General Defences

Defendant in some case for avoiding his liability take some

defence

General Defences are the following:-

1. Volenti non fit injuria, or the defence of consent
2. Plaintiff the wrongdoer.
3. Inevitable accident
4. Act of God.
5. Private Defence
6. Mistake
7. Necessity
8. Statutory Authority
 Volenti non fit injuria or Consent
 When a person consents to the infliction of some harm upon himself, he has no remedy for that in tort.
 No man can enforce a right which he has voluntarily waived or abandoned.
 Consent to suffer the harm may be express or implied.
 For the defence of consent to be available , the act causing the harm must not go beyond the limit of what has
been consented.
 In Hall v. Brook lands Auto Racing Club- 1932
Plaintiff was a spectator at a motor race held at Brookland on a track owned by defendant company, during the
race there was a collision between two cars and spectator got injured.
It was held that the plaintiff impliedly took the risk of such injury, the danger being inherent in the sport which
any spectator could foresee, the defendant was not liable.
_ Wooldrige v. Sumner , 1963
Plaintiff was a photographer, while he was taking photos of a horse show one horse belonging to defendant
caused injury to plaintiff, court held that , the spectator in such a game takes the risk of such damage and
therefore for the injury the defendant is not liable.
 The consent must be free:-
- For the defence to be available , it is necessary to show that the plaintiff’s consent to the act done by the
defendant was free.
- if the consent of the plaintiff has been obtained by fraud or under compulsion or some mistaken
impression , such consent does not serve as a good defence.

In Lakshmi Rajan v. Malar Hospital Ltd, 1998

The complainant was undergone surgery for a painful lump in her breast, but during surgery her uterus was
removed. It was held that hospital was liable, patients consent for the operation did not imply her consent to
the removal of the uterus.

-- when a person incapable to give consent due to incapacity (minor or insane), consent of guardian or parent
is sufficient.
 Consent obtained by fraud
Consent obtained by fraud is not real and that does not serve as good defence.
In R v. Williams
The accused a music teacher was held guilty of rape when he had sexual intercourse with a student of 16 years
old under the pretence that his act was an operation to improve her voice.

- Consent obtained under compulsion is not a consent.

- Mere Knowledge does not imply assent:-
For volenti non fit injuria to apply two points have to be proved,
1. The plaintiff knew the risk is there
2. He knowing the same agreed to suffer the harm
In Smith v. Baker 1891- plaintiff was a workmen employed by the defendant , while he was busy in his work ,
a stone fell from crane and got severe injury, although the plaintiff had been aware of the risk, the court held
defendant was liable.
 Negligence of the defendant-
For the defence to be available it is necessary that the act done must be the same to which the consent has
been given.
Eg :- while playing hockey , opposite player deliberately hits with stick , then he is liable.
In Slater v. clay cross co ltd., 1956
- Plaintiff was stuck and injured by the locopilot while plaintiff was walking through a tunnel. The driver
didn’t whistle while he operating the train, an instruction was there to do like that but because of the
negligence from the side of driver this was happened, held defendant liable.
Limitation on the scope of the doctrine
 1. in Rescue cases
 2. by the unfair contract terms Act 1977

1) Rescue cases:-
-Its an exception to the volenti non fit injuria
- When plaintiff voluntarily taken a risk to rescue somebody from an imminent danger, the
responsible person for that danger will be liable.
- Defendant cannot take the defence
Haynes v. Harwood 1935
Defendnat’s servant left a two-horse van unattended in a street. A boy thrown a stone on the horses,
they bolted and causing grave danger to a women and children, a police officer on duty tried to
control the horses to avoid further injury to others got severe injury. Held defendant is liable.
Plaintiff the wrongdoer
 Under law of contract, one of the principle is that no court will aid a person who
found his cause of action upon an immoral or an illegal act.
 Ex turpi causa non oritur action means from immoral cause no action arises.
 If the action of plaintiff is wrong , against law, he will not succeed to his action.
In Bird v . Holbrook 1828
the plaintiff , a trespasser entitled to get compensation for injury caused to him by a
spring gun set by defendant without notice , in his garden.
 Inevitable accident
 Accident means an unexpected injury
 It is inevitable accident if the unexpected injury could not have been foreseen and avoided in spite of
reasonable care on the part of the defendant.
 Inevitable accident is a good defence if the defendant prove that he neither intended to injure the
plaintiff nor could be avoided the injury by taking reasonable care.
 Brown v. Kendal (1850)
The dogs of the plaintiff and defendant were fighting on the road . While the defendant was trying to
separate them , the stick accidently hit the plaintiff in his eye and resulted in injury. Court held that it is an
inevitable accident.
---Nitro-glycerine case 1872
Stanley v. Powell
The plaintiff and defendant who were the members of pheasant shooting, went for shooting , the defendant
fired at a pheasant but he shot from his gun glanced off an oak tree and injured the plaintiff, it was held
that it was an inevitable accident.
 Act of God (Vis Major)
 Its also an inevitable accident resulting from natural causes such as heavy rain fall, storm, earth quake
etc.
 The accident must be an extraordinary and the occurrence must not be anticipated by the defendant.
 The occurrence of such things could not be avoided by reasonable care on the part of the defendant
 Nicholas v. Marshland(1876)
The defendant created some artificial lakes on his land . Once there was an extraordinary rainfall, stated to
be the heaviest in human memory. As a result of this the embankment of the lake broke down. The rush of
the water washed away four bridges belonging to the plaintiff. Held defendant was not liable.
Kallulal v Hemchand 1958
The wall of a building was collapsed on a day when there was heavy rain fall and resulted in in the death of
two children. Court held that the defendant is liable because there was no extraordinary rainfall. So act of
god cannot be pleaded.
 Private Defence
 Law permits use of reasonable degree of force to protect one’s person or property and this right is
called right to private defence.
 There is no liability for acts done in defence .
 The forced used must be proportionate to the danger apprehended and should not be excessive.
 Bird v. Holbrook. 1823- defendant held liable
 Herbert Richard v. Munisami 1950
the plaintiff raised potato crop in his field and laid some trap to protect crops form pig, plaintiffs cow fell
into the trap and inured, court held that the defendant is not liable because he used to protect the property
was reasonable.
Necessity
 “Necessitas non habet legam” means Necessity has no law
 If defendant has done an act or inflicted a harm under necessity to prevent a greater harm , he is not
liable for the tort.
 In Mouse’s case 1609 , the defendant had thrown goods overboard a ship to reduce its weight for
reducing its weight for saving the ship and persons . The defendant was held to not to liable.
 In Cope v. Sharpe 1891, the defendant entered into the land of the plaintiff to prevent the spread of
fire to the neighboring land . The defendant was not liable for trespass.
 In leigh v . Gladstone. 1909, a hunger strike prisoner was feed forcibly to save his life, in an action
for battery , forcible feeding was justified as an act of necessity
Statutory Authority
 If the defendant has acted under statutory authority (under the authority of legislation)
he is not liable to compensate the plaintiff, even though the plaintiff has sustained loss

or injury. How ever the plaintiff can claim compensation provided under the
statute.
 Eg:- acquisition of property by government, compensation can be claimed through
acquisition law.
 In Hammer Smith Rail Co. Brand (1869) , the plaintiff was owner of the property
adjoining a railway track . The value of that property diminished due to the noise and
vibration and smoke caused by the running train . The railway track was constructed
under the statutory authority and damage was necessarily incidental to the running of
the trains, the defendants were held to be not liable.