CHAPTER III

GENERAL DEFENCES
There are some general exceptions to liability in torts which the defendant may plead in
defence of his act which has caused damages to the plaintiff.
Normally, when a plaintiff brings an action against the defendant for a particular tort and
successfully proves the existence of all essential ingredients of that tort, the defendant is
held liable for the same. But there are some general defences available to the defendant
which may absolve him from liability if he can successfully plead that his wrongful act falls
under any of those defences. These defences have been termed as general exceptions to
the liability in tort because normally a defendant is always held liable for his tortious act
but if he can show that his act is covered under any of the defences recognised under the
law of tort, he may avoid liability. These defences are as follows :-
1. Private defence i.e. defence of person or property;
2. Necessity;
3. Inevitable Accident ;
4. Vis Major, i.e., act of God;
5. Mistake;
6. Statutory Authority; and
7. Volenti non fit injuria, i.e., defence of 'consent'.
1. Private Defence
Law permits a person to protect his person (i.e. body) or property by use of reasonable
force necessary for his self defence. Thus the damages caused by the defendant in
defending his own or another person's person or property is justified, if it was reasonably
necessary for the purpose. Whether the force so used was reasonable or otherwise, would,
however, depend on the circumstances of each case. When there is an imminent threat to
a person's safety or property, he would be justified to use reasonable force to avert that
danger by way of retaliation. But such danger or threat should be instant and real and not
merely imaginary or a possibility. For example, in Bird v. Holbrook,2 the defendant put up
spring guns in the fencing of his garden so that the trespassers may not be able to enter
the same. He did not put a warning or notice about the same, with the result a child
trespasser was seriously injured by the automatic discharge of the spring guns. The
defendant's plea of self defence was not accepted by the Court on the ground that the
force used was greater than the occasion
1. Similar provision are contained in Sections 96 to 106 of the Indian Penal Code.
(1823) 4 Bing 628.,

7. "Volenti" (Consent) as a Defence

"Volenti" is a good defence in law of tort. This has been expressed by the latin maxim
volenti non fit injuria, meaning thereby that where the plaintiff has consented to a wrongful
act, he shall have no right to sue the defendant. Thus, intentional acts which are otherwise
tortious shall incur no liability of the defendant if plaintiff has consented to them. For
instance, where in a auto racing between plaintiff and defendant, the, plaintiff's car is
damaged, he cannot hold the defendant liable for damages. The rationale of plaintiff's
consent as a defence is that where a man is in part a author of his own injury, he cannot
expect other party to compensate him.' This principle is embodied in yet another maxim
nulle-injuia est quae in volenti fiat which suggests that an injury caused by self consent is
not actionable.
The consent of the plaintiff may be express or implied. For instance, where a person
consents to a surgical operation, he cannot sue the surgeon for the tort of battery. (2)
Similarly, where a person invites a guest, he cannot sue him for trespass. The consent of
the players participating in the games of hockey,
2. Rv. Donovan (1934) 2 KB 498.
LAW OF TORT
48
football, cricket etc. is implied or inferred in case they are injured while playing the game.
Similarly, a person going on a highway is presumed to have consented to the risk of
possibility of an accident.!. Again, a spectator at a motor race cannot recover if he is hit by
a racing car coming off the track. (2)

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'.
In Hall v. Brooklands Auto Racing Club (3) 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.
"Where two strangers voluntarily took a lift in a jeep and were injured and one of them
subsequently died due to accident caused because of right wheel which went off the jeep
all of a sudden, the defendant i.e. the master of the jeep and its driver were held not liable"
4
Commenting on the nature and scope of defence of consent in sports cases Diplock, L.J.,
in Wooldridge v. Sumner, 5 inter-alia, observed:
"A person attending a game or competition takes the risk of any damage caused to him by
any act of a participant done in the course of and for the purposes of the game or
competition notwithstanding that such act may involve an error of judgment or a lapse of
skill, unless the participant's conduct is such as to evince a reckless disregard of the
spectator's safety." (6)
In T.C. Balakrishnan v. T.R. Subramaniam, (7) the plaintiff who was an spectator at a
fireworks show arranged by the defendant on a open ground on a festival day, was
seriously injured because the explosive instead of flying straight into the sky turned
tangently into the crowd and burst there. The defendant's plea of consent of the plaintiff
was rejected by the Court and he was held liable for negligence. Even otherwise, the
defendant would have been held liable applying the absolute liability principle laid down in
the historic
Rylands v Fletcher (8) case

