GENERAL DEFENCES IN

TORTS
TORTS 1
DR. SONNY ZULHUDA
Background
• Right to compensation under law of tort must
be brought through LEGAL ACTION (Plaintiff
v Defendant).

• P must cite grounds as the CAUSES OF

ACTION, e.g.: Negligence, Trespass,
Nuisance, Defamation, Wrongful
Imprisonment, etc.

• D has the RIGHT TO DEFEND himself by

citing certain factual and legal grounds.
These grounds are called DEFENCES.

• If the court approves such defence, it can

ELIMINATE or REDUCE liability.
 General Defences
• Volenti Non Fit Injuria (VNFI)
• Necessity
• Inevitable Accident
• Illegality
• Mistake
• Act of God
• Private Defence
• Statutory Authority
VOLENTI NON FIT INJURIA
• VNFI = Consent = Voluntary
assumption of risk!

• “One who has invited or

assented to an act being done
towards him cannot, when he
suffers from it, complain of it as a
wrong.”

Lord Herschell in Smith v. Baker

[1891] A.C. 325, 360.
• VNFI = Consent. But occasionally
courts give different meaning:
– “Consent applies when the plaintiff does
give consent; whereas VNFI applies when
he does not consent but so conducts
himself as to lead the D to believe that he
does.”
(Sir John Donaldson M.R. in Freeman
v. Home Office (No. 2) [1984]

• Consent can be implied from conduct

or expressed in words
– E.g. participating in a boxing match
– Presenting one’s arm for injection
– Smoking cigarettes!
 Requirements to Prove VNFI
• Generally the D will have to prove two things:
1. That P knows about the Risk; AND
2. That P consents to such Risk

“if the def desire to succeed on the ground that the

maxim VNFI is applicable, they must obtain a finding of
fact that the claimant freely and voluntarily, with full
knowledge of the nature and extent of the risk he ran,
impliedly agreed to incur it.”

Letang v. Ottawa Electric Rly Co [1926]

 ICI v Shatwell [1964]

• The plaintiff and his brother were were certificated and

experienced shotfirers employed by ICI Ltd in a quarry
owned by the defendant company.

• Their work included wiring up detonators and checking

the electrical circuits. There was an old practice where a
galvanometer was applied directly to each detonator for
testing purposes. This practice was known to be
dangerous and was outlawed by statutory regulation.

• The explosion took place. The plaintiff claimed his

brother was to blame for the explosion, but the
employer (defendant) was vicariously liable.
 ICI v Shatwell [1964]
• The plaintiff was awarded half of the total amount of
damages. The defendant appealed.

• Court: The plaintiff and his brother were both

experts. They freely and voluntarily assumed the risk
involved in using the galvanometer. There was no
pressure from any other source. To the contrary,
they were specifically warned about complying with
the new safety regulations.

• The defence of volenti non-fit injuria will apply when

there is true and free consent to the risk.

• The court found the plaintiff had consented to the

injury. The defendant/employers were not vicariously
liable.
 Smith v Baker & Sons [1887]
• P, a servant of the defendant railway
contractors, was drilling holes in rock cutting.
He worked in a condition where there was
continuous stone-removal work operating by
crane over his head. A stone fell out of a crate
and injured P. P took action against the
employer.
• Held:
 Mere continuance of work did not indicate that P acted voluntarily.
 The Q was not whether he voluntarily and rashly exposed himself to
injury, but whether he agreed that, if injury should befall him, the risk
was to be his not his masters.
 Whether working under this circumstances is an “assumption of risk”
depends upon the nature of the risk, and the workman’s connection
with it, as well as other various circumstances..
Kanagasabapathy v. Narsingam

– The P, a toddy-tapper was required by the D

(employer) to tap 25 coconut trees twice daily.
– The P had complained several times about the
slipperiness of the steps due to mossy growth and
rain. D did not take action.
– One day P fell and injured himself. P sued D, D
argued that by continuing the work, P had
consented!
– Court disagreed and held D liable for negligence for
failure to provide a reasonably safe system of work.
– Court said P was AWARE of risk BUT he did not
consent to it and therefore VNFI can’t apply.

