She
consulted Grace, Smith and Co. for their advice. The managing clerk of the company
advised her to sell the cottage and got signed two sale deeds for the purpose. In fact,
they were gift deeds in favour of the managing clerk himself. He then disposed of the
property for his own benefit. It was held that Grace, Smith and Co. were responsible
for the fraud of their agent even though the agent was acting for his personal benefit
though they had no knowledge of the fraud.
Where the agent has done an act without the principal's express or implied consent
or authority, the principal may still be made liable if he ratifies the agent's act but the
act so ratified must have been done by the agent on behalf of the principal. If it is not
done on behalf of the principal but by the agent on his own behalf, the principal cannot
be held liable for such act.
In Dharnidhar Panda v. State of Orissa,2005, the management of the school was
entrusted to the local village Education Society which was acting as an agent of the
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State Government, therefore, the State-was held vicariously liable for the death of
children caused due to sudden falling of, the pillars and fencing wall of the school.
In Morgans v. Launchbury [1973 AC 127], the respondents were injured while
being negligently driven by M in the applicant’s car. The appellant had allowed her
husband to use the car, and the husband, being intoxicated, had requested M to drive.
There was evidence that husband had promised the appellant that, should he ever
become intoxicated, he would ask another person to drive the car. It was held that M
was not the appellant’s agent since she had not delegated the task of driving to him.
The appellant was, therefore, not liable for the respondent’s injuries. Thus although a
person who uses another person’s vehicle is the latter’s agent, the owner will not be
liable unless he has delegated to the user some duty or task.
A most important exception to this rule is where the relation of principal and agent
doesn’t exists between the principal and the agent.
In Tirlok Singh v. Kailash Bharti [1986 ACJ (P & H)126], the younger brother
of a motor cycle owner took the vehicle while the owner was outside the country and
without his knowledge or permission. While so driving, he met with an accident. It was
held that the younger brother could not be deemed to be the agent of the owner of the
motor cycle and the latter could not be vicariously liable for the accident.
If, an agent is not acting within the scope of his authority the master will not be
responsible. In State Bank of India v. Shyama Devi [AIR 1978 SC 1263], the
plaintiff’s husband gave some amounts and cheques to his friend, who was an employee
of the StateBank of India to deposit the same in the plaintiff’s account. The employee
misappropriated the amount. It was held that the defendant bank could not be made
liable for, when the employee committed the fraud he was not acting either as an agent
or an employee of the bank but in his private capacity as the depositor’s friend.
In Krishan Kaushik v. Union of India [AIR 2005 Del. 276]. postal employee
deposited nominal amount in petitioner’s account and he forged passbook with entry of
full amount issued. The court directed to pay the post office the sum deposited with
interest to the petitioner.

II. Firm and Partners

The relationship between a firm and its partners is the relation of principal and agent. The
firm is answerable for wrongs committed by one of the partners in the course of the firm’s
business and within the scope of the usual authority, though no benefit be derived therefrom
by the other partners.
In England, the Partnership Act, 1890 lays down : “Where by any wrongful act or omission
of any partner acting (a) in the ordinary course of the business of a firm, or (b) with the
authority of his copartners, loss or injury is caused to any person not being a partner in the
firm is liable therefore to the same extent as the partner so acting or omitting to act”.
When the firm is liable, the individual partners are jointly and severally liable.
In India, Section 26 of the Partnership Act, 1932 provides : “Where for any wrongful act
or omission of any partner acting in the course of the business of the firm, or with the
authority of his copartners, loss or injury is caused to any person not being a partner in the
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firm, or any penalty is incurred, the firm is liable therefore to the same extent as the partner
so acting or omitting to act”.
And the Partnership Act, 1932, in Section 25 provides that the liability of the partners is
joint and several.
For the tort committed by any partner in the ordinary course of business of the firm, all the
other partners are liable therefor to the same extent as the guilty partner. In Hamlyn v.
Houston & Co. [(1903) 1 KB 81], one of the two partners of the defendant’s firm, acting
within the general scope of his authority as a partner, bribed the plaintiff’s clerk and induced
him to make a breach of contract with his employer (plaintiff) by divulging secrets relating
to his employer’s business. It was held that both the partners of the firm were liable for this
wrongful act (including breach of contract) committed by only one of them.

