CHAPTER-1

NATURE OF TORT

● The term tort is the French equivalent of the English word 'wrong' and of the
Roman law term 'delict'. The word tort is derived from the Latin word tortum
which means twisted or crooked or wrong and is in contrast to the word rectum
which means straight. Everyone is expected to behave in a straightforward
manner and when one deviates from this straight path into crooked ways he has
committed a tort. Hence tort is a conduct which is twisted or crooked and not
straight.
● The law imposes duty to respect the legal rights vested in the members of society
and the person making each of that duty is said to have done the wrongful act.
● The expression wrong is of two types, ie. Public wrong and private wrong.
Private wrongs are the infringement or privation of private or civil rights
belonging to individuals are considered as individuals and are there upon
frequently termed civil injuries whereas as public wrong are breach and violation
of public right and duties which affect the whole community considered as a
community ; and a distinguished by application and crime and
misdemeanors.The acts which are crime and punishable under Indian Penal
code 1860, are offences and are public wrongs, and are tried in criminal courts.
But all others are private wrongs and tried in Civil Courts. Therefore Tort is a
civil wrong and tried in civil court.

● The term ‘tort’ owes its origin to the Common Law system of England. (Common
law means decided on previous cases).
● The law of tort is the far-reaching body of rights, duties, and cures connected
through the courts in civil procedures. It gives remedies to help the individuals
who have endured misfortune or damage following the wrongful or careless
actions of others.
● Socially, the function of tort is to shift loss sustained by one to the person who
seemed to have caused it or been responsible for its happening for some measures
to stop the enterprise or even the whole community.
● Damages in the case of tort are unliquidated where for other civil wrongs
damages may be liquidated. Liquidated damages means such compensation
which has been previously determined or agreed to by the parties. that vendor
compensation has not been so determined but the same is left to the discretion of
the court damages are set to be unliquidated.
● The person who commits tort is called ‘tortfeasor’ or ‘wrongdoer’. The other
person who suffered injury or damage is called ‘injured’ or ‘aggrieved party’.

The reason why tort doesn't really have a definition is because the different wrongs
included under this head are diverse, each having its own peculiar historical
background. For example defamation deals with the reputation of a person whereas
trespass deals with non consensual use of someone else's property. Following are
some of the important definitions:-
S.2 (m), the Limitation Act, 1963
Tort means a civil wrong which is not exclusively a breach of contract or breach of
trust .
According to Salmond “A tort is a civil wrong for which the remedy is an action
for unliquidated damages and which is not exclusively the breach of a contract, or
the breach of a trust, or the breach of other merely equitable obligation”

Essential ingredients of Salmond’s definition-

1.Tort is civil wrong
In case of civil wrong the injured party, i.e. , the plaintiff institutes civil proceedings
against the wrongdoer i.e. , defendant. In the case of a criminal wrong the
proceedings against the accused are bought by the State. Moreover in the case of
criminal wrong the individual who is the victim of the crime i.e. , the sufferer is not
compensated instead justice is administered by punishing the wrongdoer.
However, it is possible that an act may result in wrongs, a crime as well as a tort. In
such cases both civil and criminal remedies would concurrently be available . There
would be civil action requiring the defendant compensation as well as criminal
action awarding punishment to the wrongdoer.

2. Tort i.e. , This wrong is not breach of contract* or breach of trust or other
equitable obligations
Tort is civil wrong which is not exclusive to any other kind of wrong. for example a
person agrees to purchase a radio and thereafter does not fulfill his obligation the
wrong will be a mere breach of contract. It may be noted that there is a possibility
that the same act may amount to two or more civil wrongs one of which may be a
tort .For example A delivers his horse to B for safe custody for a week and B allows
the horse to die of starvation. B's act amounts to breach of contract of bailment and
commission of tort of negligence. Since both are civil wrongs and damages is the
main remedy for any kind of civil wrong, the plaintiff cannot claim damages twice.

3.For this wrong the remedy is available (an action for unliquidated damages)
Damages is the most important remedy for tort .After the wrong has been
committed ,generally, is the money compensation which satisfy the injured party.it
is not possible to undo the wrong which has already been caused .the only thing
which can be done in such a case is to see what is the money equivalent to the harm
done and the sum is asked to be paid by the defendant to the plaintiff. Because
damages is the most important remedy and generally only remedy for tort ,it
indicates that wrong is a civil wrong rather than criminal wrong.

Why are the damages provided unliquidated?

In the case of tort parties do not know each other until the tort is committed and
moreover it is difficult to visualize beforehand the quantum of loss in the case of
tort, and therefore damages paid are to be determined at the discretion of the court.
It is possible in the case of contact that contracting parties at the time of making of
the contract may make a stipulation as regards the amount of compensation
 payable by either of the parties in the event of a breach of the contract. Such a
scenario is not possible for torts.

* in tort law there is no agreement or contract between the parties. Moreover, in a tort
case there is a duty that is violated, and this duty is imposed by law and not by the
parties themselves. In contract law, the duty that is breached is a duty established by the
parties in their agreement.

Winfield opine that “Tortious Liability arises from the breach of duty primarily
fixed by law; this duty is towards persons generally and its breach is redressable by
an action for unliquidated damages.
Elements of Dr. Winfield’s Definition-
• Breach of duty is fixed by law
• Duty is towards person generally
• Breach of duty is redressible by action for unliquidated damages

According to Fraser “A tort is an infringement of the right in rem of a private

individual giving a right of compensation at the suit of the injured party”.

The basic idea which is indicated by these definitions is- Firstly, tort is a civil wrong
and secondly not every civil wrong is a tort. there are other civil wrongs all of the
importance of which are a breach of contract or breach of trust.

How to identify a tort- Well some wrongful act has been done it has got to be
seen whether it is a civil or criminal wrong. If the wrong is a civil one then we have
to see whether it exclusively belongs to ‘any’ other recognized category of civil
wrong like ‘breach of contract’ or ‘breach of trust’. If we find that it is not
exclusively any of the Other civil wrongs around we can say that it is a tort.

Liability in tort- liability in general depends on the defendant having, by act or

omission, acted in breach of legal duty incumbent on him and infringed a
recognized legal right vested in the plaintiff and thereby causing harm to plaintiff of
a foreseeable kind. Not every harm is actionable; there is no liability for an
inevitable accident or for an act of god; there are justification such as that utility or
common law authority. The pecuniary consequence of liability will be shifted by
liability insurance. The standard of care and proportion which imports liability for
harm is generally failure to take the care and precaution which would be reasonable
in the circumstances.

It is essentially confusing to think of tort is connected with wrong as the wrongful

element consists only in there having a breach of legal duty purely technical and not
in any moral delinquency or criminality. Tort is an ever growing branch of law.
Case laws have extended liability eg, from physical injuries to mental injuries, and
from intentional harm to harms done negligently.
 Remedy in tort- the normal remedy for tort is an award of pecuniary damages* in
compensation for the harm done ; in personal injury and death cases, the
computation of damages involves many complications.

*Pecuniary damages are simply quantifiable compensatory damages. They can

be measured in financial terms, and they’re included in most civil lawsuits.

Law of torts in india

Under the Hindu law and the Muslim law tort had a much narrower conception
than the tort of the English law. The expression justice, equity and good conscience
was interpreted by the Privy Council to mean the rules of English Law if found
applicable to Indian society and circumstances. The application of the English law
in India has therefore been a selective application. The development in Indian law
need not be on the same lines as in England. In M.C. Mehta v. Union of India ,
Justice Bhagwati said, we have to evolve new principles and lay down new norms
which will adequately deal with new problems which arise in a highly industrialized
economy. We cannot allow our judicial thinking to be constructed by reference to
the law as it prevails in England or for the matter of that in any foreign country. We
are certainly prepared to receive light from whatever source it comes but we have to
build our own jurisprudence. In a more recent judgement of Jay Laxmi Salt Works
(p) ltd. v. State of Gujarat , Sahai, J., observed: truly speaking the entire law of torts
is founded and structured on morality. Therefore, it would be primitive to close
strictly or close finally the ever expanding and growing horizon of tortious liability.
Even for social development, orderly growth of the society and cultural refinement
the liberal approach to tortious liability by court would be conducive.

