General Defences(Module-4)

Synopsis
Introduction
Volenti non fit injuria
a. Consent must be free
b. Consent obtained by Fraud
c. Consent obtained under compulsion
d. Mere knowledge does not imply assent
e. Limitation of the doctrine
 Introduction

 Generally when an action is bought against the

defendant providing the existence of essentials of the
tort ,the defendant will be liable for the same.
 But sometimes the defendant may avoid his liability
by taking up defences that is available under law of
torts.
 For ex- in an action for defamation the defence that
can be taken up is that it is fair comment.
The general defence which is available with regard
to tresspass ,false imprisonment, defamation is
consent
1.Volenti non fit injuria
 When the person consents to the infliction of
some harm upon himself he has no remedy for
that in tort. In case the plaintiff voluntarily agrees
to suffer some harm, he is not allowed to
complain for that and the consent serves as a
good defence against him.
 Plaintiff voluntarily agrees to suffer harm
 No person can enforce a right which he has
waived.
 Such a consent can be implied or expressed
For the defence of consent to be available, the act
causing the harm must not go beyond the limit of
what has been consented. A player in a game of
hockey has no right of action if he is hit while the
game is being lawfully played. But if there is a
delibarate injury caused by another player the defence
of volenti cannot be pleaded.
1.HALL VS BROOKLANDS AUTO RACING
CLUB
2.ILLIOT VS WIKES
HALL VS BROOKLLANDS AUTO
RACING CLUB
The Plaintiff was a spectator at a motor car race
being held at Brooklands on a track owned by the
defendant company.
During the race ,there was a collision between two
cars, one of which was thrown among spectators
,thereby causing injuring the plaintiff
It was held that Plaintiff implied took the risk of
such injury, the danger being inherent in the sport
which any spectator could foresee ,the defendant
was not liable.
ESSENTIALS:
The consent must be free
Consent obtained by fraud
Consent obtained under compulsion
Consent must be free
For the defence to be available it is necessary to show
that the plaintiff’s consent to the act of the defendant
was free.
If consent of plaintiff was obtained by fraud or under
compulsion or under some mistaken impression , such
consent doesn’t serve a good defence.
Moreover the act done by the defendant must be the
same a]for which the consent is given.
CONSENT OBTAINED UNDER COMPULSION
 Consent given under circumstances when the person
have no freedom of choice is not the proper consent.
 When a consent is obtained by compulsion doesn’t
mean that he is ready to take up the risk of the work.
 Thus ,there is no volenti non fit injuria ,when a
servant is complelled to do some work inspite of
protest.
 But if a workman adopts a risky method of work ,not
because of any compulsion of his employer but of
his own free will, he capable to met with the defence
of volenti non fit injuria .
 MERE KNOWLEDGE DOESN’T IMPLY ASSENT
 For the maxim volenti non fit injuria to apply, two points have
to be proved:
i. The plaintiff knew that the risk is there.
ii. He ,knowing the same ,agreed to suffer the harm
 1..Bowater Vs Rowley Regis corporation
 2. Smith vs Baker
If a workman ignores the employers instruction and
contravenes statutory provision thereby causing damage to
himself he can certainly meet the defence of Volenti non fit
injuria
NEGLIGENCE OF THE DEFENDANT
If there is a negligence on the part of the defendant he
cannot raise the plea of volenti non fit injuria
 SLATER VS CLAY CROSS CO LTD
The defendants were held liable as the lady voluntarily took
the risk but nevertheless she took the risk of negligence of the
driver.
LIMITATION OF THE SCOPE OF THE
DOCTRINE
 Rescue cases
Rescue cases form an exception to the application of the
doctrine of Volenti non fit injuria. When the plaintiff
voluntarily encounters a risk to rescue somebody from an
imminent danger created by the wrongful act of the
defendant, he cannot be met with the defence of Volenti
non fit injuria.
 HAYNES V HARWOOD
Difference between Contributory Negligence
and Volenti non fit injuria
1. It is a complete justifiable 1. It is a partial defence.
defence. The defendant is The fault is divided
completely excluded.
2. In “Volenti….”, the
between the plaintiff and
plaintiff knows the risk in the
the defendant.
incident, which he is going to 2. In contributory
face. At the same time, he negligence, both the
takes certain precautionary parties, i.e. the plaintiff
steps for his safety also.
However, if the defendant is
and defendant are
negligent, the plea of negligent.
“volenti….”cannot be helpful
to the defendant.
3. Both the plaintiff and
the defendant know the
nature, risk of the
incident. Generally the
plaintiff invites the risk
voluntarily.
3. Until the incident
occurs, both of them do
not know the incident,
and its nature and risk.
Both of them do not
invite the risk
PLAINTIFF THE WRONG DOER