III. Master and Servant

Historically, the concept of vicarious liability seems to have emerged by the middle
of the 19th century due to unfolding economic stresses of the time. It seems to have
arisen from cases where the employer had expressly ordered his servant to commit a
wrong. But in the modern sense this is not vicarious liability at all because one who
orders a wrong to be committed is, truly Speaking a direct participant in the wrong
doing and the existence of an employment relationship is, therefore, not really material
in such cases. It is the implied authority of the master, which renders him vicariously
liable for the wrongful acts of his servant which are done in his course of employment.
Obviously, the doctrine of 'implied authority' has its origin in the 18th century Industrial
Revolution in England, which eventually culminated into 19th century doctrine of
‘scope of employment’ by the force of gradual social and economic developments
around the world.
The master is held liable for the wrongful acts of his servant because the act of
servant is deemed to be that of master's as well. This principle of vicarious liability is
founded on two well-known maxims ‘Respondent Superior’ and ‘qui facit per alium
facit per se.’ The first literally means let the master or principal be answerable (liable),
while the second implies that he who acts through another is deemed in law as doing it
himself.
For the liability of a master to arise, the following two essentials are to be present:
(1) The tort was committed by the ‘servant’
(2) The servant committed the tort in the ‘course of his employment’

In Site Ram Motilal Kala v. Santenee Prasad Jai Shanker Bhutt [AIR 1966
SC 1697] it was observed: “A master is vicariously liable for the acts of his servant
acting in the course of his employment. For the master’s liability to arise, the act must
be a wrongful act authorised by the master or a wrongful and unauthorised mode of
doing some act authorised by the master…. a master is not responsible for the
negligence of other wrongful act of his servant simply because it is committed at a time
when the servant is engaged on his master’s business. It must be committed in the
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course of that business so as to form a part of it and not be merely coincident in time
with it. The scope of employment of a servant need not be viewed narrowly but the
essential element is that the wrong must be committed by the servant during the course
of his employment.

➢ Principles to Determine Master-Servant Relationship for the Purpose of Vicarious

Liability
The liability of a master for torts committed in the course of employment is joint
and several. A master is vicariously liable for the act of his servant acting in the course
of his employment. Unless the act is done in the course of employment, the servant’s
act does not make the employer liable. In other words for the master’s liability to arise,
the following essentials must be there:
(a) The person committing the tort must be servant i.e., existence of Master-servant
relationship;
(b) The tort committed by the servant must be in the course of his employment;
(c) The act must be a wrongful act authorised by the master or a wrongful and
unauthorised mode of doing some act authorised by master.

A. Existence of Master-Servant Relationship

If the plaintiff wants to succeed in an action against the defendant under vicarious
liability the first thing he has to prove is that the master and servant relationship exists
between the defendant and the wrongdoer. It is only after this fact has been proved that
the Court will consider whether the act alleged was done by the servant in course of
employment.
In cases involving vicarious liability, the servant will always want to shift the liability
of his wrongful ad on his master. Whereas, on the other hand, the master would refute
the existence of master and servant relationship between himself and the wrong-doer
and if he fails to do so, he may then take the plea that the said act was not done by the
servant in course of his employment. It is, therefore, necessary for the Court to consider
these aspects of the case in order to decide it under the vicarious liability rule.

• The Control Test

In order to ascertain the existence of master-servant relationship, the Courts generally
make use of the traditional 'Control Test' and where it fails, the modern organisation
Test is applied for this purpose.

