Defences in Torts

General v Special Defences

• There are certain justifications which refer only to a
particular wrong, or to a class of wrongs.
• These are termed as special defences and have been
treated in their proper places.
• But there are other justifications which are common to
all kinds of wrongs and are treated as general defences
• There are various conditions which, when present, will
prevent an act from being regarded as wrongful.
• Under such conditions the act is said to be justified or
excused.
Categorisation
• Volenti non fit injuria or the defense of 'Consent'
• The wrongdoer is the plaintiff
• Inevitable accident
• Act of god
• Private defense
• Mistake
• Necessity
• Statutory authority
• PARENTAL AND QUASI-PARENTAL AUTHORITY
• Acts causing slight harms
Volenti non fit injuria:
• The doctrine of Volenti non-fit injuria means, "to a willing person, no
injury is done"
• It means if a person willingly consents to the infliction of harm upon
himself he is not entitled to get any remedy under the Law of torts.
• Any harm suffered voluntarily by anyone does not amount to legal
injury and the same is not actionable by the law of torts.
• his consent acts as a good defense for the defendants.
• A invites B to his home for dinner, so here A cannot sue B for
trespass.
Essential elements of Volenti non-fit injuria
• Free Consent
• Consent must not be obtained by fraud
• Consent must not be obtained under compulsion
• The defendant must not be negligent
• Mere Knowledge does not imply assent
Free Consent

• To have this defense available it is important to prove that the consent

of the defendant was free and was not influenced by anything.
• 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 defense.
• Additionally, it is also to be kept in mind that the act performed must
be the same for which consent was given.
For example
• if a guest is requested to sit in a drawing-room and without any
authority or justification, he enters the bedroom, he would be liable for
trespass and he cannot take the defense of your consent to his visit to
your house
Lakshmi Rajan v. Malar Hospital Ltd III (1998) CPJ 586 (Tamil Nadu SCDRC)

• this case the complainant i.e. Lakshmi Rajan had a painful lump in her
breast.
• The lump had nothing to do with the uterus but during surgery, her
Uterus was removed without any prior justification or consent.
• The defendant took the defense of Volenti non-fit injuria but was
rejected.
• It was held by the court that the defendants were liable.
• As the court said that the patient’s consent for the said operation does
not amount to the removal of the uterus.
Consent must not be obtained by fraud
• Consent obtained by fraud does not serve as a good defense.
• However, mere concealment of facts may not be such a fraud as to
vitiate consent.
R. v. Williams (1923) 1 K.B. 340
• The most famous case under this head is R. v. Williams
• In this case, the accused music teacher was held guilty of rape.
• He had sexual intercourse with a girl student of 16 years by making
her believe that his act will improve her voice.
• The victim misunderstood the nature of the act and gave her consent
believing that the act will improve her vocal cord.
• The court held the accused guilty of rape and the defense of Volenti
non-fit injuria was not allowed as the consent was taken by fraud.
Consent must not be obtained under compulsion

• There are circumstances when an individual does not have freedom of

choice and consent given under such circumstances does not amount
to proper consent.
• For example, a person may be compelled by some situation to
knowingly undertake some risk that he would not have undertaken if
he had a free choice.
• These types of situations generally arise in a master-servant
relationship.
• Servants generally face a dilemma of either accepting the risky task or
losing their job.
• In this situation, if the servant agrees to undertake the risky job then it
does not necessarily imply that he also agreed to suffer the
consequences of the risky job.
Imperial Chemical Industries Ltd. V. Shatwell, (1956) A.C. 656

• it was held that if a workman adopts a risky method of work, not

because of any compulsion of his employer but of his own will then
the defense of Volenti no fit injuria can be successfully pleaded by the
defense.
The defendant must not be negligent
• Generally, when the plaintiff consents to take some risks the normal
presumption is that the defendant is not going to be negligent.
• If there is any sort of negligence from the defendant’s side then he can
be made liable for the act and the doctrine of Volenti non-fit injuria is
not applicable.
• For example, if an individual consent to an operation and the operation
is unsuccessful because of the surgeon’s negligence then the surgeon
can be made liable for this, as an individual has not consented to
Surgeon’s negligence.
Slater V. Clay cross Co. Ltd. MANU /UKWA/0052/1956

