CAPACITY OF PARTIES AND GENERAL

DEFENCES

UNIT II – GENERAL DEFENCES

GENERAL DEFENCES:

i. VOLUNTI NON FIT INJURIA

ii. INEVITABLE ACCIDENT

iii. PLAINTIFF’S OWN WRONG

iv. ACT OF GOD

v. PRIVATE DEFENCE

vi. NECESSITY

vii. MISTAKE

viii. STATUTORY AUTHORITY

 VOLENTI NON FIT INJURIA

• Harm suffered voluntarily – does not constitute a legal injury – not actionable
• Volenti non fit injuria – “to a willing person, no injury is done”
• A man cannot complain of harm to the chances of which he has exposed himself
with knowledge and of his free will
• Many a time, the consent may be implied or inferred from the conduct of the
parties.
• Players of football, cricket – deemed to be agreeing to any hurt which may be
likely in the normal course of the game.
• Spectator of a cricket match of a motor race cannot recover if he is hit by the
ball or injured by a car coming on the track
• Hall v. Brooklands Auto Racing Club [ (1932) All E.R Rep. 208]
• 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 the spectators, thereby
injuring the plaintiff. It was held that the plaintiff impliedly took the risk of
such injury, the danger is inherent in the sport which any spectator could
foresee, the defendant was not liable.
• 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 mistaken 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.
• 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
• If only 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.
• Lakshmi Rajan v. Malar Hospital Ltd., III (1998) CPJ 586 (Tamil
Nadu SCDRC)
• The complainant – married woman – aged 40 years –
noticed a lump in her breast – the lump had no effect on
her uterus – but during surgery – her uterus was removed
without any justification
• Held – deficiency in service – consent for operation does
not imply her consent to removal of her uterus – held
liable
• Illot vs Wilkes (1820) 3 B & Ald 304
• Bird vs Halbrooke 1828 4 Bing 628
BREACH OF STATUTORY DUTY
Consent to a breach of statutory duty is not recognized.
Where the workman contravenes statutory provisions and also employer’s
orders and thereby causes injury to himself, the maxim volenti non fit injuria
applies.
Imperial Chemical Industries vs Shatwell (1933) 2 KB 660
Two brothers Shatwell and James had been working in the defendant’s quarry.
They tried to test some detonators which was against the statutory provisions
and also against the employer’s orders. The test resulted in explosion causing
injury to Shatwell. He filed a suit against the defendant on the ground that his
brother was equally responsible with him for the accident and that the
defendants were vicariously liable for his brother’s conduct. The defendants
pleaded volenti non fit injuria. The House of Lords granted the defence.
• Consent vitiated by Fraud
• R. v. Wiliams, (1923) 1 K.B. 340
• A music teacher was held guilty of raping a 16 years old girl under
the pretence that the same was done to improve her throat and
enhancing her voice. Here, the girl misunderstood the very nature
of the act done with her and she consented to the act considering it
a surgical operation to improve her voice.
• Consent obtained under compulsion
• There is no consent when someone consents to an act without free will or under
some compulsion.
• It is also applicable in the cases where the person giving consent does not have full
freedom to decide.
• This situation generally arises in a master-servant relationship where the servant is
compelled to do everything that his master asks him to do.
• Thus, there is no applicability of this maxim volenti non fit injuria, when a servant is
compelled to do some work without his own will.
• But, if he himself does something without any compulsion then he can be met with
this defence of consent.
• MERE KNOWLEDGE DOES NOT IMPLY ASSENT
• For the applicability of this maxim, the following essentials
need to be present:
• The plaintiff knew about the presence of risk.
• He had knowledge about the same and knowingly agreed to
suffer harm.
• If only the first of these points is present – it is no defence –
because – merely the plaintiff knows of the harm does not
imply that he assents to suffer it
• Bowater v. Rowley Regis Corporation, (1944) K.B. 476
• A cart-driver was asked to drive a horse which to the knowledge of both
was liable to bolt. The driver was not ready to take that horse out but he
did it just because his master asked to do so. The horse, then bolted and
the plaintiff suffered injuries. Here, the plaintiff was entitled to recover.
• Smith v. Baker, (1891) A.C. 325
• The plaintiff was an employee to work on a drill for the purpose of
cutting rocks. Some stones were being conveyed from one side to
another using crane surpassing his head. He was busy at work and
suddenly a stone fell on his head causing injuries. The defendants were
negligent as they did not inform him. The court held that mere
knowledge of risk does not mean that he has consented to risk, so, the
defendants were liable for this. The maxim volenti non fit injuria did not
apply.
• Dann v. Hamilton, (1939) 1 K.B. 509
• A lady even after knowing that the driver was drunk chose to travel in the car
instead of any other vehicle. Due to the negligent driving of the driver, an
accident happened which resulted in the death of the driver and injuries to the
passenger herself. The lady passenger brought an action for the injuries against
the representatives of the driver who pleaded the defence of volenti non fit
injuria but the claim was rejected and the lady passenger was entitled to get
compensation. This maxim was not considered in this case because the driver’s