• Who is a servant?
A servant is any person who works for another for a salary in the eye of the law.
According to Webster Dictionary, “A servant is one who serves or does service
voluntarily or involuntarily; a person who is employed for another for menial offices or
for other labour, and is subject to his command; a person who labours or exercises
himself for the benefit of another, his master or employer, a subordinate helper".
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“A servant may be defined as any person employed by another to do work for

him on terms that respect of the manner in which his work is to be done”.
In order to decide as to who is a servant, the control test is generally invoked by
the Courts. A person is said to be the servant of other, if he works under the control of
such other. It implies ordering the servant what is to be done and how and when it is to
be done. Depending upon the control of master on the person he is said to be a ‘servant’.
Under the ‘contract of service’ a master has the control over the servant by ordering or
requiring him “what is to be done” and “how it shall be done”. If a master controls a
man by ordering him ‘what is to be done’ and ‘the manner in which the work has to be
done’, then the man is a servant, otherwise he is not. For example A is the car owner.
B is his driver. A gives salary to B. B works as a driver under the control of A. Here B
is A’s servant.

• The Organisation Test

In the modern time the efficacy of control test has diminished due to changed
industrial relations and the Courts have shifted the emphasis from ‘effective control' to
possible control.
Thus a road-hauler who provides his truck may be an independent contractor
even if he works exclusively for one customer while a radio artist engaged to participate
in a certain play is a servant although he receives a fee rather than a salary. Therefore,
a ‘composite’ approach for determining the master-servant relationship is found to be
more effective and expedient as a matter of social policy. The control test, no doubt will
have its significance but it can no longer be regarded as a sole determining factor in
view of the expanding dimensions of finance, investment and management for
performing of quite a large number of tasks.

➢ Futility of Control Test in Hospital Cases (Whether Doctors in Hospitals are

Servants?)
The futility of control test drew attention of the Courts particularly in hospital cases
when the liability of the master, i.e., owners or proprietors of hospital could not be sustained
for damage or injury caused due to professional incompetency and lack of adequate skill of
doctors and nurses working in hospitals. In other words, applying the control test, it seemed
absurd to hold the hospital authority vicariously liable for negligence in matters involving the
exercise of professional skills by doctors, house surgeons, staff anesthetists, radiographers,
qualified nurses etc. The reason being that while treating a patient or performing an operation,
the medical officers use their independent personal skill, knowledge and discretion in
organising the medical activity although they are salaried persons of the hospital authority.
Therefore, it cannot be said that they perform their medical activities under the direction and
supervision of the hospital authority which is their master. A new test called the organisation
test was therefore, considered to be a better alternative for determining the master-servant
relationship, particularly in regard to hospital cases. Some of the leading decisions which may
be cited to illustrate this point are as follows.
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In Hiller v. St. Bartholomew’s Hospital, 1909, the hospital authorities were held not
to be vicariously liable for the negligence of their qualified and skilled medical staff such as
surgeons, nurses etc., caused while working in their professional capacity. In this case, the
plaintiff suffered an arm bruise due to burns received on account of contact with hot water in
operation theatre due to negligence of the nurse. The Court held the hospital authority not liable
for this professional lack of skill and negligence of the nurse. It was held that the master-servant
relationship between the hospital authorities and its professional employees ceases as soon as
they enter the operation theatre and the door of the theatre is closed, the reason being that the
entire process of operation is wholly organised by the skilled doctors and nurses and during
that period, the hospital authorities have no control or supervision over their medical staff. Nor
do they direct them as to how, when and where the operation is to be done. Thus the myth of
control test was exploded and organisation test was applied in this case.
However, in Cassedy v. Ministry of Health, 1951, it was held that though hospital
authorities have no control on the professional activity of their skilled medical personnel they
are vicariously liable. In this case the plaintiff admitted in the hospital of the defendant as he
was suffering from a contraction. The surgeon conducted operation with the help of other staff
and the staff bandaged the hand of the plaintiff to a splint (a piece of wood). Afterwards the
plaintiff made reports to the staff and to the doctor that he was suffering with severe pain in the
hand. But no proper attention was paid by them. After 14 days when the bandage was removed,
it was found that four fingers of the plaintiff’s hand were stiffed and become useless. The
plaintiff sued the defendants for damages. It was observed that the hospital authorities owe
duty to their patients and their liability is both primary as well as vicarious and it was held that
the defendants were held liable for the wrong acts committed by the surgeon and their staff.
In Collins v. Hertfordshire C.C. [(1947) KB 598], the hospital authority was held
liable for the negligence of a junior house surgeon, a student, for injecting a patient with
cocaine, a dangerous drug, instead of procaine, a harmless local anaesthetic, as the result of
which the patient died.