• In this case, the plaintiff was hit and injured by a train while he was
walking along a narrow tunnel on a railway track owned by the
defendants.
• The defendants knew that the tunnel was generally used by General
Public due to this the company had instructed drivers to whistle and
slow down while entering into the tunnel.
• The accident had occurred due to negligence from the Driver’s side as
he failed to follow the instructions.
• The honorable court held that the defendants were liable and cannot
take the plea of Volenti non-fit injuria.
Mere Knowledge does not imply assent
• To have the correct application of the doctrine of Volenti non-fit
Injuria two important points needs to be proved by the defendants. i.e.
Plaintiff was aware of the risk present there and had consented for the
same to suffer the harm.
• In case the plaintiff was only aware of the risk but has not given his
consent then in such a situation the defense of Volenti non-fit
Injuria cannot be taken.
Smith v. Baker (1891) A.C. 325
• Here the plaintiff was a worker employed by the defendants on working a drill to cut
rock.
• Crane was used for carrying stones from one side to another and every time the
crane passed it passed over the plaintiff’s head.
• With time while he was busy continuing his work a stone fell from the crane
resulting in the injury of the plaintiff.
• The plaintiff was generally aware of the risk but the employers were negligent on
their part as they did not warn him about the recurring danger.
• The House of Lords held that in this case there was a mere knowledge of risk
without any assumption of it.
• Hence, the doctrine of Volenti non-fit Injuria is not applicable and the defendants
were liable.
Difference between Volenti non-fit Injuria
and Contributory Negligence
• The doctrine of Volenti non-fit injuria is a complete defense in case of contributory
negligence the liability of defendants is based on the proportion of his/her fault.
Basically, in contributory negligence, the damages which the plaintiff can claim will
be reduced to the extent to which he/she was to blame.
• In the case of Contributory negligence, both i.e. plaintiff and defendant are
negligent. Whereas in Volenti non-fit Injuria it may be a situation that the plaintiff
may have voluntarily entered at the same time he/she is exercising the due care of
his safety.
• The next difference is about the awareness of the nature and extent of danger which
the plaintiff is going to encounter. In the case of Volenti non-fit injuria, the plaintiff
is completely aware of the nature and extent of danger which he/she is going to
encounter. Whereas in Contributory negligence plaintiff did not know although he
ought to have known about it.
Landmarks cases
• Padmavati v. Dugganika MANU/KA/0061/1974.
• In this case, a driver gave a lift to two strangers in a jeep while going for a
petrol filling.
• Suddenly one of the bolts fixing the right front wheel to the axle came out
and the Jeep went out of control resulting in the accident.
• Both the strangers were tossed away and one of them died while the other
suffered serious injuries.
• It was held by the court that the defendants cannot be held liable for the act
as it was a sheer accident and the plaintiff voluntarily entered into a Jeep.
• Hence, the defense of Volenti non-fit injuria can be successfully pleaded.
Thomas v. Quartermaine (1887) Q.B.D. 685
• In this case, the defendant owned a brewery and the plaintiff was an
employer in his brewery.
• In an instance, while trying to remove the lid from a boiling tank, the
lid got tightly stuck and he applied extra force to pull the lid out.
• Due to that extra force, he was tossed into a container that was filled
with very hot liquid and suffered serious injuries.
• The plaintiff sued the defendant but the court held that the defendant
was not liable as the risk was visible and the plaintiff voluntarily took
that risk.
• Hence, the defense of Volenti non-fit injuria was successfully pleaded.
2. The wrongdoer is the plaintiff
• “Ex turpi causa non oritur actio” which says that
“from an immoral cause, no action arises”
• If the basis of the action by the plaintiff is an unlawful
contract then he will not succeed in his actions and he
cannot recover damages.
• A plaintiff is not disabled from recovering by reason of
being himself a wrongdoer, unless some unlawful act or
conduct on his own part is connected with the harm
suffered by him as part of the same transaction.
Bird v Holbrook (1828) 4 Bing 628
• Thus, in Bird v Holbrook, the plaintiff was a trespasser
as he climbed over defendant’s wall in pursuit of a fowl,
• but he was held entitled to damages for the injury
caused by a spring gun set by the defendant without
notice in his garden,
• although the injury would not have occurred if the
plaintiff had not trespassed on the defendant’s land.
National Coal Board v. England [1954] 1 All ER 546 (HL)

