UNIT 2

INTRODUCTION
. Under certain conditions an act ceases to be
wrongful or not consider as tort.
Th is condition wh ich excu s e can be
divided into two category:
(i) Condition that justify some specific tort.
(ii) Those condition that are applicable to
all torts equally.
Eg . ( i ) Tr u th an d f ai r c o m m e n t ar e
defences for defamation.
(ii) consent is defense for any tort.
 General Defences
(1) Consent or Leave and Licence (Volenti non
fit injuria)
(2) Act of God.
(3) Inevitable accident.
(4) Necessity.
(5) Private defence
(6) Acts causing slight harm.
(7) Statutory authority
(8) Parental and quasi-parental authority
(9) Act of state
(10) Judicial or Quasi judicial acts
(11) Executive acts.
 Volenti Non fit Injuria

(Consent)
Volenti Non fit Injuria – To a willing person,
it is not wrong.
When a 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 harm, he is not allowed to complain
for that and his consent serves as good
defence against him.
 Consent
permission for something to happen or
agreement to do something.
Four types of Consent
1) Express
2) Implied
3) Opt-in
4) Opt-out
 For example a player in the game of
cricket or football deemed to agreeing to
any hurt which may be likely in the normal
course of the game.
In the same way, spectator at a cricket
match or a motor race cannot recover if he
is hit by the ball or injured by a car coming
on the track.
 Reasonable Restrictions
The act causing the harm must not go
beyond the limit of what has been
consented.
For example A player in a game has no
right of action if he is hit while the game is
lawfully played. If there is a deliberate
in j u r y c au s ed by an oth er player, th e
defence of volenti cannot be pleaded.
 Hall v. Brooklands Auto Racing Club
The plaintiff was a spectator at a motor
car racing being held at brookslands . A
collision between two cars, one of which
was thrown among the spectators, there
by injuring the plaintiff, danger being
inherent in the sport, the defendant was
not liable.
 Padmavati v. Dugganaika
A driver was taking the jeep for f il ling
petrol in the tank, two strangers took lift in
the jeep. Suddenly one of the bolts of the
front wheel gave way toppling the jeep.
Two strangers sustained injuries and one
if them died. Driver not liable because of
the implied consent.
 Wooldridge v. Summer
The Plaintiff , who was a photographer
was taking photographs at a horse show
while he was standing at the boundary of
the arena. One of the horses galloped
furiously the plaintiff was frightened and
h e fe l l i n to t h e h o r s e’s c o u r s e a n d
seriously injured. Defendants had taken
due care taken due care not liable.
 Illot v Wikes
A trespasser, who knew about the
presence of spring guns on a land, could
not recover damages when he was shot by
spring gun.
Damaged caused to a trespasser by
broken glass or spikes on wall or f ie rce
dog.
 ESSENTIAL CONDITIONS OF
VOLENTI NON FIT INJURIA:
Consent Must Be Free
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.
 Example: A postman has the implied consent of
the resident of a building to go up to a particular place
to deliver the letter, but only to the particular point. If
he goes beyond that limit and enters the rooms of the
house, he would be liable.
Lakshmi Rajan v. Malar Hospital Ltd
Consent was given to operate a painful lump in the
Breast but during the surgery uterus was removed. It
was held that the patient’s consent did not imply to
removal of uterus.
 Consent obtained by fraud
Consent obtained by fraud is not real and
that does not serve as good defence.
R v. Williams (1923) 1 KB 340,
The defendant was a singing coach and he
had convinced a 16-year-old student to have
sexual intercourse with him by telling her that
it will help her in improving her voice and
singing. The defendant was held liable by the
Court because the consent was obtained by
fraud.
 Consent obtained under compulsion
Consent given under circumstances
when the person does not have freedom of
choice is not the proper consent.
This situation generally arises in Master-
servant relationship. The servant may
sometimes be faced with the situation
either accepting the risky work or losing
the job.
 Bowater v. Rowely regis corporation
There is no volenti non f it injuria, when a
servant is compelled to do some work in
spite of his protests.
 Mere Knowledge does not imply assent
For the maxim Volenti non f it injuria to apply,
two points have to be proved.
1) The plaintiff knew that the risk is there.
2) He/she, knowing the same, agreed to
suffer the harm.
Bowater v. Rowely regis corporation
A Cart driver was asked by the defendant‘s
foreman to drive a horse, knowing the horse
will bolt. The plaintiff was compelled to take
the horse. Horse bolted no Volenti non f it
injuria.