B. Scope of Employment
The servant must have committed the Wrongful act ‘in the course of employment’.
After it has been ascertained that the master-servant relationship exists between the master and
the wrongdoer, the next question that the Court is required to decide is whether the master be
held vicariously liable or not ? The master shall be liable for the wrongful acts of his servant
only where the servant has done the act within the scope of employment.
The master may be liable to third persons for the wrongful acts of his servant, however
the mere fact that one person is a ‘servant’ of the master in legal sense, will not by itself render
the master liable for every tort of his servant. Everything depends on whether the servant did
the act ‘in the course of employment’. An act is said to be done ‘in the course of employment’
when the servant executes the order of the master : (1) The master has ordered the servant to
commit a wrongful act, or (2) wrong may be committed due to the servant’s negligence while
carrying out the orders of the master
In the first case, master’s order is itself wrongful. A wrongful act is deemed to be done in
the course of employment, if it is either
 P a g e | 42

(i) expressly or impliedly authorised by the master, or

(ii) is an unauthorised mode of doing something authorised by the master; or
(iii) is necessarily incidental to something which the servant is employed to do.
For example, if master asks his servant to throw garbage on other’s land, the master
will be held liable.
In the second case, if master asks driver to drive his car and the driver drives the
vehicle negligently then it is considered within the course of employment.
Thus a master is responsible not merely for what he authorised his servant to do but also
for the way in which the servant does it. Thus if a servant does negligently what he was
authorised to do carefully or if he does fraudulently what he was authorised to do honestly,
or if he does mistakenly what he was authorised to do correctly, his master will be
answerable for the negligence, fraud or mistake.

• Circumstances or ways in which a master becomes liable for the wrongful acts of
his servant committed during the course of his employment.
Sir Frederick enumerated the following six ways in which a Master becomes
liable for the wrongful acts of his servant committed during the course of his
employment:
1) Natural Consequence of an Act
The wrong done by the servant may be the natural consequence of something
done by him with ordinary care in execution of his master’s specific orders. If a
wrongful act is expressly or impliedly authorised by the master he is liable for any
injury caused in consequence of it. if a master authorised a servant to trespass on the
land of another or to throw dirt at the door of the plaintiff and commit nuisance thereby
the master will be liable to pay damages.
In Gregory v. Piper [(1829) 9 B & C 591], the defendant and plaintiff were
neighbours. They had a dispute about a right of way. In order to prevent the plaintiff
from using the way, the defendant ordered his servant to place a heap of rubbish on the
way in such a way that it did not touch the plaintiff’s wall. The servant did it carefully.
But the heaped up rubbish began to single down in the course of time and a part of it
touched the plaintiff’s wall. The plaintiff sued the defendant for trespass to land. It was
held that the wrong was the natural consequence of an act done by the servant with
ordinary care in the execution of master’s specific orders. The master was liable.
Indian Insurance Co. Association Pool, Bombay v. Radhabai,1979, the driver
of a motor vehicle belonging to the Primary Health Centre of the State was required to
bring the ailing Children by bus to the Primary Health Centre. The driver in the course
of driving gave the control of the steering wheel to an unauthorised person. It was an
authorised mode of doing the act authorised by the master. It was held that in such
circumstances, the Government, viz., the owner of the vehicle is vicariously liable for
the negligence of the driver as he had permitted an unauthorised person to drive the
vehicle.
In Port Trust Madras v. Bombay Co., [AIR 1967 Mad. 318] a workman was injured
and lost his legs by a cart loading with iron. It was held that master can sue a person
who injures his servant and thereby causes loss of service to the master.
 P a g e | 43