With regard to the law of contract the status is that if
the plaintiff is a wrong doer or his action is illegal or
immoral the Court will not enter such suit.
 The maxim is Ex turpi causa non ortitur actio which
mean from immoral cause no action arises.
If the basis of the action of the Plaintiff is a unlawful
contract he will not succeed to his action.
Now the question is the same status applicable in
the law of torts?
Can the defendant under the law of tort escape liability
by pleading that at the time of the defendant wrongful
act the Plaintiff was also engaged in doing something
wrongful
The principle seems to be that just the mere fact the
plaintiff was a wrong doer doesn’t disentitle him from
recovering from the defendant.
Bird Vs Holbrook(without notice)
 According to Sir Federick Pollock -when the plaintiff
himself is a wrong doer ,he is not disabled from
recovering in tort “unless some unlawful act conduct on
his own part is connected with harm suffered by him as
part of the same transaction.
Thus it has to be seen what is the connection between
the wrongful act and harm suffered.
Because of his own harmful act he has suffered loss no
action lies.
Merely because the plaintiff is a wrongdoer is 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.
INEVITABLE ACCIDENT
Accident means an unexpected injury and if the same
could not have been foreseen and avoided , inspite of
reasonable care on the part of the defendant, it is an
inevitable accident.
According to Pollock “It doesn’t mean absolutely
inevitable ,it means not avoidable by any such
precautions as a reasonable man, doing such an act
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 avoid the injury by taking resonable care.
Stanley vs Powell
Assam State Coop Vs Anubha Sinha,2001
Shridhar Tiwari VS UP State Road Transport
Corporation
Nitro Glycerine Case( Parrot VS Wells Fargo).
It may ne noted that the defence of inevitable accident
is available when the event is unforeseeable and
consequences unavoidable inspite of reasonable
precaution.
Even if the event is like heavy rain and flood but if the
same can be guarded against and the consequences can
be avoided by reasonable precaution the defence of
inevitable accident cannot be pleaded in such a case.
VEDANTACHARYA VS HIGHWAY
DEPARTMENT OF ARCOT
In this case the highway authorities were held liable.
ACT OF GOD
Act of God as defined by Winfield and Jolowicz:
Where an act is caused (harmful to a party) directly by
natural causes without human intervention in “circumstances
which no human foresight can provide for and against and
of which human prudence is not bound to recognize the
possibility”, the Act of God as defence can be applied.
The concept of Act of God was recognized in the case
of Rylands Vs Fletcher.
Two essential are needed for this defence:
i. There must be working of natural forces.
ii. The occurrence must be extraordinary and not one which
could be anticipated and reasonably guarded against
NICOLAS VS MARSLAND(working of natural forces)
Occurrence must be extraordinary something that couldn’t be
guarded.
Kallulal Vs Hemchand
PRIVATE DEFENCE
Private defence is that force which is necessary to protect
against the possible threat.
With regard to Private defence certain conditions are necessary.
i. There should be an imminent threat to the personal safety
or property. “A” is not justified for using force against “B”
merely just because he thinks “B” will attack him some day.
ii. It is necessary that such a force is necessary to repeal the
action. The force shouldn't be excessive.
Mudali Vs M Gangan-
In order to protect property precaution can be taken by
such precaution has to be reasonable.
In order to take the plea of Private defence it is very
essential to show that there is imminent danger
MISTAKE
Mistake whether of fact or law is generally no defence to
an action for tort.
There is no point in saying that he had entered the legal
rights of other person thinking that there is justification.
Consolidated Co Vs Curtis
NECESSITY
There are three clases of cases to which defence of necessity
applies-i)cases of public necessity ii )cases of private necessary
iii) cases where assistance is given to a third person without his
consent as a matter of necessity.
If damage is caused to prevent a greater evil is generally not
actionable in Law of torts.
There is a difference between Necessity and Private defence.
Corpe Vs Sharp
The defence of public necessity is based on the maxim “salus
populi suprema lex” which means welfare of people is the
supreme law.
The defence of necessity is not available to defendant whose
negligence has created or contributed to the necessity.
Statutory Authority
The damage resulting from a act which the legislature
authorizes or directs to be done is not actionable even
otherwise be a tort.
When an act is done under the authority of an act it is
a complete defence and the injured party has no
remedy.
But should not be any negligence on the part of
defendant while doing what has been authorized
otherwise they wont be liable.