 Smith v. Baker
Stones were conveyed from one side to
another side in a crane. The plaintiff was
working between the crane passing the
stone. The employer didn’t warned the
plaintiff about the recurring danger. Stone
fell and injured the plaintiff. Volenti non fit
injuria did not apply.
 Volenti non fit injuria and Tort
under negligence
Dann Vs Hamilton,
The plaintiff knew driver of a motor car was drunk
and hence the chance of accident were great.
Yet she choose to travel. But defendant held liable,
since the maxim not applicable under negligence.
Slaster Vs Clay Cross Co. Ltd
The plaintiff was struck and injured by train driver,
while she was walking along a narrow tunnel.
Even though she took the risk. It was the drivers
negligence which caused the accident.
Baker Vs T.E Hokins and sons.-
A well was f illed with poisonous fumes of petrol.
Driven pump on account of negligence of t he
employer. Defendant held liable.
 INEVITABLE ACCIDENT
Meaning
Not caused intentionally
Not possibly avoided by ordinary care and
caution
Incapable of preventing the danger
Eg: A man rides a horse with due care and
caution, yet accident happens, the plea cannot
be- horse should not have been ridden
 Stanley v. Powell (1891) 1 QB 86
Defendant f iring at pheasant accidently
and without negligence shot plaintiff with
pellet from his gun. Inevitable accident.
Inevitable accident has been held as good
defence in Englis h cas es relating to
trespass to the person
 Holmes v. Mather 1875 LR 10 Ex 261
Person walking along the road knocked
by the pair of horses. The horses ran out
of control of groom who tried stopping
them from entering into the opposite shop.
Not liable- Inevitable accident
 Padmavati v. Dugganaika
A driver was taking the jeep for f il ling
petrol in the tank, two strangers took lift in
the jeep. Suddenly one of the bolts of the
front wheel gave way toppling the jeep.
Two strangers sustained injuries and one
if them died. Driver not liable.
 Nitro-Glycerine Case
The defendants were wooden carriers,
found leak in a box. Took that box to the
of fic e to analyze the box. While the box
being opened Nitro-Glycerine in the box
was exploded and damaged the plaintiff’s
building. The defendant not liable because
they didn’t know the content of the box.
Shridhar Tiwari v. U.P. State Road Transport
Corporation
Bus “A” and “b” Collided with each other
due wet road. Even though both buses
were driven in a moderate speed and the
accident had occurred despite due care on
the drivers. Therefore the defendant
corporation was not liable.
 Necessity
An act causing damage, if done under necessity
to prevent a greater evil is not actionable even
though harm was caused intentionally.
Ex: Boat overloaded with rice bags and caught
in a storm.
Held- Necessity and reasonable to throw some
rice bags in the lake to prevent sinking of boat
 Leigh v. Gladstone
Forcible feedin g of a h u n ger s trike
prisoner to save her was held to be good
defence to an action for battery.
Cope v sharpe
Act of burning neighbor's heather was
h e l d j u s ti f ia b l e i n o r d e r to p r e v e n t
spreading of fire to his sitting pheasants
 Krik v. Gregory (1876) 1 Ex D 55
X died in state of delirium tremens
His servants were feasting & drinking in another part of house
X’s sister-in-law removed X’s jewelry from the room where he
died to another room to safeguard against theft
Unfortunately, some unknown person stole it
Executors of the deceased person sued against X’s sister-in-
law for the recovery of the price of lost jewels.
Plea of necessity was rejected and she was held liable and
was asked to repay the price of lost jewels.
 Private Defence
The law permits use of reasonable force to protect one’s
person or property.
Eg: Trespass- Using force in your own property- private defence,
retaking your goods back- self help
Remedy that is done by one’s own act- self help, private
defence has no own remedy
Private defence to protect own family-spouse/ master-servant
Force must be proportionate to the nature of threatened evil
 Not a defence
A would not be justif ie d in using force
against B, merely because he thinks that B
would attack him someday.
If a strikes B, B cannot justify drawing his
sword and cutting of his hands.
Section 76 – 106 of IPC comes under
General Exceptions and section 96 of IPC
Defines Private Defence.
 Bird v. Holbrook (1821) 4 Bing 628
Defendant to prevent stealing of f lowers from his
garden set up spring gun
Plaintiff, a boy came in search of a fowl that was
strayed in the garden and had no knowledge of
spring gun
When he got over garden wall, he came in contact
with the gun and was injured. Defendant- liable
 Ramanujam Mudali v. M. Gangan
The defendant laid some live electric wire
in his own land. The Plaintiff received a
shock from the wire while searching his
own land. No visible warning of wire,
defendant liable.