2) Due to Negligence of Servant

The wrong may be due to the servant’s want of care, or his Negligence in
carrying out the work or business in which he is employed.
Sometimes, a servant may do some act, while performing the duties assigned to
him by the master, for his own convenience or comfort.
In Williams v. Jones [(1885) 3 H & C 602], the defendant’s servant, a carpenter, was
required to do his work in the plaintiff’s shed. While engaged in his work, the carpenter
lighted his pipe negligently and the same set fire to the plaintiff’s shed. It was decided
that the carpenter’s negligent act had nothing to do with the purpose of his employment
and therefore, the defendant could not be made liable for the same. However, Meller
and Blackburn JJ. dissented by stating that lighting the pipe negligently was a wrongful
way of performance of his duties.
In Century Insurance Co. Ltd. v. Northern Ireland Fload Transport Board
[(1942) AC 509], the respondents were insured by the appellants against damage
arising from the use by the respondents of their petrol tankers. One driver working
under respondent, lit a cigarette while delivering petrol at the garage and threw the
match box upon garage floor. It caused explosion and the property was damaged. The
appellant raised the plea that the driver was outside their employment hence they were
not liable. But it was held that though the driver lighted the cigarette for own purpose,
it was a negligent method of conducting his work. It was held that the appellants liable
as the driver’s negligent act was within the course of his employment (following the
dissenting opinion in Williams v. Jones [(1865) 3 H & C 602].)
At this stage it is necessary to know that the master’s liability for the negligence
of his servant is limited to cases in which the latter acts in the course 7of his
employment. But if the servant, instead of doing that which he is employed to do, does
something entirely new; i.e., something he is employed not to do at all, the master will
not be responsible for negligence of his servant in doing it.
If a person driving a vehicle at the time of the accident was an employee of the
owner of the vehicle, generally it would be presumed that the driver was driving it in
the course of his employment. The owner who was to get over his liability for the
negligence of the driver has to establish that there was cessation of relationship of
master and servant between him and the driver at the relevant point of time.
In Ganga Sugar Corp. Ltd. v. Sukhbir Singh [AIR 1974 All. 133], a jeep driver
in the course of his employment left the ignition key in the jeep, which was stationed
on crowded road. Someone drove the jeep in his absence and the accident was caused.
The driver as a reasonable man could have anticipated that someone could get into the
jeep and drive it. Since the driver was driving in the course of employment, his master
was held liable. But a master is not liable for servant’s wrong committed while making
an unauthorised use of master’s property for this (servant’s own purpose).
In Krishna Bus Service Ltd., v. Smt. Mangli and others [AIR 1976 SC 700] it has
been observed that where in an action for negligence causing fatal injury to the
deceased and consequent pecuniary loss to the plaintiff is shown to be under the
management of the defendant or his servants and the accident is such as in the ordinary
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course of events, does not happen, if those who have the management use proper care,
that affords reasonable evidence in the absence of explanation by the defendants that
the accident arose from want of care. The appellant Company was held fully liable for
the negligence of its employee and the injury resulting therefrom.
3) Due to Mistake of Servant
The servant’s wrong may consist in excess or mistaken execution of a lawful
authority, but two things have to be established. In the first place, it must be shown that
the servant intended to do on behalf of his master something which he was, in fact,
authorised to do. Secondly it has to be proved that the act, if done in a proper manner
would have been lawful.
In Poland v. John Parr and Sons, [(1927) 1 KB 236] a carter in the employment
of the defendants saw the plaintiff walking besides one of his employer’s wagons with
his hand on one of the bags of sugar with which it was loaded. Honestly thinking that
the plaintiff was pilfering, he gave him a cuff on the neck as a result of which the
plaintiff fell and was hurt by the wagon. At that time the carter was off duty, but it was
held that the act was done in the course of his employment and the defendant was held
liable.
In Bayley v. Manchester Rly. Co., [(1873) LR 8 CP 148], the defendant
company’s porter violently ejected a passenger from a carriage, mistakenly believing
that he was in the wrong train whereas in fact he was in the correct train. It was one of
his duties to prevent passengers from taking the wrong train and his act of merely a
wrong and mistaken way of doing the work entrusted to him and not an unauthorised
assumption of work that did not pertain to him. The porter was doing in a blundering
way something which he was authorised to do and the defendant company was held
liable.
4) Due to Wilful Wrong of Servant
The master will be liable even if the servant wilfully disobeys the instructions
given by the master as to the manner of doing a work. Where the master expressly
instructs the servant not to race the car or attempt overtaking and the servant in spite
of such instructions races it and commits accident the master will be liable.
If a servant performs some act which indicates recklessness in his conduct but
which is within the course of his employment, and is calculated to serve the interest of
his master, then the latter will be saddled with the responsibility for it. Sometimes
master expressly forbids his servant to do certain act. But it does not mean that every
act done in contravention of that prohibition falls outside the scope of employment. lf
prohibition were a defence, every employer would escape liability by pleading that he
had expressly prohibited his servants from committing any tort.
In Limpus v. London General Omnibus Co. [(1856) 1 H & C 526], the driver
of the defendant company’s omnibus, wilfully and contrary to express order forbidding
races with and obstructing other omnibuses, drove across the road in order to obstruct
the plaintiff’s omnibus and caused it to upset. The company was held liable, for the act
of driving or racing was not inconsistent with his employment, specially when
explained by his desire to get before the other omnibus.
 P a g e | 45