The nature of tort can be understood by distinguishing tort with crime

and breach of contract

Difference between breach of contract and tort

BREACH OF CONTRACT TORT

In breach of contract, there is an
infringement of a right in personam, i.e.,
right is available only to some definite
person and in which the society has no
concern
In case of breach of contract, motive is
often taken into consideration. Thus if
the defendant does an act with good
motive or in good faith to save a person
In tort, there is a violation of a right in
rem, i.e., a right vested in some
determinate person and available
against the whole world
In tort, motive plays no role. The
motive for breach of duty is immaterial.
The defendant cannot take the defence
of good faith or good motive and he has
from being harmed then he will not be to pay damages to the plaintiff.
liable to the plaintiff.
In contract, in case of breach of contract In tort, the exemplary damages* are
the nature of damages is compensatory awarded to punish the defendant.
and it is generally fixed. (already fixed by
parties to contract)

In case of a contract, the damages are In tort, damages are both

only compensatory and not punishing or compensatory, punishing and
exemplary. exemplary.
In breach of contract, the damages are In tort, the damages are generally
fixed by the terms and conditions of unliquidated and are determined by the
contract made between the parties. court on the facts and circumstances of
the case.
A breach of contract results from the Tort results from breach of such duties
breach of a duty undertaken by the which are not undertaken by the parties
parties themselves. themselves but which are imposed by
law
* damages awarded to a plaintiff above the value of actual loss sustained so that they
serve also as a punishment to the defendant and a deterrent to others

In a contract the duty is based on the privity of contract that is the lord is not allow a
stranger to file a suit on breach of contract. The site is only available to the contracting
parties.

Donoghue v. Stevenson (1923)

Facts-
On August 26 1928, Mrs Donoghue’s friend bought her a ginger-beer. She consumed
about half of the bottle, which was made of dark opaque glass, when the remainder of the
contents was poured into a tumbler. At this point, the decomposed remains of a snail
floated out causing her alleged shock and severe gastro-enteritis.
Mrs Donoghue bought an action against the manufacturer for negligence.

Issue-
Did the manufacturer owe Mrs. Donoghue duty of care in absence of contractual
relations contrary to the established law.

What was held?

The house of lords formed for Mrs Donoghue with the leading judgement delivered by
lord Atkin in 3-2 majority. The ratio decidendi* of the case is not straight forward. Three
Major things were held in this case. 1) negligence is distinct and separate in tort 2) there
does not need to be a contractual relationship for a duty to be established
3)manufacturers owe a duty to the consumers who intend to use their product.
* Latin term referring to the reason for a court or jury coming to a particular legal
decision.

The primary outcome of Donoghue, and what it is best known for, is the further
development of the neighbour principle by Lord Atkin, who said: “You must take
reasonable care to avoid acts or omissions which you can reasonably foresee would be
likely to injure your neighbour. Who, then, in law, is my neighbour? The answer seems
to be persons who are so closely and directly affected by my act that I ought reasonably
to have them in contemplation as being affected when I am directing my mind to the
acts or omissions which are called in question.”

There may be certain cases when the same fact results in a breach of contract as well as a
tort. The plaintiff cannot claim the damages twice over. He has a choice whether to sue
for the breach of contract or for the commission of tort.

DIFFERENCE BETWEEN TORT AND CRIME

● Certain exceptional cases the court does not permit settlement in criminal cases
between the wrongdoer and aggrieved party first compounding enough is a
general rule considered to be unlawful.
● The idea of awarding compensation to the enjoyed party under civil law makes
the punishment under criminal law protect this by preventing the offender from
committing border fences entertaining him and other potential offenders from
committing wrongs.
 ● Arrest and detention can be made both in criminal and civil wrong. However
there is a basic difference between them. Under criminal law imprisonment is
made by the way of penalty for a wrong act already been done ideas to put
pressure upon the defendant to perform certain duty and the defendant is
released when the duty has been performed

Privity of contract and tortious liability

A stranger is not allowed to file a suit in the contract. This right is available only to a
person who is a party to the contract and is called doctrine of privity of contract.

Winterbottom v Wright (1842)

Facts
Winterbottom was a coachman who drove a horse-pulled mail coach. His employers
entered into a contract with Wright to maintain the coach and keep it in good working
order. Wright failed to do this, and Winterbottom fell off the coach and injured himself.
He sued Wright claiming that a duty arose out of the relating contracts, although they
had no contractual relationship to one another.

Issue
Whether the defendant owed a duty to any third party who might be injured as a result of
the negligent provision of the coach or indeed any other negligent actions in regard to
the contract.

What was held?

The claimant’s claim failed. It was held that although the defendant contracted to
maintain the mail coach in a safe condition and undoubtedly failed to do so, the duty was
owed under the defendant’s contract with the postmaster general. The defendant owed
no duty to the claimant because the duty could not extend beyond the contractual one. It
was considered that to allow the claimant’s claim to succeed would cause a duty to be
held in all circumstances where harm occurred. There would be no limit to the number
of claims that might arise. It was recognised that leaving the claimant without remedy
was harsh, but that this should not influence the court’s decision.

This case law was responsible for the introduction of “privity of contract fallacy”.the
fallacy hart its end in 1932 in Donoghue vStevenson.
Now consumers can bring an action in tort against the manufacturer or even though
there was no contract between the manufacturer and the consumer.

Kalua mittelbachert v. East India hotels Ltd.

Facts
There was a contract between Lufthansa German airlines and hotel Oberoi
intercontinental of Delhi for the stay of the crew of Lufthansa as guests in the hotel. The
plaintiff klaus Michael Barrett co pilot in Lufthansa stayed in the hotel for a few days.
During his stay as the plaintiff took a dive in a swimming pool in the hotel due to the
defective design of the swimming pool, his head hit the bottom of the pool and he
received serious head injuries full stop as a consequence of that he was paralyzed and
remained an agony for 13 years before he died.

Issue
Whether the defendant owed it duty of care to the plaintiff even though he wasn't a party
to the contract

What was held?

The defences pleaded by the defendant was that he was a stranger to a contract as the
contract for stay was made between his employer that is Lufthansa and the hotel full stop
the plea was rejected. It was held that he could sue under law of contract as a beneficiary
of the contract. Moreover, for an action under law of torts for compensation the plea of a
stranger to contract was relevant. Due to the hazardous nature of the premise the rule of
absolute liability was applied and defendants were required to pay exemplary damages
amounting to 50 lakh rupees.

Tort and breach of trust distinguished

In the case of breach of trust by the trustee , the beneficiary can claim such
compensation which depends upon the laws that the trust property has suffered.
Damages are liquidated in breach of trust in tort there unliquidated. The law of torts has
its origin as a part of common law where breach of trust could be redressed in the court
of chancery.