 Scott v Shepherd (1773) 2 W& BL 892
‘A’ threw lighted squib in a crowded market house
Lighted squib fell on gingerbread stall of Yates
Bystander Willis, to prevent injury to him and Yates ware, picked
up and threw the squib further
Fell on Ryal stall who threw it further
It fell on ‘B’ and blinded his one eye
No action against Willis, Ryal and other intermediaries
A is liable to B for trespass and assault
Intermediaries not responsible because they acted ‘under
compulsive necessity for own safety & Self- Preservation’
 MISTAKE
Ignorance of either a fact or of law is not a defence
ignorantia juris non excusat- Ignorance of Law is no excuse
Inevitable accident is defence. Inevitable mistake is no
defence
Everyone is bound to know the law and ignorance of the same
cannot be pleaded as an ignorance and hence is not an excuse
However, Mistake of Fact is a good defence in criminal law
 Foster 265 KGC 271
A man before going to church left his gun unloaded
In his absence, some person took it for shooting and left the gun
loaded
The owner later took the gun and accidently touched trigger
Gun went off and killed his wife who was in the room
Held- Reason to believe that weapon was not loaded and hence
he was acquitted
In civil cases, if one intentionally interferes with another person,
property, reputation or other interests, he cannot claim that he did
it on good faith
 Consolidated Co. v. Curtis
An auctioneer, who sells goods, under an
authority from customer having no title to
the goods, is liable or conversion, even
though at the time of sale he honestly
believed that, customer was the true owner.
 STATUTORY AUTHORITY
No one can complain a wrong which is authorized by
legislature
When a statute specif ically recognizes and authorizes a
particular act, no action can be taken against the same
If a bridge is to be constructed and thereby right of way
is denied for a specif ic time, no suit can be brought
against
This defence does not only apply to the act of statutory
authority but also to all the necessary consequences
Mohd. Moideen Sait v. Madras Corpn (1901) ILR25
Mad 118
With Madras City Municipal Act, ‘Commissioners
shall provide a suf fic ient number of places for
burial and burning grounds’
Compulsory acquisition of lands for the above
said purpose is allowed and no damages can be
claimed. Absolute Authority
Metropolitan Asylum District v. Hill (1881) 6 AC
193
A local authority given statutory permission to
built a smallpox hospital.
R e s t ra i n e d f r o m c o n s t r u c t i n g n e a r t h e
neighboring residents
Conditional Authority- Not to cause danger to the
residents
Conditions to Sue a public authority
Complained act must be done with the authority granted
Acted in mala fide manner with the intent to injure
Gives rise to tort of misfeasance
Common Cause, A Registered Society v. UOI 1996 (7)156
In a PIL, allotment of petrol pumps by Central Minister
w a s f o u n d m a l a f id e a n d t h e a c t i o n o f t o r t o f
misfeasance in public of fic e was taken and allotment
was cancelled
 ACT OF GOD
An Extraordinary occurrence
circumstance, which could not have been
foreseen and which could not have been
guarded against, or, more accurately, as an
accident due to a natural cause, directly and
exclusively, without human intervention and
which could not have been avoided by any
amount of foresight and pains.
 There are two important essentials are
needed for this defence.
1. There must be working in natural
forces.
2. The occurrence must be extraordinary
and not one which could be anticipated
and reasonably guarded against.
 Nichols v. Marsland
Defendant constructed an artif ic ial lake upon
natural stream
Extraordinary rainfall was witness for which the
lake broke and water rushed into plaintiff’s land
and four county bridges. Held- Defendant not liable
Defendant responsible for ordinary operations of
nature, not something against her miracles.
 Kallulal v Hemchand
The wall of a building collapsed on a day
when there was a rainfall of 2.66 inches.
That resulted in the death of the
respondent’s two children. The court held
that the Appellant could not take the
defence of Act of God. Held liable.
 State of Mysore v. Ramachandra
State constructed reservoir to have drinking water facilities for
villages of Nipani
It was partially constructed and left incomplete
Sudden overf lo w of water from reservoir destroyed plaintiff’s
land and crops
Plaintiff filed a suit for damages
State had two grounds of defence a) Act of God and b) Act of
State in its sovereign authority
Court rejected both grounds and held state liable
T. Gajayalakshmi Thayumanavar v. Secretary, PWD, Govt. of
T.N.
Deceased, cycle rider was going on his way, where he was
electrocuted.
The electrocution was due to the falling of an overhead
electric wire running across the street
The death happened due to the poor maintenance by EB
EB claimed that it was unexpected accident due to rain
and wind and it is an act of god
Court rejected and held liable on the ground of negligence