Q: Was there a knowledge of the risk? Was

there a consent to assume the risk?
 Nettleship v. Weston
• D asked P to teach her driving. Before
agreeing, P inquired about the car’s
insurance policy.

• During one of the lessons, D lost control of

the car and caused an accident, injuring P.

• The defendant argued that the plaintiff was

well aware of her lack of skill and that the
court should make allowance for her since
she could not be expected to drive like an
experienced motorist.

• Court was in favour of P. Held that VNFI does Q: Was there a knowledge of
the risk? Was there a
not apply because P did not consent to the consent to assume the
injury. risk?
Bowater v. Rowley Regis Corporation [1944]
The plaintiff, a carter employed to collect
road sweepings by a municipal
corporation, was ordered by his foreman
to take out a horse which, to the
knowledge of both of them, had run away
on at least two previous occasions when
driven by a fellow employee.

• The carter protested, but the foreman said that it was an order of the
borough surveyor.

• Some weeks later, the horse ran away and the plaintiff was thrown from
his cart and suffered personal injuries.

• P took action against the corporation, alleging that they had failed in
their duty to provide him with a horse which was safe and suitable for
the work which he had to perform.
 Bowater v. Rowley Regis Corporation [1944]
• Court: “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
conditioned, so that he may be able to choose wisely, but the absence
from his mind of any feeling of constraint so that nothing shall interfere
with the freedom of his will.”

• For this maxim or doctrine to apply it must be shown that a servant who
is asked or required to use dangerous plant is a volunteer in the fullest
sense, that, knowing of the danger, he expressly or impliedly said that
he would do the job at his own risk and not at that of his master.

• IN sum:
– A person is said to be voluntarily assuming the risk if he is in a
position where he has a choice.
– He must have full knowledge of the circumstances in which he has
to make the choice, so that he may make a reasonable choice
Bowater v. Rowley Regis Corporation [1944]

• Goddard LJ:
– A corporation carter or dustman is not like a horse-
breaker because he is also a horse-keeper. It is no
part of his duty to break or tame the horse which
draws the dust cart.

– For this maxim or doctrine to apply it must be shown

that a servant who is asked or required to use
dangerous plant is a volunteer in the fullest sense,
that, knowing of the danger, he expressly or impliedly
said that he would do the job at his own risk and not
at that of his master.

– The evidence in this case fell far short of that, and, in

my opinion, the plaintiff was entitled to recover.
Consent in Sport?
• Consent to an injury applies when the
injury is the kind which is inherent and
it happens under normal circumstances
of the sport under its rules. This applies
to anyone who is involved: the
sportsman, officials, reporters,
spectators, etc.

• However, depending on the

circumstances, consent may be
disregarded even if the game observed
the rules.
– Affutu-Nartey v Clarke
 Wooldridge v Sumner [1963]

• A person attending a game or competition takes the risk of

any damage caused to him by any act of a participant done
in the course of and for the purposes of the game or
competition.

• That is notwithstanding that such an act may involve an

error of judgment or lapse of skill
– unless the participant’s conduct is such as to evince a
reckless disregard for the spectator’s safety.”
per Diplock L.J.
 Condon v Basi [1985]
• Issue arose between
participants in amateur
league football match and
substantial damages were
awarded for injuries arising
from a tackle. So, VNFI was
not applicable. Why?

It was described as: “made in

reckless and dangerous manner
not with malicious intent towards
the plaintiff but in an excitable
manner without thought of the
consequences.”
 VNFI in rescue cases
For public policy reason, it is not preferred by the court.
Chadwick v. BRB

Prof. Goodhart:
”The American rule is that the doctrine of the assumption
of risk does not apply where the plaintiff has, under an
exigency caused by the defendant’s wrongful
misconduct, consciously and deliberately faced a risk,
even of death, to rescue another from imminent
danger of personal 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.”