Tort and quasi contract

Is it law of tort law of torts

Salman had posed two questions

1) Is it the law of tort,i.e., is every wrongful act for which there is no justification for
excuse to be treated as a tort; or
2) Is it the law of torts consisting only of a number of specific wrongs ,beyond which
the liability under this branch of law cannot arise.
Winfield preferred the first of these alternatives and according to him it is the law of tort
According to this theory , if I injure my neighbour he can sue me in tort whether the
wrong happens to have a particular name like an assault, battery , deceit or whether it
has more special title at all and I shall be liable if I cannot prove my lawful
justification.Proponents of this theory say that tort law is a growing subject, many new torts
have come up and many existing torts have been expanded. Therefore, tort law is referred to
as “law of tort”.
Salmon on the other hand preferred II alternative that is law of torts. He explained his
stance using the pigeon hole theory.
Each hole consists of a labelled tort such as assault, battery, deceit, slander, negligence,
etc.He further said that if a particular act does not fit in any of these pigeon holes, then
he has committed ‘no tort'. There is no general principle of liability and if the plaintiff
can place his wrong in any one of the pigeon holes each containing a labelled tort, he will
succeed.

Although there is no formal recognition of either theory, a large number of jurists have
aligned their views with the concept of “law of tort” and supported the theory proposed by
Winfield. The reasons are obvious. As observed by Lord Macmillan in Donoghue v.
Stevenson (1932) AC 56, “Torts are infinitely various, not limited or confined. The
conception of legal responsibility may develop in adaptation to altering social conditions and
standards. The criterion of judgment must adjust and adapt itself to the changing
circumstances of life.”

ESSENTIAL OF TORTS

I. Act/omission and breach of duty (wrongful act)

To make a person liable in tort, he must have committed some act or omission* in
the performance of his legal duty. There must be some rupture of obligation to
constitute such wrongful act or omission. An act which, prima facie, appears to be
innocent may become tortuous, if it invades the legal right of another person. A simple
example is that of erecting a structure on one’s own land. It is completely lawful to
enjoy one’s own property by erecting whatever one wants to, on his land. But, if there is
a law which gives a right to unobstructed transmission of sunlight to a person’s house if
he had been enjoying that sunlight for more than 20 years, then any structure on
anybody’s land which may block sunlight to his house is violation of his right and he is
entitled to file a suit.

Glasgow corporation v taylor [I 1992 1 AC 44]

Facts
The father of a seven-year-old boy sued the Glasgow Corporation for damages following
the death of his son who died as a result of eating berries from a poisonous plant that
was growing in the Botanic Gardens in Glasgow. The gardens were open to the public
and managed by the defendant. The father argued that the defendants allowed children
to pass through their grounds frequently yet did not take any action to warn or alleviate
the danger caused by the poisonous plant to children. The plant was enclosed by a
wooden fence which was open to the public and easily accessed by children.

Issue
It was important for the court to consider in this case whether the defendant was
negligent in the death of the claimant. It was particularly important to understand the
steps that the defendant had taken to prevent the danger caused by the fact that the
poisonous berries in question would be particularly attractive to young children.

What was held?

The court held that the Glasgow Corporation was liable in this instance. They had
permitted children to go on to the land and it is understandable that the berries would
have appealed to visiting children, thus representing a danger. The defendants were
aware of this danger caused by the poisonous berries and did nothing to prevent the
damage. On this basis, the action was required to proceed to trial.

Municipal corporation of delhi v subhagwanti [AIR 1966 SC 750]

facts
Three suits for damages were filed by the respondents as heirs of three persons who
died as a result of the collapse of the Clock Tower in Chandni Chowk, Delhi, belonging to
the appellant-Corporation, formerly the Municipal Committee of Delhi. The building was
80 years old and the life of the structure of the top storey, having regard to the type of
mortar used, could be only 40 to 45 years and the middle storey could be saved for
another 10 years. The collapse of the Clock Tower was due to the thrust of the arches on
the top portion. If an expert had examined this building specifically for the purpose he
might have found out that it was likely to fall. When the building was inspected after the
collapse it was found that it had deteriorated to such an extent that it was reduced to
powder without any cementing properties.

Issue-
● Whether the doctrine of res ipsa loquitur(Latin for "the thing speaks for itself.")
will apply?
● Whether the appellant, as an owner of the Clock Tower abutting on the highway,
is bound to maintain it in a proper state of repairs so as not to cause any injury to
any member of the public using the highway and whether the appellant is liable
whether the defect is patent or latent?
● Whether the appellant was negligent in looking after and maintaining the Clock
Tower and was liable to pay damages for the death of the persons resulting from
its fall?

What was held

To every right there corresponds an obligation or duty. If the right is legal, so is the duty. If
the right is contingent, so is the obligation. If the right is moral, so is the duty. Same goes for
the imaginary rights. A right in its main aspect consists in doing something, or receiving and
accepting something. Consequently, a duty in its main aspect consists in doing something or
refraining from doing or performing an act. For example, servitude of passage over a field
appears as a right of walking or driving over it by the owner of a dominant tenement. The
duty of the servient owner is to refrain from putting obstacles. The duty with which the law
of torts is concerned is the duty from to abstain from wilful injury, to respect the property of
others, and to use due diligence to avoid harm to others.
It may be noted that the wrongful act or a wrongful act must be one that is recognised by
law if there is a mere moral or social home there cannot be a liability for the same. A man
can't be held accountable for social or good off-base. For example a person can’t be
punished for not helping a beggar.

II. Legitimate/legal damage

To be successful in an action for tort, the plaintiff has also to prove legal damage or
an injury. The legitimate right(s) vested with the offended party ought to have been
broken i.e. certain acts or oversight have brought about the transgression of lawful
duty.
“Damage” means the harm or loss suffered or presumed to be suffered by a person as
a result of some wrongful act of another. The difference between the terms “damage”
and “damages” is that, the former refers to the loss suffered by someone while the
latter refers to the compensation awarded by the court to the victim for the losses
suffered by him.

From the point of view of the presumption of damage, rights are classified into two
categories: absolute and qualified.
When an absolute right is violated the law conclusively presumes damage even if the
person wronged may not have suffered any pecuniary loss. Violation of absolute right
is actionable per se, that is, without proof of any damage. The damage so presumed is
called legal damage. The significance of legal damage is illustrated by two maxims,
namely, injuria sine damno and damnum sine injuria.
In case of qualified rights, there is no presumption of damage and the violation of such
rights is actionable only on the proof of damage

(A)Injuria sine Damnum- Injuria sine damno refers to the cases of infringement of
an absolute private right without any actual loss or damage. Here the actual damage
means physical loss in terms of money, comfort, health, etc. This maxim says that the
infringement of certain rights is itself considered as damage and there is no need to
prove that an actual damage is caused.Every person has an absolute right over his
property, to the immunity of his person, and an infringement of these rights is
actionable per se. Here, the law presumes damage because certain acts are so likely to
result in harm owing to their mischievous tendency that law has strictly prohibited
them. Under this maxim, actual or perceptible or appreciable loss or detriment is not
indispensable to the foundation of an action.

Ashby vs white (1703)

Facts
The plaintiff was a qualified voter at a parliamentary election , but the defendant, of a
returning officer ,of wrongfully refused to take the plaintiff's vote. no loss suffered by
such refusal because a candidate for whom he wanted to vote won the election in spite of
that.

Issue
This topic is one of the first issues based on civil rights.The question, in this case, is
whether one party may seek damages if one of its civil rights is violated by the action of
another party.

What was held?

It was held that the defendant was liable . holt, C.J said " if the plaintiff has a right
former must of necessity have a means to vindicate and maintain it , and a remedy
former if he is injured in the exercise of enjoyment of it and indeed it is a vain thing to
imagine a right without a remedy ( ubi jus ibi remedium) for want of right and want of
remedy are reciprocal."

Also, in Bhim Singh v The State of J&K(1986)

Facts
The petitioner, an MLA of Jammu and Kashmir assembly was wrongfully detained by the
police while he was going to attend the assembly session. He was not produced before
the magistrate within the requisite period .