• Lord Asquith gave illustrations as to when a defence of ex

turpi causa may succeed or may not succeed. He said:
• Possibly a party to an illegal prize fight who is injured in the
conflict cannot sue for assault. If two burglars, A and B, agree
to open a safe by means of explosives, and A so negligently
handles the explosive charge as to injure B, B might find
some difficulty in maintaining an action for negligence
against A. But if A and B are proceeding to the premises
which they intend burglariously to enter and before they enter
them B picks A’s pocket and steals his watch, I cannot prevail
on myself to believe that A could not sue in tort. The theft is
totally unconnected with burglary.
3. Inevitable accident
• 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, 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.
Fardon v Harcourt-Rivington, (1932)
146 LT 391 (392).
• Lord Dunedin observed:
• 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.
Two Categories
• 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 the whole or
in part in the agency of man, whether in acts of
commission or omission, nonfeasance or of
misfeasance, or in any other causes independent of the
agency of natural forces.
• The term Act of God is applicable to the former class.
• 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.
• 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, 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 strict
liability as laid down in MC Mehta v UOI, which is not subject to any exception. It will thus
be seen that the plea of inevitable accident has now lost substantially all its utility.
Holmes v Mather, (1875) LR 10 Ex 261
• The defendant’s horses while being driven by his
servant on a public highway, ran away by the barking of
a dog and became so unmanageable that the servant
could not stop them, but could, to some extent, guide
them. While unsuccessfully trying to turn a corner
safely, the servant guided them so that without his
intending it, they knocked down and injured the plaintiff
who was in the highway.
• It was held that no action was maintainable by the
plaintiff for the servant had done his best under the
circumstances.
4. Act of god
• Those inevitable accidents which are occasioned by the
elementary forces of nature unconnected with the agency
of man or other causes are termed “Acts of God” or Vis
Major.
• Vis Major is such a direct, violent, sudden and irresistible
act of nature as could not, by any amount of human
foresight, have been foreseen, or if foreseen, could not,
by any amount of human care and skill, have been
resisted,
• Eg: storm, tempest, extraordinary rainfall, lightening,
extraordinary severe frost, etc.
The essentials for this are:
1. Natural forces' working should be there.
2. There must be an extraordinary occurrence and not the
one which could be anticipated and guarded against
reasonably.
Nicholas v Marshland (1875) LR 10 Ex 255

• the defendant had a series of artificial lakes on his land,

in the construction or maintenance of which there had
been no negligence.
• Owing to a most unusual fall of rain, so great that it
could not have been reasonably anticipated, some of
the reservoirs burst and carried away four country
bridges.
• It was held that the defendant was not liable, in as
much as the water escaped by the act of God.
5. Private defence
• Every person has a right to defend his own person,
property, or possession, against an unlawful harm.
• This may even be done for a wife or husband, a parent
or child, a master or servant.
Essentials
1. The use of force is justified only for the purpose of self-
defence
2. There should be an imminent threat to a person's life or
property.
3. The force used must be reasonable and to repel an
imminent danger.
4. For the protection of property also, the law has only
allowed taking such measures which are necessary to
prevent the danger.
Reasonable Force
• The force employed must not be out of proportion to
the apparent urgency of the occasion.
• The person acting on the defensive is entitled to use as
much force as he reasonably believes to be necessary.
• The test is whether the party’s act was such as he
might reasonably, in the circumstances, think necessary
for the prevention of harm which he was not bound to
suffer.
• The necessity must be proved.
Morris v Nugent, (1836) 7 C & P 572.
• Where the defendant was passing by the plaintiff’s
house, and the plaintiff’s dog ran out, and bit the
defendant’s gaiter, and on the defendant turning round,
and 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 so
doing.
• To justify shooting, the dog must be actually attacking
the party at the time
Ramanuja Mudali v. M. Gangan AIR 1984 Mad 103

