General Defences

• The list of general defences available in tort

are:
1. Volenti non fit injuria.
2. Plaintiff is wrongdoer.
3. Inevitable accident.
4. Act of God.
5. Private defence.
6. Mistake.
7. Necessity.
8. Statutory Authority.
 Volenti non fit injuria.
• Meaning- when person consents to infliction
of some harm upon himself, he has no
remedy for that in tort.

• Defence of consent is not available if the harm

go beyond the limit of what has been
consented.
 .
• Hall v. Brooklands Auto Racing Club
(1932) All E.R. Rep. 208.
• Padmavati v. Dugganaika (1975) 1 Kam.
L.J. 93.
• Wooldrige v. Sumner (1963) 2 Q.B. 43.
• Thomas v. Quartermaine (1887) Q.B.D.
685.
 Illot v. Wilkes ((1820) 3 B & Ald, 304.
Sarch v. Blackburn, (1830) 4 C& P. 297.
• Consent must be free not be obtained by
fraud or under compulsion or under
compulsion or under some mistaken
impression.
• The act done must be the same for which
consent has been taken.
 Lakshmi Rajan v. Malar Hospital Ltd., III (1998)
CPJ 586 (Tamil Nadu SCDRC).
• Where a person is incapable of giving his
consent a consent because of his insanity or
minority , consent of his parent or guardian is
sufficient.
• Consent obtained by fraud:
 R. V. Williams (1923) 1 K.B. 340.
• Consent obtained under compulsion.
• For the application of the maxim volenti non
fit injuria the two essential conditions are
required:
1. The plaintiff knew that the risk is there.
2. He, knowing the same, agreed to suffer the
harm.
 Bowater v. Rowley Regis Corporation (1944)
K.B. 476.
• Smith v. Baker (1891) A.C. 325.
• Slater v. Clay Cross Co. Ltd. (1956) 2 All E.R
625.
 Limitations on the scope of the doctrine:

• The limitations to volenti non fit injuria

doctrine are:
(a) Rescue Cases.
(b) The unfair Contract Term Act, 1977.
Rescue cases:
 Haynes v. Harwood (1935) 1 K.B 146.
 Wagner v International railway (1921) 232
N.Y 176.
• Hyett v. Great Western Railway Co. (1948) 1
K.B 345 .
2. Unfair Contract Terms Act, 1977 - Section 2 of
the Act provides:
(a) Absolute ban on a person’s right to exclude
his liability for death or personal injury
resulting from negligence, by making a
contract or giving a notice to that effect.
 Act of God
• Act of God is a defence.

• It has also been recognised as a valid

defence for the purpose of liability
under the rule of Strict Liability
evolved in Rylands v. Fletcher.
• In act of God , the resulting loss
arises out of the working of the
natural forces like exceptional heavy
rainfall, storms, tempests, tides and
volcanic eruptions.
 Essentials of Act of God
• Two important essentials are needed for
this defence:
• 1. There must be working of natural
forces and
• 2. The occurrence must be extraordinary
and not one which could be anticipated
and reasonably guarded against.
1. Working of natural forces:

Ramalinga Nadar v. Narayan Reddiar AIR

1971 Kerala 197.
Nichols v. Marshland (1876) 2 Ex. D 1.
2. Occurrence must be extra ordinary:

 Kallulal v. Hemchand AIR 1958 Madh. Pra. 48