What was held?

Bhim Singh was awarded exemplary damages amounting to rupees 50000. The court
said that even though the person you were going to vote for one , still he was deprived of
his constitutional right to attend the assembly session. There was also a violation of
fundamental right to personal liberty guaranteed under article 21 of the constitution.

The court ruled that there "certainly was a gross violation of Bhim Singh's constitutional
rights" and condemned the "authoritarian acts of the police." The judges stated that the
police were but minions and that they were in no doubt that the top levels of the government
of Jammu and Kashmir were ultimately responsible.
The Supreme Court in a landmark judgement that impacted tort law in India, awarded Bhim
Singh a compensation of fifty thousand rupees for his illegal detention and false
imprisonment by the police.

Marzetti v. Williams (1830) 1 B & Ad 415:

facts
In this case,the plaintiff (Marzetti) was holding an account in the bank of the defendant.
Though there was sufficient money in the plaintiff’s account, when the plaintiff tried to
withdraw some money via self-cheque, he was not allowed to do the same without any
sufficient reasoning by the bank officials for their act. Plaintiff filed the suit against the
banker who had refused to honour his cheque.Defendant was held liable by the court and
plaintiff was compensated for not being able to withdraw his money.

Asharfi Lal v. Municipal Corporation of Agra:

In this case, the plaintiff (Ashrafilal)’s name was deleted and dropped from the voter list by
the concerned authorities (election officials), as a consequence of which the plaintiff was not
able to exercise his right to vote. Plaintiff sued the Municipal Corporation of Agra, holding it
responsible for the violation of his fundamental right. Municipal Corporation of Agra was
held liable by the court as the plaintiff’s legal right (right to vote i.e. a fundamental right) was
violated and compensation was granted to the plaintiff.

(B) Damnum sine injuria- According to this maxim, there is some damage caused to
the offended party with no breach of duty towards the offended party's legitimate right. Since
no legal right has been infringed so no action lies in the cases of Damnum Sine Injuria. Here
the actual damage means physical loss in terms of money, comfort, health, etc. In these
cases, no action lies. Mere loss in money or money’s worth does not, by itself, constitute a
tort. A man cannot seek relief in law regardless of whether the damage is caused because of
the ponder act of the respondent, as long as the other party is practicing his legitimate right.
The general principle on which thia maxim is based upon is that if one exercises his common
or ordinary rights, within reasonable limits, and without infringing other’s legal right; such an
exercise does not give rise to an action in tort in favour of that other person.
The maxim means, it can be implied, that there are no legal remedies for moral wrongs
unless some rights of the victim are being violated.

In grant v. australian knitting mills ( similar case as donoghue v. stevenson) lord wright said
that “the mere fact that a man is injured by another’s act gives in itself no cause of action; if
the act is deliberate, the party injured will have no claim in law even though the injury is
intentional, so long as the other party is exercising a legal right.”

Acton v. Blundell (1843)12 M & W 324:

In this case, the defendant (a landowner) in carrying on the mining operations on his field in
the usual manner ended up draining the water from the land of another owner (plaintiff)
through which the water flowed in a subterraneous course to his well. It was ruled that the
defendant need not pay any damages to the plaintiff as the defendant was not involved in any
infringement of the right of the plaintiff and that the defendant was in his complete right to
use the water for his mining purposes.

Gloucester grammar school (1410)

facts
In this case, the defendant set up a rival school to that of the plaintiffs. Because of the
competition, the plaintiffs’ had to reduce their fees from 40 pence to 12 pence per scholar
per quarter. Hence, he suffered losses.

Issue
Does the defendant are going to be responsible for the loss suffered by the plaintiff by
fixing a rival school and have damaged the right of the plaintiff ?Does this case not cover
the essentials of 'Damnum Sine Injuria? and if yes then the defendant couldn't be held
liable?
What was held?

It was held that the plaintiff had no remedy for the losses suffered, since the act though
morally wrong has not violated any legal right of the presumes in cases plaintiff.In this
Case, It was held that no suit could lie, the defendant wasn’t liable. Compensation is not
any ground of action albeit the monetary loss is caused but if no right is violated. The
defendant had lawfully found out his school and didn’t violate any legal rights of the
plaintiff in doing so.

Ushaben vs bhagyalaxmi chitra mandir [AIR 1978 Gujarat 13]

Facts

The plaintiffs sued for a permanent injunction against the defendants to restrain them
from exhibiting the film named “Jai Santoshi Maa”. It was contended that the film hurt
the religious feelings of the plaintiff insofar as Goddesses Saraswati, Laxmi and Parvati
were depicted as jealous and were ridiculed.

Issue

Can religious sentiments be recognized as a legal right?

What was held?

It was observed that hurt to religious feelings had not been recognized as a legal wrong.
Moreover, no person has a legal right to enforce his religious views on another or to
restrain another from doing a lawful act, merely because it did not fit in with the tenets
of his particular religion.Since there was no violation of a legal right, a request for an
injunction was rejected.

Mogul steamship Co. v. McGregor Gow and Co.[ (1892)AC 25]

Facts
The plaintiffs were independent shipowners who sent their ships to the cargo port to
obtain cargo. An association (the defendants), also in the business of owning cargo ships,
sent more ships down to the port and reduced their freights so low that the plaintiffs
were unable to make a profit. They further threatened to dismiss any agents who loaded
the plaintiff’s ships. The plaintiff brought action alleging a conspiracy to injury and
requested damages.

Issue
Whether the defendant’s actions were unlawful and deemed an indictable offence by way
of a conspiracy.

What was held?

The defendants had acted in an effort to protect their own profits and trade which was
considered to be a lawful objective. No unlawful acts had taken place to warrant any
wrongdoing, so therefore the plaintiffs had no cause of action. To prove that a conspiracy
constituting an indictable offence occurred, a “matter contrary to law” would have to be
shown to have occurred. Lord Halsbury found it impossible to suggest that there had
been any malicious intention to injure rival traders, except in the sense that they
intended their competitors to withdraw from trade. The defendant’s actions were
therefore considered to be actions taken to support their own business interests. Further,
unlawful acts would have to involve obstruction, violence, interference or molestation to
meet the definition. None of those occurred. The appeal was upheld and no cause of
action was available for the plaintiffs.

In Bradford corporation v. pickles, the House of Lords went a step further and
held that even if the harm to the plaintiff has been caused maliciously, no action can lie
for the same unless the plaintiff can prove that he has suffered injury.Defendant owned
land containing underground streams which fed plaintiffs waterworks. Defendant began
to sink shafts for the alleged purpose of draining certain beds on stone the effects of
which were to seriously affect water supplies to the plaintiff's operations. plaintiff alleged
that the Defendant was not acting in good faith but to compel them to purchase his
land.issue here was Can a use of property which would be legal if due to a proper motive
become illegal because it is prompted by a motive which is malicious?

Is held by the house of lords that the defendant was not liable lord mcnaughton in such a
case motives are immaterial it is the act not the motive for the act that must be regarded
as the act apart from the motive gives rise to damage without legal injury the motorway
however reprehensible it may be will not supply that element.
It was ruled that the defendant is not liable, because the defendant's act was not wrongful
as it had not violated any legal right of the plaintiff (Corporation of Bradford). The court
observed that the defendant’s act or conduct was unnecessary but no action lay against him
as he had not infringed any right of the plaintiff.

In Quinn v. Leathem (1901) AC 495, 539:70 LJPS 6; it was ruled that competition was no
ground for action whatever damage it may cause, provided nobody’s legal rights are
infringed. This judgement is the guiding principle for the cases related to losses suffered by
the plaintiff due to increased competition because of the defendant’s act(s).