Consent must be free :

The defence of volenti is available only when it is shown that the consent given by plaintiff
was free, that is without any fraud, compulsion or coercion.
1. Holmes v. Mather (1875) LR 10 Ex 361.
2. Hall v. Brooklands Autoracing Club, (1932) All ER 208.
3. (1933) 1 KB 205.
4. Padmavati v. Dugganaika (1975) 1 Kant LJ 93.
5. (1963) 2 QB 43.
6. Ibid, p. 68
7. AIR 1968 Ker. 151.
8. (1868) LR 3 HL 330
ee
S
GENERAL DEFENCES
49
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 upto 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 (1)
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.
But in R v. Clarance, (2) the husband was held not liable for an offence of intercourse with
his wife and infecting her with a venereal disease even though he had not disclosed her
about his suffering by that disease prior to their marriage. Explaining the reason for not
holding the husband liable in this case, the Court observed that the wife was fully aware
about the nature of the act that was being done although she was not aware of the
consequences of that act, and, therefore, her consent was enough to absolve the husband
from liability.
In a similar case viz., Hegarty v. Shine (3) 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. (4)

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
1. (1923) 1 KB 340
2. (1888) 22 QBD 23
3. (1878) 14 Cox CC 145
4. Ex-turpi causa non oritur actio meaning thereby that no action arises from an immoral
act.

LAW OF TORT
50
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, (1) 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 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 ie. 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.

Mere "scienti" is not volenti :

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 gangmen 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 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.3 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 (4) 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
1. (1944) KB 476, This ruling was followed by Lord Hudson in imperial Chemical Industries
Ltd. v.
Shatwell, (1965) AC 656.
2. (1891) AC 325.
3. (1952) 2 All ER 1101, per Hallet, J.
4. (1959) 1 WLR 965 see also Videan v. British Transport Commission, (1963) 3 WLR 374
(CA).

GENERAL DEFENCES
Acc. NO13 27
51
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 were struggling to death. He tied the rope around his waist and asked two
women to drop him slowly i side 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,1 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.
Dann v. Hamilton, (2) is yet another case where the Court was called upon to draw a
distinction between scienti (knowledge) and volenti (consent). In this case the plaintiff
lady was waiting for a taxi at a taxi stand.
As the defendant's taxi arrived there at about 11.45 p.m. the plaintiff rushed to enter it. A
passenger who got down from the taxi warned the plaintiff that the driver was dead drunk
and there was a possibility of an accident any moment and this is why he was terminating
his journey and getting out of the taxi. But the plaintiff paid no heed to this warning and
boarded the taxi at 11.55 p.m. and merely 8 minutes later the taxi toppled and the plaintiff
was seriously injured and the driver was killed in this accident. She brought an action for
negligence of the deceased driver and claimed damages from his estate under the Law
Reforms Miscellaneous Provisions Act, 1934. The defendant's pleaded that the plaintiff had
put herself in the danger despite the warning from the passenger about the possibility of
an accident any time due to drunken condition of the driver, hence it was a clear case of
volenti and therefore, defendants were not liable. But the Court held that the plaintiff had
only knowledge about the risk involved in the taxi which was being driven by a drunken
driver
1. (1964) 2 All ER 909.
2. (1939) 1 KB 509 (518).

