LITERATURE REVIEW

2.1 TORTIOUS LIABILITY

Submitted to

DR. RAHUL SANGAONKAR

(ASSISTANT PROFESSOR OF LAW)
MISS. TEENA SUNDARBANSHI
(ASSISTANT PROFESSOR OF LAW)

Submitted by

SHRUSHTI TAORI

UID: UGJ21-49

Semester II, Year 1

B.A.LL.B.(Honours in Adjudication and Justicing)

Academic Session: 2021-22

May, 2022

MAHARASHTRA NATIONAL LAW UNIVERSITY, NAGPUR

 HAYNES V. HARWOOD [1936] 1 KB 146

1. Case Details

Name of the Case: Haynes v. Harwood

Court: Court of Appeal of England and Wales

Judgment Date : 1935

Citations: [1936] 1 KB 146

Coram Sitting: Lord Greer, Lord Maugham, and Lord Roche LJJ.

2. Facts of the Case -

The defendants Harwood was the owner of a two horse van, which was being driven by his
servant, a man named Bird on August 24 1932. He was collecting a delivery receipt on
Paradise Street and in doing so left his horse unattended on the left side of the street. The
carriage was later found with a broken chain, which the servant claimed to have put. It was a
crowded street, filled with people and a lot of children due to the proximity of several
schools. It is speculated that because of some boys throwing stones at the horses, they bolted
down the street. They went uninterrupted for a few yards, until they passed a police station,
the in-charge being the plaintiff Haynes, a policeman. On seeing the runaway horse bolting,
and a woman and some children right in the path of the horses in grave danger, he tried to
stop the horses and eventually succeeded in preventing any loss of life and limb after
dragging along with the horses for 15 yards, but one of the horses slipped and fell on him
causing severe injuries for which he sued for damages.

3. Procedural History -
The plaintiff claimed damages for the injuries sustained through the Kings Bench
headed by Finlay J. in 1935. The King Bench ruled in favour of the plaintiff. The
defendant thus further appealed in a Court of Appeal with the bench consisting of
Greer, Maugham and Roche , but his appeal was dismissed.
 4. Issues Before Court -

i) Whether there was negligence on part of the defendant ?

ii) Whether the defendant can invoke Novus Actus Interveniens as a defence.

iii) Whether the defendant can invoke Volenti Non Fit Injuria as a defence.

5. Judgement and Ratio Decidendi -

The court decided that the defendant was negligent in leaving the horse
unattended on the street. The court clarified that just leaving a horse unattended on the street
does not amount to negligence, however in this case, the circumstances proved such that such
an act would amount to negligence. The defendant’s servant had been to the street on several
occasions before and thus was familiar with the crowd at that time of the day. There was a
school nearby and thus the presence of mischievous children could have been anticipated.
Leaving two horses unattended in such a situation, where the horses may be vulnerable to the
play tricks of mischievous children was beyond reasonable care and thus the defendant was
held negligent.
The accident was a natural and a probable consequence of the negligent act.
There was a novus actus interveniens- that is, the throwing of stones by the boy. However,
this would not have happened if the horses were supervised by a driver. The defendant cannot
escape liability on the ground that he did not do the wrong, but that it was done by a
mischievous boy, as the situation could have been easily avoided with proper caution. It was
further held that there was no absolute rule that an intervening act by some third person who
is not the defendant is in itself enough to break the chain of causation between the wrongful
act and the damage and injury sustained by the plaintiff.
The bench also denied the defence of volenti non fit injuria. The bench
pointed out that the plaintiff did not agree to bear the risk in question. In the scenario in
question, he noticed that if he did not act immediately, a woman and a number of children
would be in grave danger. Thus, he acted in a morally and legally bound way. He knew
nothing of what was going to happen, and he was not provided with the option of a choice or
consent that is required by the doctrine of volenti non fit injuria. It was also highlighted that a
policeman has the general obligation to preserve life and property and has a discretionary
duty to prevent an accident from happening.
 6. Final Decision -

The court held that the defendant was liable, and his appeal was dismissed. The defendant
was thus held negligent for leaving the horses unattended on a packed street. The defence of
Novus actus interveniens did not stand as the negligence of the defendant ultimately caused
the accident regardless of the intervention. The defence of volenti non fit injuria was also
denied as the plaintiff never consented to the injuries sustained by him. Considering the
different perspectives, the court directed the defendant to pay damages to the plaintiff.

7. Concepts Involved in the Case -

a. Negligence can be an action or an omission to act in a situation where the defendant
owed a certain duty of care to the plaintiff. The act or the omission must have caused
an injury to the plaintiff as a result of the breach of duty by the defendant. The injury
can be a bodily harm or an injury to the property. The duty of care is assumed from
the perspective of a reasonable man
b. ‘Novus Actus Interveniens’ is a Latin term which means there was an action which
happened to break the chain of causation. This action takes place after the act of the
defendant and before the plaintiff suffers the injuries and has some link between the
two. If proved, it waves off the liability from the defendant to pay the damages.
Whether the act was severe enough to be termed as Novus actus interveniens has to be
examined depending on the circumstances of each case.
c. ‘Volenti non fit injuria’ is a defence in tort which states that if a person willingly
places himself in danger then they cannot claim damages for their injury. The
essentials for this to be applicable are that the plaintiff must be aware about the harm
and he must also agree to the risk of the harm, mere knowledge and no consent to the
harm does not entitle the defendant to use this defence .

8. Critical Analysis and Conclusion -

“Negligence is the failure to use reasonable care or doing something which a reasonably
prudent person would not do.”
The defendants are guilty of negligence under the virtue of leaving the horses unattended in a
busy street. The defendant in the first place owed a duty of care to his neighbour’s, which he
breached as and when the horse carriage was left unattended and untied. The resultant
damage was caused to the plaintiff when he got injured while trying to save the woman and
the children so endangered. Also, the defendant could anticipate the damage that could have
incurred if some mischievous act would have been done on the horse. Hence, the Court held
that there was negligence on the part of the defendant. Presenting his side as against the
plaintiff’s defence, the defendant argued that volenti non-fit Injuria could be applied to justify
his stand because the police constable willingly involved himself in an act which would
inevitably have caused some injuries. The Court, in turn, held that there was evident
Negligence on the part of the defendant, for the plaintiff owed a general duty to the public
and hence the principle of volenti non-fit Injuria would not apply. The Court determined
whether the plaintiff had acted reasonably with the context of Brandon v. Osborne, Garrett &
Co. Ltd. It should be noted that Greer L.J. went further than Finlay J. His decision seems to
suggest that a policeman or anyone, and still more a policeman, has a general duty to the
public to preserve life and property.
******************