Chasemore v/s Richards (1859) 7 HLC 349:

Plaintiff (a landowner as well as mill owner) was running a mill on his own land and for this
purpose he was using the water of the stream for a long time (about six years). The defendant
dug an extensive well in his own land with the aim of supplying water to the inhabitants of
district. Consequently, thereby, the defendant’s actions cut off the underground water supply
of stream because percolation of the water resulted in gathering of the water in the well of
the defendant. The quantity of water of stream was reduced and the mill was closed for non-
availability of water as the mill owner was not able to get the required amount of water (from
his own well). Plaintiff sued deft for damage. It was ruled that defendant was not liable
because of the principle of damnum sine injuria. The defendant’s actions did not result
violation of any legal right of the plaintiff, although the plaintiff suffered actual loss in
money.

The defendant’s actions were lawful as he was entitled to use his land in whichever way he
wanted and he did not infringe any right of the plaintiff.
Butt v. Imperial Gas Co. (1878) LR 2 Ch App 158:
The plaintiff (Butt) carried on his business in a shop which had a board to indicate the
materials in which he dealt. The defendant (Imperial Gas Company), by the virtue of its
statutory authority, erected a gasometer outside the plaintiff’s shop. And, the gasometer was
erected and put up in such a way that it obstructed the view of the plaintiff’s premises. The
plaintiff brought an action to restrain, by injunction, the erection of gasometer. The plaintiff
contended that the actions of the Imperial gas Co. had led him to suffer legal damage and
he was entitled to the injunction. It was ruled that injunction cannot be granted for the injury
complained of by the plaintiff.

the test to know whether the defendant should or should not be liable is not whether
the plaintiff has suffered loss or not but the real test is whether any lawful right vested
in the plaintiff has been violated or not.

The essential remedy for tort is an action for damages. But there are other remedies also:
1)Injunction may be obtained in addition to damages, in certain cases of wrongs.
2)Specific restitution of a chattel may be claimed in an action for the detention of chattel.
3)In cases of dispossession of land, the plaintiff can also claim recovery of his land.
But, primarily, it is the right to damages that brings certain wrongful acts under the
ambit of the law of torts.

The law of torts is said to be a development of the maxim “ubi jus ibi remedium”, which
roughly means that “for every wrong, the law provides a remedy”. But, it does not mean
that there is a remedy for each and every wrong. There are many moral and political
wrongs which do not have any legal remedy. For example, there is no remedy for the
beach of a solemn promise not under seal and which is made without consideration. The
maxim intends to convey the fact that legal wrong and legal remedy are correlative
terms. Therefore, it can be said that the correct principle is that wherever a man has a
right, the law should provide a remedy, as observed in Letang v. Cooper (1965) 1QB 232.
Furthermore, it was laid down in Abbott v. Sullivan (1952) 1 KB 189 that the absence of a
remedy is evidence but is not conclusive that no right exists.

Mental element in tortious liability

Mens rea or guilty minds are essential elements in most forms of crime. it is not so easy
to make any such generalization about liability in torts

Fault when relevant

Many of the branches of tots like assault, battery false imprisonment, deceit ,malicious
prosecution and conspiracy ,the state of mind of a person is relevant to a certain his
liability. We see whether a particular wrong act was done intentionally or maliciously.
Sometimes we may compare the conduct of the defendant with that of a reasonable man
and make him liable only if his conduct falls below the standard expected of a reasonable
man. For example when the circumstances demand care and a person fails to perform
the duty to take care he is liable for the tort of negligence.

National coal board v JE Evan and co

Holmes v mather (1875)

(Check defences)

The defence of necessity can be pleaded when the defendants act is not activated by a
wrongful intent but he is compelled by the circumstances to cause some smaller harm
intentionally in order to prevent a greater evil

Liability without fault

There are certain areas where the mental element is quite relevant and the liability arises
even without any wrong full intention or negligence on the part of the defendant. In such
cases innocent innocence of the defendant or an honest mistake on his part is no defence
tort of conversion is an example of the same.

Consolidated co. V. Curtis

Cassidy v daily mirror newspaper

Facts
The claimant was known as the lawfully wedded wife of a famous race-horse owner and
former General of the Mexican Army. The claimant and her husband lived separately but
he often visited her at her workplace. The defendant newspaper published a photograph
of the claimant’s husband with a woman labelled as Miss X, to whom – as alleged by the
attached article – he was engaged.

Issue
The claimant argued that the publication caused damage to her in that it was intended to
imply that her husband was living with her immorally. In a reasonable person’s mind,
would the statement appear defamatory?

Held
The Court of Appeal held, affirming the lower court’s decision, that the publication in
question was capable of constituting defamation. It found that the jury was right to find
that the publication made the reasonably minded person believe that the claimant’s
moral character was questionable.

Rylands v Fletcher

Fletcher employed contractors to build a reservoir, playing no active role in its construction.
When the contractors discovered a series of old coal shafts improperly filled with debris, they
chose to continue work rather than properly blocking them up.The result was that Fletcher's
reservoir burst and flooded a neighbouring mine, run by Rylands, causing £937 worth of
damage. Rylands filed a suit seeking damages for the losses suffered.

The court observed, "the person who for his own purposes brings on his lands and collects
and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if
he does not do so, is prima facie answerable for all the damage which is the natural
consequence of its escape". Prior to this case, English courts had not based their decisions in
similar cases on strict liability, and had focused on the intention behind the actions rather
than the nature of the actions themselves. In contrast, in Rylands v. Fletcher, the court
imposed strict liability on those found detrimental in such a fashion without having to prove
a duty of care or negligence.

Malice in law

Malice simply means a wrongful intention which is presumed in case of an unlawful act
rather than a bad motive or feeling ill will.for example in an action for defamation it may
be mentioned that the alleged statement was published falsely and maliciously here it
simply means that the statement is false and is also made without lawful justification

Shearer v shield

Person who inflicts injury upon another in contravention of the law is not allowed to say
that he did so with an innocent mind he is taken to know the law and he must act within
the law.

Malice in fact

When the defendant does a wrongful act with a feeling of spite vengeance aur ill will the
act is said to be done 'maliciously'
Motive means an ulterior reason for the conduct it is different from intention which
relates to the wrongful act itself. For example the motive for theft may be to buy food but
the immediate intention of a person may be to commit theft.

How far is the motto of a person relevant in determining his liability in tort?

As a general rule, motive is not relevant to determine a person's liability in the law of
torts. a wrongful act does not become wrongful because of a mad motive or malice

South Wales miners federation v Glamorgan coal company.

Allen v flood

Facts
Flood and Walter was a shipwright employed on a ship, liable to be discharged at any
time. Fellow workers objected to their employment as they had worked for a rival
employer. Allen was a trade union representative for the other employees on the ship
and approached the employers, telling them that if they did not discharge Flood and
Walter, the other employees would strike. The employers consequently discharged Flood
and Walter and refused to employ them again, where they otherwise would. Flood and
Walter brought action for maliciously inducing a breach of contract.

Issue
Whether the judge erred in finding that Allen had induced a procurement of contract
unlawfully.

What was held?

The decision was reversed, finding that Allen had not violated any legal rights of Flood
and Walter. There was no legal right for them to be employed by employer and Allen had
not carried out an unlawful act and had not used any unlawful means, in procuring the
employee’s dismissal. Allen was found to have made a representation to the employers of
what would happen if they continued to employee Flood and Walter. He relied the events
of what he believed would happen and the employers believed him. This was not
considered to be an obstruction or disturbance of any right: it was not the procurement
of the violation of any right. Allen’s conduct was not actionable, however malicious or
bad his motive might be. The employees were not entitled to damages and no
interference requiring remedy was found to exist.