See: Haynes v. Harwood [1935]; Cutler v. Utd. Dairies

[1933}
NECESSITY
 Necessity
• Used in cases “altruistic” in nature – unselfish concern for the
welfare of others: other people, other people’s property or public
property.

• To be applicable, a great danger must be imminent, or that the act

was done in order to save lives – Lord Denning in Southwark
London Borough Council v Williams [1971].

• Limited application – especially on urgent situation of imminent peril,

actual danger and necessity.

• In modern time, more use on medical and surgical cases, i.e. when
a surgery is necessary even though no prior consent was given.
Esp. in cases of emergency and life-threatening AND where similar
treatment was done in the past that has been consented.

• Can be either PRIVATE or PUBLIC necessity

 Cope v Sharpe [1912]
• Fire on P’s land – D stepped in to set the fire
to a heather to protect his pheasants – sued
for trespass to land.

• D not liable as there was real and imminent

danger at the moment and therefore what he
did was reasonably necessary.

Rigby v Chief Cons. of Northamptonshire [1985]

• A dangerous psychopath entered P’s shop – to flush out
that person, D (a policeman) fired a canister of gas into the
shop – the gas caused a fire which damaged the shop – D
was sued in trespass and raised necessity as defence.

• Court: necessity could be raised if the occasion of

necessity does not arise from the defendants own
negligence.

• Held: Necessity applied, therefore no trespass.

INEVITABLE ACCIDENT
 INEVITABLE ACCIDENT
• Defined by Sir Frederick Pollock as and accident “not
avoidable by any such precautions as a reasonable man,
doing such an act then and there, could be expected to
take.”

• People must guard against “reasonable probabilities”,

not “fantastic possibilities” (Fardon v. Harcourt-rivington}

• “An inevitable accident in point of law is… that which the

party charged with the offence could not possibly prevent
by the exercise of ordinary care, caution, and maritime
skill.”
– Per Sir James Colville in The Marpesia [1872] L.R. 4 P.C. 212
INEVITABLE ACCIDENT
• Che Jah binte Mohamed Ariff v CC
Scott [1952] MLJ 69

– P was a passenger in the D’s car which

crashed into a stationary car causing
injuries to P. D gave evidence about
previous reparation and maintenance
activities. Brakes were repaired and tested,
and functioned well.
– Court: the brake defects were latent defect
and as the D has employed skilled labour,
no negligence can be attributed.
– Defence of inevitable accident applicable.
 INEVITABLE ACCIDENT
The defence of Inevitable accident could
not apply in the following cases:

• Tangachimmah v Flower [1968] MLJ

– D’s car windscreen shattered then
completely obscured his view. Thus
collided with the deceased cyclist.

– Court: D failed to discharge the

onus on him to show that the cause
of accident was a cause not
produced by him, the result of
which he could not avoid. The
defence failed.
INEVITABLE ACCIDENT
Zainun bt Abdul Ghani v. Chong Ah Seng:

• Defence of Inevitable Accident failed

when D’s car knocked down a cyclist
after the tyre suddenly burst, Court
found D negligent in using worn-out
equipment, i.e. almost bald tyre.

• To displace the presumption, D must

go further and prove that the burst tyre
itself was due to specific cause that
does not connote negligence on their
part.
 INEVITABLE ACCIDENT
Zainun bt Abdul Ghani v. Chong Ah Seng:

• The burden of proof is upon the Defendant

• D will escape liability if he succeeds in proving that the
accident occurred despute the exercise of reasonable
care on his part.
• He must either:
– Show what was the cause of the accident that the
result of which was inevitable, or
– Show all the possible causes which produced the
effect, and that the result of these was unavoidable
DEFENCE OF ACT OF GOD
 Act of God
• Very limited application – even less favorable given the advance level of
mankind’s knowledge and technology

• It is required that the damage/loss occurs through natural causes which

are unforeseeable and occur without any human intervention – court in
Tennent v Earl of Glasgow [1864].

• Test: whether a foresight and rationality may comprehend the

possibility of the event occurring, or whether the event could have been
reasonably anticipated or prevented.

– Natural danger escaped through a natural cause is an Act of God.