In Canadian Pacific Railway Co. v. Lockhart [(1942) AC 591], the defendant

had prohibited their staff from driving uninsured cars on the company’s business. In
breach of this instruction a servant of the defendants drove an uninsured car negligently
while engaged in company’s business and injured the plaintiff. It was held that
defendants were liable by observing that the prohibition that the defendant’s employees
should not drive uninsured care while engaged in company’s business “merely limited
the way in which or by means of which the servant was to execute the work which he
was employed to do and that breach of the prohibition did not exclude the liability of
the master to third parties”.
5) Due to Fraud of Servant
A master is liable for the wrongful acts of his servants done fraudulently. “Even if
a servant does fraudulently what he is employed to do honestly, the master must answer
for the fraud". it is immaterial that the servant’s fraud was for his own benefit. The master
is liable if he has held the servant out as having the authority to do the act i.e., the act must
be comprehended within his ostensible authority, The underlying principle is that on
account of the fraudulent act of the servant, the master is deemed to extend tacit invitation
to others to enter into dealings or transactions with him. Therefore the master’s liability
for the fraudulent acts of his servants is limited to cases where the plaintiff has been invited
by the defendant to enter into some sort of relationship with a wrong-doer. Consequently
where there is no invitation, express or implied, the act will be treated as the independent
act of his servant himself, and outside the scope of his employment.
in Lloyd v. Grace Smith & Co. [(1912) AG 716], the defendants were a firm of
Solicitors of long standing and good repute. The plaintiff, Lloyd, a widow, owned two
cottages, but she was not satisfied with the income they produced. She went to the
defendant’s office for consultation. There she met the managing clerk of the defendants,
who conducted the conveyancing business of the defendants. Managing clerk advised her
to sell the cottages. He fraudulently induced her to sign some papers in order to accomplish
this. She did not read the papers but subsequently discovered that the documents signed by
her had actually turned out to be gift-deeds of cottages in favour of the managing clerk.
The managing clerk then disposed of the property for his own benefit. It was held that the
managing clerk acted solely for his personal benefit and without the knowledge of his
principal, but he did the fraud during the employment, and in the course of his employment.
Since the clerk was acting in the course of his apparent or ostensible authority, the master
was liable for the fraud.
6) Due to Criminal Act of the Servant
The vicarious liability of master would even extend to a case where the servant’s
act is malicious or constitutes a crime. Though there is no such thing as vicarious
liability in criminal proceedings, yet in a civil action, a master is liable for the criminal
acts of his servant, provided that they are committed in the course of employment. if
the rule were otherwise the master’s liability would have been unduly curtailed because
many tortious acts are also recognised as crime, Thus a master will be liable for loss of
articles due to theft, assault, defamation etc., committed by his servant.
ln Morris v. G.W. Martin & Sons Ltd. [(1966) 1 KB 716], the plaintiff sent her
fir coat for cleaning to a person A for cleaning with the consent of the plaintiff, A sent
 P a g e | 46