Town area committee v. Prabhu Dayal

Facts
The plaintiff was made certain construction without complying with the provisions of the
U.P municipalities act .the defendants demolished the construction the plaintiff sued the
defendants contending that the demolition was illegal and some of the officers of the
town area committee for acting maliciously getting the construction demolished.
Issue
Was the municipality carat by demolishing the building.

What was held?

The Allahabad High court held that the demolition of a building illegally constructed was
perfectly correct if the court did not investigate the question whether the Act was done
maliciously or not as the same was considered to be irrelevant. In the words of hari
swaroop J: the plaintiff can get compensation only if it proves to have suffered injury
because of an illegal act of the defendant and not otherwise. Malice does not enter the
scene at all.

Exceptions to the rule when malice becomes relevant

1) When the act is otherwise unlawful and wrongful intention can be gathered from the
circumstances of the case

Balak glass emporium v United India insurance co. limited

Multi storeyed building the water from a purse story under the control of a defendant
escaped occupied by the plaintiff there was evidence of ill will between the plaintiff and
defendant was found that not only the top of the upper floor was left fully open but the
outlet of the tank was also closed there was only one inference that the said act was done
by defendant weather on full intention and hence the plaintiff was held entitled to get
damages for the same.

2) the talks of deceit, conspiracy, malicious prosecution and injurious also the essentials
to be proved by the plaintiff is malice on the part of the defendant.

3) cases of defamation qualified privilege of a accommodate is created as a difference

motive becomes irrelevant the defence of qualified privilege is available as a publication
was made in good faith the presence of malice or evil motive negates good fate and the
defendant cannot avoid his liability in such a case.

4) causing of personal discomfort buy an unlawful motive return and otherwise lawfully
acting to nuisance

Christine v Davey

Facts:
The claimant was a music teacher. The claimant gave lessons at home and from time to
time held noisy parties. The neighbour (the defendant) was disturbed by the claimant
playing music. The defendant asked her to keep the noise down. However, the claimant
did not stop playing the music in her house and in retaliation, the defendant started
banging on the door and shouting. Moreover, the defendant retaliated further by blowing
whistles, banging trays and trying to disturb the music.As a result, the claimant
complained of nuisance when his neighbour retaliated.
Issues:
Whether there is a nuisance present in Christie v Davey and if the defendant was liable
for such nuisance complained of? Did the defendant act maliciously?

Held:

In conclusion, the neighbour was liable for nuisance because he acted by malice. The
defendant’s actions were deliberate and unreasonable.The motives of the party whose
actions are alleged to constitute an actionable nuisance are relevant to the question
whether there is such a nuisance. Therefore, an injunction was granted.

5) evil motive result in aggravation of damages

You'll

Chapter-2
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, avoid his liability by taking the plea of defence. Following
are the general defences.
Volenti non fit injuria or consent
It is a latin term which means "to one who is willing,no harm is done." When a person
consents to the infliction of some harm upon himself, he has no remedy for that in tort.
If a person engages in an event accepting totally aware of the risks inherent in that event
such person cannot later complain of, seek compensation for an injury suffered during
the event. No man can enforce a right which he has voluntarily waived or abandoned.
Consent to suffer the harm may be expressly or impliedly.

For example no action can be bought by a person who agrees to the publication of a
defamatory of himself.

Chapman v Lord Ellesmere

Facts

Holmes v Mather ( also inevitable accident)

a pair of horses were being driven by the groom of the defendant on a public highway. On
account of barking at a dog, the horses started running very fast. The groom made best possible
efforts to control them but failed. The horses knocked down the plaintiff who was seriously
injured
It was held to be an inevitable accident and the defendant was not liable.The driver is absolutely
free from all blame in the matter, not only does he not do anything wrong but he endeavours to
do what is the best to be done under the circumstances. The misfortune happens through the
horses being so startled by the barking of a dog that they run away with the groom and the
defendant, who is sitting beside him.

Halls v brooklands auto-racing club

Facts
D were the owners of a racing track for motor cars.Spectators were admitted on payment to
view the races, and stands were provided in which they could do this in safety, but many
persons preferred to stand along and outside the railing.
On the day in question two competing cars in a long distance race on this track were
involved in a collision on the finishing straight, with one of the cars being flung into the air
and over the kerb and railing, hitting a group of spectators and killing two of them. No such
accident had occurred previously in the history of the course, which had been running races
for over 20 years. D was sued in negligence by an injured spectator, who alleged that the
premises had not been made adequately safe for spectators, nor had adequate warning of
the dangers been given.

Issue

This case raised the question of whether those who permit their premises to be used for an
event which was known to carry dangers to spectators, such as high-speed motor racing,
were subject to a more extensive duty-of-care than those whose premises were used for less
dangerous activities.

Held

It was the duty of the defendants to see that the track was as free from danger as
reasonable care and skill could make it, but they were under no duty to guard against risks
that were not reasonably foreseeable, or which were innate to the activity of which C was a
spectator. As no accident of this nature had previously occurred it could not be said to be
reasonably foreseeable, and D was not required to mitigate the risk of an event that no
amount of due diligence would have revealed.

For the defence of consent to be available , the act of causing the harm must not go beyond
the limit of what has been consented. For example if a surgeon negligently performed an
operation, he cannot avoid the liability by pleading the defence.
the plaintiff should have complete knowledge of the full nature and extent of risk involved
before giving consent

Wooldridge v Sumner [1963] 2 QB 43

Facts
The claimant was a photographer working at a horse show. He was situated within the ring
where the horse show took place (rather than behind the spectator barriers) when one of the
horses galloped towards him at a significant speed after the rider lost control of it, knocking
him down. The claimant sued the defendant in the tort of negligence.

Issue
The issue was whether the defence applied in this case, given that the claimant was within
the ring rather than behind the protective barriers.

Held
The High Court held that for the defence of volenti non fit injuria to apply, it was not enough
that the claimant consented to a generic risk of injury. Rather, the claimant had to consent to
the lack of reasonable care which produced the risk. This requires the claimant to have
complete knowledge and understanding of the extent and nature of the risk.

In the case sporting events, however, spectators can be taken to know of and consent to the
risk of the sportsman making errors of judgement or skill, given the fast-paced nature of the
activity, unless the sportsman was acting with deliberate or reckless disregard for the
spectator’s safety.In this case, the sportsman merely made an error of judgement, and the
claimant had chosen to position himself close enough to risk such errors affecting him.

Padmavati v dugganaik (also inevitable accident)

two strangers took lift in a jeep. Shortly afterwards, one of the bolts fixing the right front
wheel of the jeep to the axle gave way and the wheel flew away from the axle. The jeep was
toppled, the two strangers got serious injuries resulting in the death of one of them.
It was found that it was a case of sheer accident, as there was no evidence to show that the
defect was a patent one and could have been detected by periodical check up. The
defendant, i.e., the driver of the jeep and his master, were, therefore, held not liable.

Thomas v Quartermaine

There, the plaintiff, an employee in the defendant's brewery, was trying to remove a lid from
a boiling vat. The lid was stuck and by the plaintiff's extra pull to it, it came off suddenly and
the plaintiff fell back into the cooling vat which contained scalding liquid. The plaintiff was
severely injured. The majority of the Court of Appeal held that the defendant was not liable
because the danger was visible and the plaintiff appreciated and voluntarily encountered the
same.

in Ilott v Wilkes dispersion new about the presence of spring guns on a land, could not
recover damages when he was shot by a spring gun Similarly, damage caused to a
trespasser by broken glass or spikes on a wall or a fierce dog is not actionable.(sarch v
Blackburn)
If I go and watch a fire-workmaker for my own amusement, and the shop is blown up, it
seems I shall have no cause of action even if he was handling his material unskillfully.

