General defenses in Tort

Volenti non fit injuria, or the defenses of Consent.

When a person consents for infliction of an harm upon himself, he has no remedy for that in Tort. That means, if a person has consented to do something or has given permission to another to do certain thing, and if he is injured because of that, he cannot claim damages. For example, A purchases tickets for a Car race and while watching the race, an collision of cars happens and the person is injured. Here, by agreeing to watching the race, which is a risky sport,it is assumed that he voluntarily took on the risk of being hurt in an accident. Thus, he cannot claim compensation for the injury. Such a consent may be implied or express. For example, a person practicing the sport of Fencing with another, impliedly consents to the injury that might happen while playing.

In Woolridge vs Sumner 1963, the plaintiff a photographer was taking photographs at a horse show, during which one horse rounded the bend too fast. As the horse galloped furiously, the plaintiff was frightened and he fell in the course. He was seriously injured. It was held that the defendants had taken proper care in closing the course and the plaintiff, by being in the show, agreed to take the risk of such an accident. The defendants were not held liable.

However, the action causing harm must not go beyond the limit of what has been consented. For example, in a sport of fencing, a person consents to an injruy that happens while playing by the rules. If he is injured due to an action that violates the rules, he can claim compensation because he never consented to an injury while playing without rules. In Laxmi Rajan vs Malar Hospital 1998, a woman consented for a surgery to remove a lump from her breast. But the hospital removed her uterus as well without any genuine reason. It was held that removing of her uterus exceed beyond what she had consented for.

Also, the consent must be free. It must not be because of any compulsion. Thus, if a servant was compelled by the master to do a certain task despite his protests, and if he is injured while doing it, the master cannot take the defence of volenti non fit injuria because the consent was not free.

Exceptions - In the following conditions, this defence cannot be taken even if the plaintiff has consented -

Rescue Conditions - When the plaintiff sufferes injury while saving someone. For example, A’s horse is out of control and is galloping towards a busy street. B realizes that if the horse reaches the street it will hurt many people and so he bravely goes and control’s the horse. He is injured in doing so and sue’s A. Here A cannot take the defence that B did that act upon his own consent. It is considered as a just action in public interest and the society should reward it instead of preventing him from getting compensation.
Unfair Contract Terms - Where the terms of a contract are unfair, the defendant cannot take this defence. For example, even if a laundry, by contract, absolves itself of all liability for damage to clothes, a person can claim compensation because the contract is unfair to the consumers.

Detailed note on Volenti non fit injuria

Plaintiff the wrong doer.

A person cannot take advantage of his own wrong. This principle has been in use since a long time as it is just and equitable. For example, a person trespassing one another’s property is injured due to darkness. He cannot claim compensation because he was injured due to an action which was wrong on his part. However, this defence exists only if the injury happens because of a wrongful act of the plaintiff. It does not exist if the injury happens because of a wrongful act of the defendant even if the plaintiff was doing a wrongful but unrelated act. For example, in Bird vs Holbrook 1828, the plaintiff was trespassing on the defendant’s property and he was hurt due to a springgun. The defendant had put spring guns without any notice and was thus held liable.

Inevitable Accident

Accident means an unexpected occurance of something that could not have been predicted or prevented. In such a case, the defendants will not be liable if they had no intention to cause it and if the plaintiff is injured because of it. For example, in Stanley vs Powell 1891, the plaintiff and the defendant were members of a shooting party. The defendant shot a bird but the bulled ricocheted off a tree and hit the plaintiff. The defendant was not held liable because it was an accident and the defendant did not intent it and could neither have prevented it.

However, the defence of Inevitable Accident is not a license to negligence. For example, A has hired B’s car. While driving, one of the tires bursts and causes accident injuring A. Here, if the tires were worn out and were in bad condition, it would be negligence of B and he would be held liable for A’s injuries.

Act of God

An act of God in a legal sense is an extraordinary occurance of circumstance which could not have been predicted or prevented and happens because of natural causes. Nobody can predict, prevent, or protect from a natural disaster such an an earthquake or flood. Thus, it is unreasonable to expect a person to be liable for damages caused by such acts of God. There are two essential condtions for this defence - the event must be due to a natural cause and it must be extraordinary or some thing that could not have been anticipated or expected. For example, heavy rains in the monsoon are expected and if a wall falls and injures someone, it cannot be termed an act of god because protection for such expected conditions should have been taken. But if a building falls due to a massive earhquake and injures and kills people, this defence can be used. In Ramalinga Nadar vs Narayan Reddiar AIR 1971, it was held that criminal activities of an unruly mob is not an act of God.

Private Defense

As per section 96 of IPC, nothing is an offence that is done in exercise of the right of private defence. Thus, law permits the use of reasonable and necessary force in preventing harm to human body or property and injuries caused by the use of such force are not actionable. However, the force must be reasonable and not excessive. In Bird vs Hollbrook 1892, the defendant used spring guns in his property without notice. It was held that he used excessive force and so was liable for plaintiff’s injury even though the plaintiff was trespassing on his property.

Mistake

Generally, mistake is not a valid defence against an action of tort. Thus, hurting a person under the mistaken belief that he is trespassing on your property, will not be defensible. However, in certain cases, it could be a valid defence. For example, in the case of malicious prosecution, it is necessary to prove that the defendant acted maliciously and without a reasonable cause. If the prosecution was done only by mistake, it is not actionable. Further, honest belief in the truth of a statement is a defence against an action for deceit.

Necessity

If the act causing damage is done to prevent a greater harm, it is excusable. For example, a Ship ran over a small boat hurting 2 people in order to prevent collision with another ship which would have hurt hundreds of people is excusable. Thus, in Leigh vs Gladstone 1909, force feeding of a hunger striking prisoner to save her was held to be a good defence to an action for battery.

Statutory authority

An act that is approved by the legislature or is done upon the direction of the legislature is excused from tortious liability even though in a normal circumstances, it would have been 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 except that is prescribed by the statute. In Vaughan vs Taff Valde Rail Co 1860, sparks from an engine caused fire in appellant’s woods that existed in his land adjoining the railway track. It was held that since the company was authorized to run the railway and since the company had taken proper care in running the railway, it was not liable for the damage.