– Artificial danger through a natural cause is hardly!
Kwan Sun Ming v. Chak Chee Hing [1965]
• An action for damages for breach of
contract or alternatively damages for
negligence arising out of a contract to tow
logs from Kampong Abai to Sandakan.

• The defence by Appellant was that the 253

logs were lost in a storm so violent as to
amount to an "act of God" and the
defendant should be excused from all
liability for damages.

• The learned judge held that although there

was a storm it was not a storm violent
enough to be regarded as an "act of God"
and gave judgment against the defendant
(appellant).
 Kwan Sun Ming v. Chak Chee Hing [1965]

Wylie CJ:
• An act of God, in the legal sense of the term, may be
defined as an extraordinary occurrence or circumstance
which could not have been foreseen and which could not
have been guarded against;

• or, more accurately, as an accident due to natural

causes, directly and exclusively without human
intervention, and which could not have been avoided by
any amount of foresight and pains and care reasonably
to be expected of the person sought to be made liable
for it, or who seeks to excuse himself on the ground of
it ....
Nichols v. Marsland (1876)

• A heavy rainfall caused the

embankments of D’s artificial
lakes collapse and water from the
lake swept away four bridges that
belong to P – P took action in
negligence.

• Court applied Act of God as it

was not reasonably foreseeable
and D was not negligent.
 Greenock Corp. v.
Caledonian Railway
[1917]

• Another heavy rainfall caused D’s pool to flood – water from pool flowed to
highway and then onto P’s land – causing damage to P’s property – D
used the defence of Act of God.

• Court did not accept the Act of God and held that D was negligent.

• Reason: In collecting and damming up the water of a stream, D had a duty

to ensure that people of lower ground would not be injured or adversely
affected as a consequence of their activities.

• Thus: the INTERFERENCE creates such duty on D!

 CMW Engineering Corporation Sdn. Bhd VS Hotrade Sdn.
Bhd [In the High Court in Sabah and Sarawak at Kuching,
Civil Appeal no. 12b-11-2010-ii]
FACTS:
• The plaintiff is a distributor of
power tools whereas the
defendant is a public transport
company.
• On 14th September 2007, the
parties had entered into an
agreement whereby the defendant
would transport the plaintiff’s
power tools from Kuching to Miri.
ISSUE: Whether the goods were destroyed by • The goods never reached their
an act of god? destination as the trailer caught
fire and some of the goods
The court referred to the decision in Federal including the plaintiff’s goods were
Court in Kwan Sung Ming which held that the completely destroyed.The plaintiff
event must be one which could not have been claimed for damages.
foreseen and which could not have been
guarded against.
 CMW Engineering Corporation Sdn. Bhd VS Hotrade Sdn.
Bhd [In the High Court in Sabah and Sarawak at Kuching,
Civil Appeal no. 12b-11-2010-ii]
RAVINTHRAN PARAMAGURU JC:
• In the instant case, the defendant’s
witnesses testified that the trailer had
been sent for regular inspection.
• Merely because the defendant did not
know what caused the fire does not
qualify it as an Act of God as the
vehicle is a man made mechanical
contraption.
• It is obvious that the fire was caused
“The Sessions Court Judge was therefore by either human intervention or some
plainly wrong in ruling that the fire was mechanical or electrical fault since
caused by an act of God merely because there was no evidence that the fire was
the cause of the fire was unknown.He caused by a natural event such as
omitted to take into account whether lightning striking the trailer.
human intervention or natural causes • In my opinion, the defendant 5 has not
resulted in the fire.” made out a case that an act of god
caused the fire.
PRIVATE DEFENCE
Private Defence
• Private defence or self defence is a very
natural thing for survival and prevention
of repeated strikes against him/itself.

• To be applicable, 2 tests:

IS IT REASONABLE TO
APPLY VIOLENCE?
Private
YES NO Defence
NOT
IS THE VIOLENCE USED applicable
PROPORTIONATE TO THE
STRIKE?
NO
YES

Private Defence Applicable

 Defence of person
• Question to pose: is the danger
imminent?