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 under some mistake impression, such consent does not serve as a
good defence. Moreover, the act done by the defendant must be the same for which the
consent is given. Thus, if you invite some person to your house, you cannot sue him for
trespass when he enters your premises. But, if the visitor goes to a place for which no
consent is given, he will be liable for trespass.

Laxmi Rajan v malar hospital

Facts
The complainant, a married woman, aged 40 years, noticed development of a painful lump in
her breast. The lump had no effect on her uterus, but during surgery, her uterus was removed
without any justification.

Issue
Can volenti non fit injuria be applied in the case?
Held
It was held that the opposite party, i.e., the hospital was liable for negligence in service. It
was also held that the patient's consent for the operation did not imply her consent to the
removal of the uterus.

In another instance if a servant was compelled by the master to do a certain task despite his
protests and if he is injured by doing it the master cannot take the defence of consent with
the consent was not free. There should be no undue influence, misrepresentation or fraud
involved while taking this defence.
When a person is incapable of giving his consent because of his insanity on minority
consent of such persons parent or guardian is sufficient. The child protested against the
operation.

Consent obtained by fraud

For the defence to be applicable the consent of retained should be free e and not be
acquired by any fraudulent means.

R. v Williams

Facts
The defendant was a singing coach. He told one of his pupils that he was performing an act
to open her air passages to improve her singing. In fact he was having sexual intercourse
with her.

Issue
Was the assent obtained by the defendant free? Is the defence of volenti non fit injuria
applicable here.

Held
It was held that her consent was vitiated by fraud as to the nature and quality of the act. He
was held guilty of rape.

Consent not obtained under compulsion

Consent given under circumstances when the person does not have freedom of choice is not
the proper consent.. A person may be compelled by some situation to knowingly undertake
some risky work which, if he had a free choice, he would not have undertaken. That situation
generally arises in master-servant relationships.
The servant may sometimes be faced with the situation of either accepting the risky work or
losing the job. If he agrees to the first alternative, it does not necessarily imply that he has
agreed to suffer the consequences of the risky job which he has undertaken.
 Thus, "a man cannot be said to be truly willing unless he is in a position to choose freely.
and freedom of choice predicates, not only full knowledge of the circumstances on which the
exercise of choice is conditional, so that he may be able to choose wisely, but the absence
of any feeling of constraint so that nothing shall interfere with the freedom of his will".

Bowater v rowley Regis corporation

Facts
The plaintiff was a carter employed to go around the streets and collect road sweepings. For
this purpose, he was provided with a horse and a cart by his employer - a municipal
corporation. The plaintiff was ordered by his foreman to take out a horse, for which it was
known to both of them that it was unruly and had run away on two occasions when another
employee was working with him. The carter protested, but he was told that this was an order
of the borough surveyor and eventually agreed to take out the horse in question. A few
weeks later, the horse ran away and the plaintiff was thrown from the cart and suffered
personal injuries. The plaintiff brought an action against the municipal corporation for failure
to provide him with a horse that was safe and suitable for the work he had to perform

Issue
Is the defendant guilty of negligence?
Is there contributory negligence?
If the defendant was negligent can the defense of consent be used?

Held
The defendant was guilty but the said defense was not available in this case as it does not
apply to occupations that are not inherently dangerous such as working in an explosive
factory or as a horse breaker.

To rely on the defence of volenti non fit injuria, the employer must show that the employee
undertook that the risk ought to be on him and that he was a volunteer in the fullest sense.

In Imperial chemical industries Ltd v shatwell

Two brothers who were qualified shot-firers sustained injuries at their employer's quarries.
The employees had been short of wire to test a circuit for firing explosives from a sheltered
distance. The brothers disobeyed their employer's instructions and mandatory regulations
and tested the electric circuit with the insufficient wiring, causing them to sustain injuries. In
this case the employer could rely on the defense of consent due to the sheer negligence of
the brothers.

if a workman adopts a risky method of work, not because of any compulsion of his employer
but of his own free will, he can be met with the defence of volenti non fit injuria.

Mere knowledge does not imply consent

for the magazine to be applicable tow points have to be proved-

(i) The plaintiff knew that the risk is there.

(ii) He, knowing the same, agreed to suffer the harm.

If only the first of these points is present, i.e., there is only the knowledge of the risk, it is no
defence because the maxim is volenti non fit injuria. Merely because the plaintiff knows of
the harm does not imply that he assents to suffer it.

in Thomas v Quarter maine Bowen LJ said It is undeniably true that the knowledge of the
injured person which prevents him from claiming negligence against the occupier would in
such circumstances, constitute knowledge which inevitably leads to the inference that the
entire rik was voluntarily incurred .without knowledge of the risk their perception of the
presence of danger.

In such cases, the defendant would not discharge his legal responsibility by merely
impacting the claimant with knowledge of a danger that would not occur at all except for a
violation of duty on his own part.

where the danger is obvious and the risk appreciated, and where the injured person,
understanding and appreciating both risk and danger, willingly encounters them, knowledge
is not conclusive defence in itself.

Goddard LJ said When a man occupation is not one of a nature inherently dangerous but
who is asked for required to Undertaker risky operation is entitled to such defence. It is not
enough to show that the defendant would not have undertaken the given work if he was
given a choice. It must be shown that he agreed that what risk there was should lie on him.

In Smith v. Baker the plaintiff was a workman employed by the defendants on working a drill
for the purpose of cutting a rock. 'By the help of a crane, stones were being conveyed from
one side to the other, and each time when the stones were conveyed, the crane passed from
over the plaintiff's head. While he was busy in his work, a stone fell from the crane and
injured him. The employers were negligent in not warning him at the moment of a recurring
danger, although the plaintiff had been generally aware of the risk. It was held by the House
of Lords that as there was mere knowledge of risk without the assumption of it, the maxim
volenti non fit injuria did not apply.
and the defendants were liable.

Lord Herschell said Where a person undertakes to do inherently dangerous, given that
reasonable care has been taken to make it as little dangerous as possible, he undoubtedly
willingly submits to the risks that inevitably accompany him, and may not, if he suffers, be
allowed to claim that he has been wronged, even if the cause he suffered may give others a
right to be wronged.

the question which has most frequently to be considered is not whether you voluntarily and
rashly exposed insult to injury but whether he agreed that if injury should be fall himthe race
was to be his and not his master's.

In Dann v. Hamilton, a lady, knowing that the driver of the car was unk chose to travel in it
instead of an omnibus. Due to the driver's negligent driving an accident was caused resulting
in the death of the driver himself and injuries to the lady passenger. In an action by the lady
passenger for such queries against the representatives of the driver, the defence of volenti
non fit urea was pleaded but the same was rejected and the lady was held entitled to claim
compensation.

The reason why the defence of volenti non fit injuria was considered to be not applicable
was that the degree of intoxication of the driver was not to such an extent that taking a lift
could be deemed to be consenting to an obvious danger.

The above decision has been criticized on the ground that even if the doctrine of volenti did
not apply the defence of contributory negligence would be available as the plaintiff knew that
the driver had been negligent in drinking and driving.

Negligent of the defendant

For the defence to be available, it is further necessary that the act de

must be the same to which the consent has been given. Thus, if while plav hockey, I am
injured while the game is being lawfully played, I can't clai anything from any other player
because I am deemed to have consented to incidents of the game I have gone to play. In
case, another player negligence or deliberately hit me with a stick, I can definitely make him
liable and 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.To what I consented was not his negligence The point is illustrated by Slater v.
Clay Cross Co. Ltd.

the plaintift 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 cupied by the
defendants. The company knew that the tunnel was used by members of the public and had
instructed its drivers to whistle and slow wn when entering the tunnel.