52
but this does not mean that she had agreed to die. However, this decision, was criticised
by many writers on the ground that this was a clear case of volenti but perhaps the Court
hesitated to accept it as a 'consent' for the reason that in that case defendant would not
have been liable and this would indirectly mean that taxi drivers have the licence to drive
in a drunken state and play with the lives of the passengers. Be that as it may, perhaps it
would have been proper for the defendant to raise the plea of contributory negligence of
the plaintiff to succeed in his defence. But as pointed out by Lord Asquith, " the defence of
contributory negligence was not taken into consideration because it was not so raised by
the defendant.
The above case has also been dissented by the High Court of Canada in its decision in Car
and General Insurance Corporation Ltd. v. Saynour & Malony,? wherein it was held that the
Courts should deliver its judgments according to "law as it is" and not on the basis of
consequences following therefrom. In the High Court's opinion the decision in Dann v.
Hamilton was rather unfortunate.
In Slater v. Clay Cross of Ltd. Co. (4) the lady plaintiff was hit and injured by the train
driven by defendant's servant while she was walking along a narrow tunnel on a railway
track which was owned by the defendant. The defendant's company was aware that the
tunnel was used by local people as a passage and therefore, had instructed the driver to
whistle and pass through the tunnel at a reduced speed. Since the incident had occurred
because of the negligence to ignore these instructions, the defendants was held liable.
Denning L.J. observed that although the plaintiff had voluntarily taken the risk of the
danger but she had not consented to the negligent act of the railway driver and its
consequences. Therefore, her knowledge about the possible danger did not bar the action
against the negligent defendant.
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 injury or harm; 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 knowledges about the risk or danger involved in that act.

Distinction between Volenti and contributory Negligence :

In the context of consent as a defence, it has to be distinguished from contributory
negligence which is not a defence but only helps in mitigating the
1. 69 LQR 317.
2. (1956) 2 DLR 369 (Canada).
3. (1939) 1 KB 509.
4. (1956) 2 All ER 625
GENERAL DEFENCES
53
quantum of damages. The main points of difference between the two are as follows :-
(1)
Volenti, that is consent of the plaintiff is a complete defence to absolve the defendant from
liability but contributory negligence of the plaintiff reduces the liability of the defendant in
proportion to former's fault as provided under the Law Reform (Contributory Negligence)
Act, 1945.1
(2)
In volenti non fit injuria, although the plaintiff consents to the risk or danger but at the
same time takes due care for his safety? but contributory negligence implies negligence of
both, defendant and the plaintiff.
(3)
In volenti, the plaintiff is well aware of the nature and extent of the danger which he is
going to undertake but it is not so in case of contributory negligence though he ought to
have been aware thereof.
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 wilful indulgence in the wrong caused to
him. These may be captioned as exceptions to volenti as a defence.
1. 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.3 For instance, in Lane v. Holloway 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 (i.e. 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
2. 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.5
3. 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
1. Section 1 (1) of the Law Reform (Contributory Negligence)) Act, 1945.
2. Heard v. N.Z. Forests Products Ltd (1960) NZLR 329 (357).
3. R v. Williams (1923) 1 KB 340.
4. (1967) 3 All ER 139 (CA).
5. Wheeler v. New Morton Board Mills Ltd. (1933) 2 KB 669.
LAW OF TORT
54
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.1
(4) 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. (2) 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, when husband and wife were making purchases in a shop, 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.

In Hynes v. Harwood (3) a police constable rushed out from inside a police station to stop
the horses of a van coming down unattended in crowded street and eventually stopped
them thus rescuing a child from being crushed. In this endeavour the constable sustained
injuries for which he could recover damages from the owner of the van whose servant was
negligent in leaving the van unattended on a busy street. The Court held that the defence
of volenti is not available to defendant in rescue cases.
In Hyett v. Great Western Rly Co., 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.
1. Barnett v. British Waterway Board ((1973) 2 All ER 631.
2. (1924) 1 KB 548. This is also known as Sky light Case because the plateglass at the roof
of the shop was meant to allow sun-light to enter the shop.
3. (1935) 1 KB 146; See also Viden v. British Transport Commissioner (1963) 2 QB 650 (CA)
wherein the widow of station master was killed in rescuing his son from an approaching
train. She was entitled to recover.
4. (1948) 1 KB 345 (CA)