intoxication level was not that high to make it obvious that taking a lift could be
considered as consenting to an obvious danger.
• NEGLIGENCE OF THE DEFENDANT
• For example, when someone consents to a surgical operation
and the same becomes unsuccessful then the plaintiff has no
right to file a suit but if the same becomes unsuccessful due to
the surgeon’s negligence then in such cases he will be entitled
to claim compensation.
• LIMITATIONS ON THE APPLICATION OF THE DOCTRINE
• The scope of the maxim volenti non fit injuria has been curtailed in the
following cases:
• Rescue cases
• The Unfair Contract Terms Act, 1977 (England)
• In these cases, even if the plaintiff has done something voluntarily but
he cannot be met with the defence of ‘consent’ i.e. volenti non fit
injuria.
• In spite of the fact that the plaintiff has consented to suffer the harm,
he may still be entitled to his action against the defendant in these
exceptional situations.
• RESCUE CASES
• When the plaintiff voluntarily comes to rescue someone from a danger
created by the defendant then in such cases the defence of volenti non
fit injuria will not be available to the defendant.
• In Haynes v. Harwood, (1935) 1 K.B. 146
• The defendants’ servant left two unattended horses in a public
street. A boy threw a stone on the horses due to which they bolted
and created danger for a woman and other people on the road. So, a
constable came forward to protect them and suffered injuries while
doing so. This being a rescue case so the defence of volenti non fit
injuria was not available and the defendants were held liable.
• However, if a person voluntarily attempts to stop a horse which creates no danger then he will
not get any remedy. Cutler vs United Dairies (London) Ltd. (1933) 2 LB 297
• Wagner v. International Railway, (1921) 232 N.Y. 176
• A railway passenger was thrown out of a moving train due to the negligence of the
defendants. One of his friends got down, after the train stopped, to look for his friend but
then he missed the footing as there was complete darkness and fell down from a bridge and
suffered from some severe injuries. The railway company was liable as it was a rescue case.
• Baker v. T.E. Hopkins & Son, (1959) 1 W.L.R. 966
• Due to the employer’s negligence, a well of a petrol pump was filled with poisonous fumes.
Dr. Baker was called to help but he was restricted from entering the well as it was risky. He
still went inside to save two workmen who were already stuck in the well. The doctor
himself was overcome by the fumes and then he was taken to the hospital where he was
declared dead. When a suit was filed against the defendants, they pleaded the defence of
consent. The court held that in this case the defence cannot be pleaded and the
defendants, thus, were held liable.
• If someone knowingly creates danger for himself and he knows that he
will likely be rescued by someone, then he is liable to the rescuer.
• Applies to rescue of properties as well.
• Hyett v. Great Western Railway Co., (1948) 1 K.B. 345
• The plaintiff got injured while saving the defendant’s cars from a
fire which occurred due to negligence on the part of the
defendants. The plaintiff’s acts seemed to be reasonable and the
defendant was held liable in this case.
• UNFAIR CONTRACT TERMS ACT, 1977 (ENGLAND)
• The Unfair Contract Terms Act, 1977, limits the right of a person to exclude his
liability resulting from his negligence in a contract. Section 2
• NEGLIGENCE LIABILITY
• Sub-section 1 puts an absolute ban on a person’s right to exclude his liability for
death or personal injury resulting from the negligence by making a contract or
giving a notice.
• Sub-section 2 is for the cases in which the damage caused to the plaintiff is other
than personal injury or death. In such cases, the liability can only be avoided if a
contract term or notice satisfies the reasonability criteria.
• Sub-section 3 says that a mere notice or agreement may not be enough for proving
that the defendant was not liable but in addition to that some proofs regarding the
genuineness of the voluntary assumption and plaintiff’s consent should also be
given.
• DIFFERENCE BETWEEN VOLENTI NON FIT INJURIA AND CONTRIBUTORY
NEGLIGENCE
• Volenti non fit injuria is a complete defence but the defence of
contributory negligence came after the passing of the Law Reform
(Contributory Negligence) Act, 1945. In contributory negligence, the
defendant’s liability is based on the proportion of fault in the matter.
• In the defence of contributory negligence, both are liable – the
defendant and the plaintiff, which is not the case with volenti non fit
injuria.
• In volenti non fit injuria, the plaintiff knows the nature and extent of
danger which he encounters and in case of contributory negligence on
the part of the plaintiff, he did not know about any danger.
• PLAINTIFF THE WRONGDOER
• There is a maxim “Ex turpi causa non oritur actio” which says
that “from an immoral cause, no action arises”.
• If the basis of the action by the plaintiff is an unlawful
contract then he will not succeed in his actions and he cannot
recover damages.
Pitts v. Hunt, [1990] 3 All ER 344
• There was a rider who was 18 years of age. He encouraged his friend
who was 16 years old to drive fast under drunken conditions. But
their motorcycle met with an accident, the driver died on the spot.
The pillion rider suffered serious injuries and filed a suit for claiming
compensation from the relatives of the deceased person. This plea
was rejected as he himself was the wrongdoer in this case.
 INEVITABLE ACCIDENT