Lane v Holloway [1968]

• In a fight due to words exchange

between P & D’s wife, P hit D on the
shoulder – D retaliated causing P to
suffer injury that requires 16 stitches.

• Lord Denning: D should not have taken

P’s words as a challenge due to their
age difference. The violent retaliation
was unreasonable and not
proportionate. Self defence was not
applicable.
 Defence of Property
Holmes v Baggae [1853]

• Defence of property can be raised by someone who has the

right of possession to the property.

• P & D members of a cricket club – P was forcibly removed from

cricket field by D’s direction – In action for assault D uses
defence of property

• Court: defence cannot be used as D does not have possession

of the property i.e. the cricket field. (because it was possessed
by the committee of the club, not by the D)

Creswell v Sirl [1947]

• P’s dog chased D’s sheep, causing it to miscarry – D shot
P’s dog – Argued the defence of property.

• Court: two tests to be proven: (1) the sheep was in actual

& imminent danger; and (2) if the dog is left at large, this
would leave the sheep in constantly imminent danger.
Court approved the defence
ILLEGALITY
 DEFENCE OF ILLEGALITY
• WHAT?
– The principle: no court ought to enforce an illegal
contract or allow itself to be made the instrument of
enforcing obligations alleged to arise out of an illegal
transaction

– Maxim: “EX TURPI CAUSA NON ORITUR ACTIO”

"from a dishonorable cause an action does not arise“

– It is about serving public interest, not taking side to

the defendant!
 ILLEGALITY
• HOW?
– It is applied when the illegality is duly brought to the
notice of the court and the person (plaintiff) is himself
implicated in the illegality
– Scott v Brown [1892]

– The def must establish:

• That the plaintiff’s conduct is so clearly reprehensible as to
justify its condemnation by the court, and
• That the conduct is so much a part of the claim against the
defendant as to justify refusal of remedy to plaintiff
 ILLEGALITY
Consider the two possibilities:

1. Two burglars, A and B, agree to open a safe by means of

explosives, and A negligently handles the explosive charge and
injured B, can B take action for negligence against A?

2. If A and B are proceeding to premises which they intend

burglariously to enter, and before they enter them, B picks A’s
pocket and steals A’s watch, can A sue B in tort?

• Per Lord Asquith in National Coal Board v. England [1954] A.C. 403,
429.
 Applied in cases involving joint
participants in crime…
• Ashton v. Turner [1981] QB 137
– P and D committed burglary
and escaped from the scene
in a getaway car.
– They were met by accident,
injuring P.
– P’s claim for negligence failed
Pitts v. Hunt [1990] All ER 344
• After an evening’s drinking, P and D set off
home on a motorcycle which D was, to P’s
knowledge, neither licensed nor insured to
ride. D’s alcohol level was twice that
permitted.

• Encouraged by P, D drove in a reckless and

hazardous manner in order to frighten
members of the public.

• An accident occurred, P injured.

• Court of Appeal: P’s action failed on the

ground of public policy (i.e. engagement in
illegality, and court’s reluctance to frame
standard of care on a detailed criminal
activity)
 Local cases on Illegality
• Chua Kim Suan v. Govt. of
Malaysia [1994] 1 MLJ 394
– Plaintiff was a taxi driver without
legal license. He met an accident
and was killed. Losses were not
claimable as it would be against
public policy.

Tay Kian Hock v. Kewangan Bersatu

Bhd. [2002] 4 MLJ 411
• Claim for conversion was not successful
when plaintiff’s conduct (not returning the
D’s equipment) has formed integral part
of the conversion by D. It was against
public conscience to allow the claim.
STATUTORY AUTHORITY
 Statutory Authority
• Statute may absolve defendant’s liability subject
to certain requirements that may differ from one
statute to another, from one matter to another.