• A landowner i.e. the defendant had laid a network of live

wires on his land.
• The plaintiff in order to reach his own land tried to cross his
land at 10 p.m.
• He received a shock and sustained some serious injuries due
to the live wire and there was no notice regarding it.
• The defendant was held liable in this case and the use of live
wires is not justified in the case.
6. Mistake
• Mistake is a very weak defence
• There are two types of mistake which a normal person
can do according to tort:
1.Mistake of Law
2.Mistake of Facts
• In general, the mistake of law is no defence to the
violation of the law.
• It is presumed that all people know and understand the
law of the land, except minors, lunatics or insane etc.
• Mistake may provide defence in exceptional cases
Morrison v. Ritchie & Co 1902 SLR
39
• the defendant by mistake published a statement that
the plaintiff had given birth to twins in good faith.
• The reality of the matter was that the plaintiff got
married just two months before.
• The defendant was held liable for the offence of
defamation and the element of good faith is immaterial
in such cases.
Consolidated Company v. Curtis 1891
• An auctioneer auctioned some goods of his customer,
believing that the goods belonged to him.
• But then the true owner filed a suit against the
auctioneer for the tort of conversion.
• The court held auctioneer liable and mentioned that the
mistake of fact is not a defence that can be pleaded
here.
7. Necessity
• This exception is based on the maxim salus populi suprema lex (the welfare of
the people is the supreme law),
• a maxim founded on the implied assent on the part of every member of society,
that his own individual welfare shall, in cases of necessity, yield to that of the
community and that his property, liberty and life, shall, under certain
circumstances, be placed in jeopardy or even sacrificed for the public good.
• To abridge if an act is done intentionally in such a way so to prevent a greater
threat, the person performing the act will not be liable.
• it must be accepted, is very wide and vague. It penetrates into various defences
like act of State, act of God, self-defence, duress, inevitable accident and
governmental acts, with which it has great affinity.
Conditions to be fulfilled
• To avail of this defence the following conditions must be fulfilled:
• (i) There must exist a necessity,
• (ii) It must compel him to act immediately.
• (iii) He has to make a choice between an individual's interest and the
interest of society i.e. the collective interest, before he acts.
• (iv) The actor must act in good faith, honestly and reasonably.
• (v) His action should stop as soon as the emergency is over.
• (vi) As is the emergency, so is his latitude for action.
Leigh v. Gladstone (1909) 26 TLR 139.
• A woman was forcibly fed while she was a hunger striking prisoner,
• the defendant was allowed to take the defence of necessit
8. Statutory authority
• A statutory authority is a body whereon powers to do something are
conferred by law, backed by an implied threat of some legal action if
the exercise of power is impeded.
• Such authorities are of two types: absolute and conditional;
• in the case of the former no action lies even if the act causes injury to
anyone because the authorised act has to be performed,
• in the latter the doing of the act has been merely permitted and
therefore if it is done without using proper discretion an action lies.
Metropolitan Asylum District Managers v Hill: HL 7 Mar 1881

• Defendants a local authority were authorized to erect and maintain a small pox
hospital near residential area.
• Where it caused of danger of infection to people living nearby.
• It was held to be a nuisance.
• That is not exercised maliciously and disregard of legitimate rights of other
persons.
Suratee Bara Bazaar Co. Ltd. v. Municipal Corpn. of Rangoon, AIR 1928 Rang 87

• Corporation was under a duty to erect urinals and water-closets for

public use.
• A site was selected to which the plaintiff objected as it would be a
source of nuisance.
• It was held that the corporation had acted bona fide in selecting the site.
• If in pursuance of an act authorised by the legislature and all other
incidental and subsidiary acts thereto a nuisance is created, the local
body authorised to perform the act cannot be restrained by injunction
nor made liable for damage except on the ground of negligence.
9. PARENTAL AND QUASI-PARENTAL
AUTHORITY
• Parent, Husband, teachers are the guardians of their children and,
therefore, in a position of authority over them.
• This natural relationship of parent and child gives rise to various legal
duties and rights.
• It is the duty of a parent to maintain his child and a parent has a right
to care, custody, control, correction and chastisement of his child.
10. Acts causing slight harms
• De minimis non curat lex is the Latin maxim meaning that the law
does not concern itself with trifles.
• A court of law will not take notice of a trifling, immaterial or an
insignificant matter and will at once dismiss the suit, unless it
discloses peculiar circumstances such as the trial of a right or
involvement of some personal character.
• This principle is recognised in both, criminal and civil laws.
• Thank You