it to the defendants, expert cleaners. The defendants, in their turn gave it to their servant
‘B’ for cleaning. ‘C’ stole the coat. It was held that the defendants were liable on the
ground that they were responsible for loss of the goods. It was observed that this case
“could have been decided on the short ground that the servant’s tort conversion of the
coat was a wrongful mode of performing the task entrusted to him by the defendants,
namely, cleaning and taking care of the coat, and was thus committed in the course of
employment ..... The result is thus the same whether the case is considered in terms of
the defendant’s own duty as bailee or in terms of vicarious liability.
in Roop Lal v. Union of India [AIR 1972 J & K 22], some military Jawans
lifted some firewood belonging to the plaintiff and carried the wood in military vehicles
for the purpose of camp-fire and fuel. The plaintiff brought a suit against Union of
India. It was held that the acts of the Jawans fall within the course of employment and
the Union of India was liable for the same.
In Dyer v. Munday, 1895, the defendant, a furniture dealer, sent his messenger
to retake an article of furniture from the customer who had hired it under hire-purchase
contract, and had defaulted in the payment of instalments. He was held liable for assault
committed by his messenger on the land-lady of the house in which the hirer was
residing and forcibly removed her from the chair. The defendant had authorised the
messenger to remove any obstruction that comes in the way of retaking the furniture.

Exceptions to the rule that the master is liable for servant’s acts done during the course
of employment
Where master is liable for acts not done in the course of employment .Where a servant is injured
due to defect in some unfenced machinery and the accident could not have happened had the
machinery been properly fenced, the master will be liable. The question whether he was at the
time of accident within the course of employment or was engaged in a frolic of his own is
irrelevant because master is under duty to get them properly fenced.
Circumstances under which the employer is not held liable even if the act was done during the
course of employment.
Where Master not liable for acts done in course of employment
Normally, the master is not liable for torts which are not committed in the course of
employment, but is liable if committed in the course of employment. However in the following
exceptional cases master is not liable even where the tort is committed in the course of
employment:
(i) Appointment under compulsion: Where the master has to employ a particular
person under the compulsion and has no choice of selection, the master will not be
liable for negligent acts of such servant even if done during the course of
employment. For example, where a person had to employ a compulsory pilot he was
not liable for the tort of the pilot.
(ii) Sovereign immunity: The Government is not liable as an employer for torts
committed by its servants in exercise of sovereign functions.
(iii) Doctrine of common employment: According to the doctrine of common
employment a master was not liable for tort committed by a servant against his
fellow servant. The doctrine is that a master is not liable for the negligent harm done
 P a g e | 47