GENERAL DEFENCES
55
In an American case, viz., Wagner v. International Rly Company, (1) a railway passenger
was thrown out of the running train due to railway's negligence. When the chain was pulled
up and the train stopped, the friend of the fallen passenger who was also travelling with
him, got down and walked back to search his friend. There was complete darkness and the
rescuer missed his footing and fell down from the bridge and got seriously injured. The
Court held the defendant railway company liable treating the incident as a rescue-case.

In Chadwick v. British Transport Commission?, the rescuer was helping voluntarily at the
scene of railway accident near his home. Seeing the miserable plight of those who died
and were seriously wounded, he suffered serious mental shock, though he was physically
unhurt. When he sued for damages, the railway pleaded that he was not a passenger
travelling in the accidented train hence railway owed no liability towards him. But
rejecting the railway's plea, the Court held that the fact that the risk run by the rescuer
was not exactly the same as that of a passenger, did not deprive the rescuer of his claim
for damages. The railway was, therefore, held liable.

In the context of rescue cases, the decision in Urbanski v. Patel (3) also deserves to be
mentioned. In this case, the defendant who was a doctor by profession while performing
the sterilization operation of plaintiff's daughter removed her kidney instead of overy.
Sooner he detected this blunder and immediately put the patient on dialysis and was
looking for a kidney doner. When nobody came forward to donate his kidney, the plaintiff,
that is, the patient's father, himself volunteered to donate his kidney to save the life of his
daughter. The kidney was transplanted but unfortunately the operation failed. Thereafter,
the plaintiff sued the doctor (defendant for the loss of his (plaintiff's own) kidney. He was
allowed to recover, and the Court dismissed the defendant's plea that the plaintiff had
volunteered himself to donate his kidney and, therefore, defendant was not liable. The
Court noted that the incident being the natural consequence of the defendant's negligence,
he cannot escape liability.

Where plaintiff himself is wrongdoer :

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, 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
1. (1921) 232 NY 176.
2. (1967) 2 All ER 943.
3. (1978) 84 DLR 3d 650.
4. AIR 2007 Chhatisgarh 87, See also, State of Punjab v. Shiz Ram and others, AIR 2005 SC
3280.

LAW OF TORT
56
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. Lakshmil 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.
As to the question whether defendant can take a defence and escape liability on the plea
that at the time of his wrongful act the plaintiff was also engaged in doing something
wrong, Sir Federick Pollock has opined that the mere fact that the plaintiff was also a
wrongdoer does not ipso facto disentitle him from claiming damages from the defendant
unless there was some unlawful conduct on his part which is connected with the harm
suffered by him.?
However, he may be disentitled if his wrongful act is the real cause of his harm. Pollock
illustrates this by an example. A bridge which was under the control of defendant, gave
way when an overloaded truck of the plaintiff was passing through it. The defendant had
put a warning on either side of the bridge prohibiting carriers which were loaded beyond a
certain limit. In this case, the bridge would not have collapsed had the plaintiff's truck not
been overloaded and therefore, the conduct of the plaintiff itself was the cause of collapse.
However, the plaintiff would have succeeded if he could have proved that the bridge was
so ill-maintained that it would have given way even if the truck had not been overloaded.
Briefly stated, the correct position of law in this regard is that the plaintiff cannot be
deprived of his right to claim damages merely because he himself was a wrongdoer. If his
wrongful act was totally unconnected with the harm caused to him, he shall be entitled to
recover damages from the defendant. But if plaintiff's wrongful act is the real cause of
harm caused to him, then in that case, he will not be entitled to recover.
1. AIR 2007 Mad 130 : See also State of Harvana v. Santra,
2. Sir Frederick Pollock