Issue- was the driver negligent

Can the defense of consent be used by the defendant.

Held
The accident had occurred because of the driverer's negligence in not observing those
instructions.the defendant were liable. Although it may be said that the lady voluntarily took
the risk of danger from the running of the railway in the ordinary and accustomed way
nevertheless she did not take the risk of negligence by the driver her knowledge of the
danger is a factor in contributory negligence but is not a bar to the action.
'knowledge of the danger is only a bar where the party is free to act on it so that the injury
can be said to be due solely to his own fault

Limitation to the scope of doctrine

The scope of application of the doctrine of volenti non fit injuria has been curtailed in
1.Rescue cases, and
2 by the Unfair Contract Terms Act. 1977 (England).

In spite of the fact that the plaintiff has consented to suffer the harm, he still be entitled to his
action against the defendant in these exexceptional

-Rescue Cases

somebody from an imminent danger created by the wrongful act of thedefendant. he cannot
be met with the defence of volenti non fit injuria.

Haynes v. Harwood

Facts
The plaintiff was a police constable on duty inside a police station, located in a busy street,
often attended by many people, including children. The defendants owned a two-horse van
which was left unattended by its driver in the same street. The driver had put a chain on one
of the wheels of the van that was subsequently broken. For some reason, supposedly
because a stone was thrown at the horses, they bolted along the busy street alongside with
the van. The police constable saw them from the police station, got out and managed to stop
them but sustained injuries, in respect of which he claimed damages.

Issue
Does the maxim volenti non fit injuria prevent on duty police officers from claiming any
damages for injury sustained as a consequence of acting whilst being aware of the risk that
this involved.

Held
Defendants are guilty of negligence by virtue of leaving the horses unattended in a busy
street.The police are under general duty to intervene to protect life and property and
therefore, the act of the police constable and his injuries were a direct consequence of the
defendant's negligence. The maxim volenti non fit injuria does not prevent the police
constable from claiming damages for an injury sustained as he did not voluntary agree to
take the risk but did it pursuant to his official duty.

the doctrine of the assumption of risk does not apply where the plaintiff has, under an
exigency caused by the defendant is wrongful misconduct, consciously and deliberately
faced a risk, even of death, to rescue another from imminent danger of personal reid injury
or death, whether the person endangered is one to whom he owes a duty of protection, as a
member of his family, or is a mere stranger to whom he owes no such special duty."

Wagner v. International Railway is an American authority on the point. There, a railway

passenger, was thrown out of a running railway car due to the negligence of the railway
company. When the car stopped, his companion got down and went back to search for his
friend. There was darkness, the rescuer missed his footing and fell down from the bridge
resulting in injuries to him. He brought an action against the railway company. It was held
that it being a case of rescue, the railway company was liable.
Baker v TE Hopkins & Son is another illustration on the point in the case due to the
employer's negligence, a well was filled with poisonous fumes of a peteol diven pump and
two of his workmen were overcome by fun Dr. Baker was called but he was told not to enter
the well in view of the involved to In spite of that. Dr. Baker preferred to go into the well with
a v an attempi to help the two workmen already inside the well. He a rope around himself
and went inside, while two women held the rope at the top The doctor himself was overcome
by the fumes. He was pulled from the well and taken to the hospital. He, however, died on
the way to the hospital The two workmen inside the well had already died. The doctor's
widow sued the workmen's employers to claim compensation for her husband's death. The
defendants pleaded volenti non fit injuria.

Held
The doctors actions were not a novus actus interveniens. It was foreseeable that if a
defendant by his negligence places another in peril that someone may come to his rescue
and the doctor's actions were not unreasonable in the circumstances. The Claimant's action
was not defeated by volenti non fit injuria. He was and as such his actions did not count as
freely and voluntarily accepting the risk.

Plaintiff the wrongdoer

Under the law of contract, one of the principles is that no court will aid a person who found
his cause of action upon an immoral or an illegal act. The maxim is "Ex turpi causa non oritur
actio" which means, from an immoral cause no action arises. It means that if the basis of the
action of the plaintiff is an unlawful contract, he will not, in general, succeed to his action .

It is doubtful whether the defendant can take such a defence under the Law of torts 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 rinciple seems to be that the mere fact that
the plaintiff was a wrongdoer oes 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. Thus, if a trespasser enters my
Premises, I cannot inflict unnecessary injuries upon him and if any such injury caused, the
"trespasser is liable to an action for the injury which he does ut he does not forfeit his right of
an action for injury sustained."

In Bird v. Holbrook, the plaintiff, a trespasser over the defendant's land was entitled to aim
compensation for injury caused by a spring gun set by the defendant, without notice, in his
garden.

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 is 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 his own act is the determining cause of the harm suffered by him, he has of cause of
action.

if the plaintiff's being a wrongdoer is an act quite ndependent of the harm caused to him, the
defendant cannot plead that the plaintiff himself is a wrongdoer. So, "If A and B are
proceeding to the per which they intend burglariously to enter, and before they enter them.
A's pocket and steals his watch, I cannot prevail on myself to believe could not sue in tort
(provided he had first prosecuted B for larceny) The is totally unconnected with the burglary.

We have seen above that merely because the plaintiff is a wrongdoer 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 also and that is that of contributory
negligence. In such case, 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.

Inevitable accident

Accident means an unexpected injury and if the same could not ha been foreseen and
avoided, in spite of reasonable care on the part of defendant, it is inevitable accident.
According to Pollock, "It does not me absolutely inevitable, but it means not avoidable by
any such precautions asa reasonable man, doing such an act then and there, could be
expected to take It is therefore, a good defence if the defendant can show that he neither
intended to injure the plaintiff nor could he avoid the injury by taking reasonable care.

Stanely v Powell

the plaintiff and the defendant, who were members of a shooting party, went for pheasant
shooting. The defendant fired at the pheasant, but the shot from his gun glanced off an oak
tree and injured the plaintiff.

It was held that injury was accidental and therefore the defence of inevitable accident was
available. The defendant did not intend to hurt the plaintiff. What ever happened was
unavoidable.

In Assam State Coop, etc. Federation Ltd. v. Smt. Anubha Sinha, the premises
belonging to the plaintiff were let out to the defendant. The defendant i.e. the tenant
requested the landlord to repair the electric wiring, which was detective, but the landlord
failed to repair the same. There occurred an accidental fire in those premises probably due
to short circuit of electric connection.

There was found to be no negligence on the part of the tenant. In an action by the landlord
to claim compensation from the tenant, it was held that since it was a case of inevitable
accident, the tenant could not be made liable for the same.

Brown v Kendall
the plaintiff's and the defendant's dogs were fighting. While the defendant was trying to
separate them, he accidentally hit the plaintiff in his eye, who was standing nearby. The
injury to the plaintiff was held to be the result of pure accident, for which no action could lie.

accidental damage to the property has been considered not actionable in nitroglycerin
case and National coal boards v Evans.
Hindi nitroglycerin case the defendant form of carriers were given a wooden case for being
carried from one place to another the contents of the box is not known finding some LIC it is
in the box the defendant took the box to the office building to examine it while the box was
being opened nitroglycerin in the box exploded and the office building belonging to the
plaintiff was damaged
It was held that since the defendants good not reasonably suspect that the box contained
nitroglycerin they were not liable for the accident caused.

The defence of inevitable accident can only be pleaded when the event unforeseeable and
consequences are unavoidable in spite of reasonable precautions. Even if the event it is like
heavy rain and flood but if the same can be anticipated and guarded against the
consequences can be avoided by taking reasonable precautionsthe defence cannot be
pleaded in such case.