• Inevitable accident/unavoidable accident – could not be

possibly prevented – by ordinary care/caution
• Good defence – neither intended to injure – nor could be
avoid – the injury taking reasonable care
• Fardon v Harcourt-Rivington, (1932) 146 LT 391 (392) – Per
Lord Dunedin – People must guard against reasonable
probabilities, but they are not bound to guard against
fantastic possibilities
• Stanley v. Powell, [1891] 11 Q.B. 86
• The plaintiff and defendant – members of shooting party – went for
pheasant shooting – defendant fired a at a pheasant – the shot –
glanced off an oak tree – injured plaintiff
• Held – the injury was accidental and the defendant was not liable
• Brown vs Kendall (1850) 6 Cussing 292
• Shridhar Tiwari v UPSRTC, 1987 ACJ 636
• It was raining and wet – cyclist suddenly came in front – bus ‘A’ in
order to save the cyclist – put brake – skidded – hit the front portion
of bus ‘B’ – both the buses were driven in moderate speed – in spite
of this the accident took place
• Held – occurred due to inevitable accident – the defendant corp. was
not liable
• Nitro-Glycerine case, (1872) 15 Wallace 524
• An individual paid the defendant to ship a crate of nitroglycerine from New York to San
Francisco. Neither the defendant nor any of the defendant's employees knew what the
crate contained. Little was known about the properties of nitroglycerine at the time.
The crate was leaking when it arrived at its destination. It was taken to the defendant's
building and exploded when a defendant's employee tried to open it. Plaintiff was
injured in the blast, and sued defendant to recover damages for the injuries sustained.
The district court held that defendant was not liable, and plaintiff appealed.
• On appeal, the Supreme Court affirmed the prior rulings. The Court held that the
defendant, being ignorant of the contents of a package received in its regular course of
business, was not guilty of negligence in introducing the package into its place of
business and handling it in the same manner as other packages of similar outward
appearance were usually handled. They were not liable for injuries resulting from an
unavoidable accident that occurred while they were engaged in a lawful business and
exercising the standard of care required of a person of ordinary prudence and caution.
• National Coal Board v. Evans, [1951] 2 K.B. 861
• An electrical cable was placed under the land of the county council by the
National Coal Board (NCB) or its predecessors, without the council’s
knowledge, as far as could be established. The council contracted JE Evans &
Co (Evans) to excavate a trench on the land. Evans had no knowledge or
indication there was a cable. When excavating the land, the cable was
struck and damaged. NCB brought a cause of action for trespass.
• No liability in trespass could be found since the act was involuntary and
accidental. The act of Evans was neither negligent nor wilful and was
“utterly without fault”. The liability for negligence and injury lay with the
NCB or their predecessors for failing to notify the council when they placed
the cable under their land without knowledge or consent from the council.
• S. Vedantacharya v Highways Dept. of South Arcot, 1987 ACJ 783
• Even if the event is like heavy rain and flood but if the same can be
anticipated and guarded against and the consequences can be avoided
by reasonable precautions, the defence of inevitable accident cannot be
pleaded in such case.
 ACT OF GOD
• Act of God serves as a good defence under the law of torts. It is also
recognized as a valid defence in the rule of ‘Strict Liability’ in the case
of Rylands v. Fletcher, (1868) L.R. 3 H.L. 330.
• The defence of Act of God and Inevitable accident might look the same
but they are different. Act of God is a kind of inevitable accident in
which the natural forces play their role and causes damage. For
example, heavy rainfall, storms, tides, etc.
• Essentials required for this defence are:
• Natural forces’ working should be there.
• There must be an extraordinary occurrence and not the one which
could be anticipated and guarded against reasonably.
• WORKING OF NATURAL FORCES
• Ramalinga Nadar v. Narayan Reddiar, AIR 1971 Ker 197
• The unruly mob robbed all the goods transported in the defendant’s
lorry. It cannot be considered to be an Act of God and the defendant, as a
common carrier, will be compensated for all the loss suffered by him.
• Nichols v. Marsland, (1876) 2 ExD 1
• The defendant created an artificial lake on his land by collecting water
from natural streams. Once there was an extraordinary rainfall, heaviest
in human memory. The embankments of the lake got destroyed and
washed away all the four bridges belonging to the plaintiff. The court
held that the defendants were not liable as the same was due to the Act
of God.
• OCCURRENCE MUST BE EXTRAORDINARY
• Some extraordinary occurrence of natural forces is required
to plead the defence under the law of torts.
• Kallu Lal v. Hemchand, AIR 1958 MP 48
• The wall of a building collapsed due to normal rainfall of
about 2.66 inches. The incident resulted in the death of
the respondent’s children. The court held that the
defence of Act of God cannot be pleaded by the
appellants in this case as that much rainfall was normal
and something extraordinary is required to plead this
defence. The appellant was held liable.