• Example:
– Under s. 19 Civil Aviation Act 1969: “No action shall
lie in respect of trespass or in respect of nuisance, by
reason only of the flight of aircraft over any property
at a height above the ground, which, having regard to
wind, weather, and all the circumstances of the case,
is reasonable, or the ordinary incidents of such flight,
so long as this Act and any subsidiary legislation
made under this Act are duly complied with..”
STREET, DRAINAGE AND BUILDING ACT 1974

• Section 95. Protection of the State Authority and

officers from personal liability.

• (1) No matter or thing done and no contract entered into

by any State Authority and no matter or thing done by
any officer employed in the administration of this Act or
other person whomsoever acting under the direction of
any State Authority shall if the matter or thing was done
or the contract was entered into bona fide for the
purpose of executing this Act, subject them or any of
them personally to any action, liability, claim or demand
whatsoever.
STREET, DRAINAGE AND BUILDING ACT 1974

Section 95 (2)

• The State Authority, local authority and

any public officer or officer or employee of
the local authority shall not be subject to
any action, claim, liabilities or demand
whatsoever arising out of any building or
other works carried out in accordance
with the provisions of this Act or any by-
laws made thereunder or by reason of the
fact that such building works or the plans
thereof are subject to inspection and
approval by the State Authority, local
authority, or such public officer or officer
or employee of the State Authority or the
local authority…
Majlis Perbandaran Ampang Jaya v
Steven Phoa Cheng Loon [2006]
• After the collapse of Block 1 of Highland Towers in
Ampang in 1993, the local authority MPAJ (the
appellant) promised the respondents that a master
drainage plan for the affected area on the hill slope
behind Highland Towers would be formulated and
implemented so as to ensure the stability and safety
of the adjacent Blocks 2 and 3 occupied by the
respondents. However, MPAJ failed to carry out the
plan.

• The respondents then filed a suit in the High Court

against various parties including the appellant MPAJ,
for negligence and nuisance.

• The learned trial judge found the appellant who was

the fourth defendant in the case to be 15% liable for
negligence in respect of the appellant's acts and
omissions prior to the collapse of Block 1 of the
Highland Towers.
Majlis Perbandaran Ampang Jaya v
Steven Phoa Cheng Loon [2006]
• However, he held that s 95(2) of the Street, Drainage
and Building Act 1974 ('the Act') operated to
indemnify the appellant of any pre-collapse liability
but provided no protection to the appellant for post-
collapse liability.

• At the Federal Court, the appellant appealed against

the decision of the Court of Appeal in affirming the
High Court's finding that the appellant was 15% liable
to the respondents for negligence and nuisance.
– The respondents' cross-appeal was aimed at the Court
of Appeal's decision that their cause of action against
the appellant for alleged post-collapse liability lay in the
area of public law and not private law.

• Federal Court allowed Appellant’s appeal and

dismissed respondent’s cross appeal.
 Mistake
• Mistake can be:
– Mistake of law  Ignorantia juris non excusat!
– Mistake of fact  very limited application

• Very limited applicability as a defence – Not applicable in

conversion e.g. Consolidated Co. v. Curtis [1892]

• In that case: def (an auctioneer) was held liable in

conversion to plaintiff when he sold off his goods under a
mistaken belief that the goods belonged to someone
else who gave instruction to sell off the goods.
Cheng Hang Guan v. Perumahan Farlim (Penang) Sdn.
Bhd. [1993]

• The plaintiffs (P1, P2 and P3) claimed that at all

material times, they were and are lawful and
protected tenants and that they were entitled in law
and equity to possession of the plot concerned. The
plaintiffs' claim against the defendants was founded
on trespass and nuisance allegedly committed by the
defendants

• D carried out the demolition works concerned in the

honest belief that they were entitled to do so

• Their mistaken view of the law as to the availability

of self-help, is no defence to an action for trespass.

• Court allowed the plaintiff’s claim: Trespass is

normally associated with intentional acts even though
committed by mistake, for mistake is no defence and
is no answer to the claims for exemplary damages,
having regard to the particular circumstances of this
case.
 Revision
Undestand the Following:
• Types and Meaning of Defence
• legal Requirements of Applicability
• Prominent Features/incidents
• Caselaws (Reasons of the decision