by one servant to another fellow servant acting in the course of their common
employment.
The rule of common employment was first applied in 1837 in Priestley v. Flower,
the plaintiff, who was the defendants servant, was injured at his thigh due to breaking
down of an overloaded carriage in the charge of another servant of the defendant.
Since both the wrongdoer and the injured person were the servants of the same
master, the doctrine of common employment was applicable and the master was not
held liable.
The essentials for the application of the defence of common employment are:
i. the wrongdoer and the person injured must be fellow servants and
ii. At the time of the accident, they must have been engaged in common
employment.
The following reasons for this view were given : (a) That the master cannot be bound
to take more care of the servant than he may reasonably be expected to do of himself
because the servant has better opportunities of watching the conduct of the fellow
servant than the master. (b) That a contrary view will encourage the servants to be
negligent.
(iv) Lending a servant to another person: A master is not liable for the wrongs
committed by a person to whom his servant delegates his duty without authority
unless there is an exceptionally urgent necessity for the servant for doing so.

Liability for acts of Independent Contractors

‘An independent contractor’ is one who, exercising an independent employment, contracts to
a piece of work according to his own methods, and without being subject to his employer’s
control, except as to the result of the work. He renders service in the course of an occupation,
representing the will of his employer only as to the result of his work, and not as to the means
by which it is accomplished.
Where the employee retains full discretion as to the manner or method in which the work is to
be done, he is called an ‘independent contractor’. In other words, an ‘independent contractor’
is a person who undertakes to do a work without being under the control of the employer for
whom he does it as to the manner of execution of the work.
An independent contractor is under a ‘contract for service’ i.e. “what is to be done’. For
example, A wants to go to railway station. He contracts B, an auto-driver. A pays the amount
according to the meter reading after reaching the railway station. Here B is an independent
contractor and not A’s servant. The general rule is that for the acts and omission of an
independent contractor, except those actually authorised, his employer is not liable to strangers.
Nor the employer liable for the wrongs of servants or subcontractors engaged by the contractor
to do the work. “He who controls the work is answerable for the workman; the remoter
employer who does not control is not answerable”.
In Morgan v. Incorporated Central Council [(1936) 1 All ER 404], the defendant company
had entrusted the management of lift to an independent contractor. The plaintiff was injured
when he fell down from an open lift shift. He sued the defendant. It was held that the defendant
was not liable, and the plaintiff had to sue the independent contractor.
 P a g e | 48

In Govindarajulu v. M.L.A. Govindaraja Mudaliar [AIR 1966 Mad. 332], the owner of a
lorry entrusted it to a repairer for getting it repaired. While it was in the custody of the repairer,
one of the employees of the repairer drove the lorry, and caused an accident driving the lorry
negligently. The injured sued the owner for compensation. It was held that the owner of the
lorry was not liable, the lorry being entrusted to an independent contractor to get it repaired.
The repairer was held responsible.
The general rule that the employer is not liable for the tortious acts of independent contractor
has the following exceptions :
(i) Where the employer personally interferes in or assumes control over the
contractor’s work [Barges v. Gray (1846) 1 CB 578]
(ii) Where the thing contracted to be done is itself unlawful, and the employer could
not himself do it. [Maganbhai v. Ishwarbhai (AIR 1948 Guj. 69]
(iii) In case of strict liability, an employer is liable for the act of an independent
contractor [Rylands v. Fletcher (1868) LR 3 HL 330]
(iv) Where the thing contracted to be done, though lawful in itself, is likely in the
ordinary course of events to damage another’s property unless preventive means
are adopted and the contractor omits to adopt such means [Bower v. Peate (1876)
1 QBD 321].
(v) Where special or absolute duty is imposed on the employer by common law or
statute to the thing properly, and the contractor performs it negligently. [Tarry v.
Ashton (1876) 1 QB 314]
(vi) Where the employer was negligent in the selection of the contractor and that
negligence was the cause of the tortious act [Joliffe v. Willment & Co. (1971) 1
All ER 1478 (485)].

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