Introduction: Defences Against Tortious Liability | Law of Torts - CLAT PG PDF Download

Defences Against Tortious Liability

Sometimes, an act that would normally be considered wrong can be justified or excused under certain conditions. These conditions can be divided into two categories:

1. Specific Defences:

• These defences apply to specific torts. For example, truth and fair comment are defences only for the tort of defamation.

2. General Defences:

• These defences apply to all types of torts equally. For instance, the defence of consent can excuse any tort.

A 'defence' is a reason that the defendant uses to avoid or lessen their liability. Defences in tort cases can be categorized as:

• General Defences: These defences are not dependent on the nature of the tort and are available in all types of torts.
• Special Defences: These defences are specific to the nature of the tort and are only applicable to that particular tort.

General Exceptions or Defences in Torts

General exceptions or defences in torts include:

• Consent or Leave and Licence (Volenti non fit injuria): This defence applies when the injured party voluntarily agrees to the risk or harm.
• Act of God: This defence is used when an event caused by natural forces, such as a flood or earthquake, makes the act excusable.
• Inevitable Accident: This defence applies when an accident occurs that could not have been avoided despite taking all reasonable precautions.
• Necessity: This defence is applicable when an act is done out of necessity to prevent greater harm.
• Private Defence: This defence is used when an act is done to protect oneself or others from immediate harm.

Volenti Non Fit Injuria (Consent or Leave and Licence)

• The maxim is based on the principle of common sense.
• If someone is invited into a house, they cannot be sued for trespass because their entry is consented to.
• However, if a guest enters a restricted area, like a bedroom, without permission, they can be sued for trespass.
• A postman delivering mail is also protected from trespass as long as he stays within permissible limits.
• Consent can be either express or implied.
• In the case of Dr. Laxman Balkrishan v Trimbak Bapu, the Supreme Court ruled that a doctor can be held liable for negligence during an operation even if the patient consented, as in the case where improper care during anesthesia led to the patient's death.

Essential Conditions of the Doctrine of Volenti Non Fit Injuria

• Consent must be freely given: The consent should be given freely without any coercion, fraud, misrepresentation, or mistake.
• In the case of White v Blackmore, the court held that the plaintiffs husband had paid for their admission to a car race. When a car became entangled in the safety rope during the race, the plaintiff was thrown about twenty feet and subsequently died. The court ruled that the consent was not freely given in this situation.

Exceptions to the Rule of Volenti Non Fit Injuria

The rule of volenti non fit injuria, which states that a person who voluntarily accepts a risk cannot claim for injury, has certain exceptions where the rule may not apply. These exceptions include:

1) Employment Relations

• In employment situations, an employee who raises concerns about unsafe practices but continues to work may not be considered to have voluntarily waived their legal rights.
• The employee's continued presence at work does not imply consent to the risks involved.

2) Rescue Cases

• In cases where individuals undertake a rescue operation, the principle of volenti non fit injuria may not apply.
• Those involved in rescue efforts are often not seen as voluntarily accepting the risks associated with the rescue.

3) Drunk Drivers

• When it comes to drunk drivers, the rule of volenti non fit injuria may not be applicable.
• Drunk drivers may not have the capacity to fully understand or accept the risks involved in their actions, making the application of the rule questionable.

Smith v. Charles Baker & Co.

• In this case, the plaintiff was injured while working on a construction site. His job was to hold a drill in place while two other workers took turns hitting it with a hammer.
• Nearby, another group of workers was removing stones and placing them into a steam crane, which swung over the area where the plaintiff was working. The plaintiff was struck on the head by a falling stone that had come loose from the crane.
• The defendant, Charles Baker & Co., argued that the plaintiff was aware of the dangers involved in the work and had even complained about it but continued anyway. This argument is known as volenti non fit injuria, which means that a person cannot claim damages if they willingly accepted the risk.
• However, the court ruled that while the plaintiff might have been aware of the risks, he did not consent to the lack of care in the working conditions. As a result, he was entitled to receive damages for his injury.

Rescue Cases

• In legal cases involving rescues, the principle of assumption of risk does not apply when a plaintiff acts to mitigate a situation caused by the defendant's wrongful actions. If a plaintiff deliberately and consciously faces a risk, even life-threatening, to save another person from imminent danger of injury or death, the defense of leave and license does not pertain to the plaintiff, regardless of whether the endangered person is a family member or a stranger.
• Courts are generally hesitant to criticize the actions of rescuers for policy reasons. A rescuer is not considered to be acting voluntarily if:
• a. The rescuer is trying to save individuals or property at risk due to the defendant's negligence.
• b. The rescuer is compelled by a legal, social, or moral obligation.
• c. The rescuer's actions are reasonable and a natural outcome of the defendant's negligence.

Haynes v. Harwood

• In the case of Haynes v. Harwood, the defendant was negligent in leaving his horses unattended in a busy street. When a boy threw a stone at the horses, they bolted, creating a dangerous situation. The plaintiff, a constable on duty, noticed the threat to public safety and rushed out to stop the horses, but in doing so, he sustained serious injuries.
• The court ruled that the plaintiff was entitled to claim damages because the defendant's actions were grossly negligent. Additionally, it was determined that the defense of volenti non fit injuria did not apply in rescue scenarios. The involvement of a third party and the plaintiff voluntarily undertaking the risk were also considered.

In summary, the key points from the case of Haynes v. Harwood highlight the principles of negligence, the applicability of legal defenses in rescue situations, and the responsibilities of individuals in maintaining safety in public spaces.

Drunk Drivers

• When it comes to drunk drivers, the legal principle of volenti non fit injuria may not be relevant.
• Drunk drivers might lack the ability to fully comprehend or accept the risks associated with their actions, which raises questions about the applicability of this principle.

Drunk Drivers

When it comes to drunk drivers, the legal principle of volenti non fit injuria may not be relevant. This is because drunk drivers might lack the ability to fully comprehend or accept the risks associated with their actions, raising questions about the applicability of this principle.

Case Examples

• Baker v. T. E. Hokins and Sons: In this case, Dr. Baker attempted to rescue two workmen overcome by petrol fumes in a well due to the employer's negligence. Despite being advised against entering the well, Dr. Baker chose to proceed and unfortunately died from the fumes. His widow sued the employer for compensation. The defendants argued volenti non fit injuria, but the court held that Dr. Baker's actions were a foreseeable consequence of the defendant's negligence, making the defendants liable.
• Dr. J. N. Srivastava v. Ram Bihari Lal and Others: In this case, a doctor opened a patient's abdomen and found the appendix to be healthy but identified the need to operate on the gallbladder. The patient later died, and the court ruled that seeking consent for the gallbladder operation was not feasible. The doctor was not held responsible in such circumstances. However, if there is no genuine need to rescue, the claimant may be considered volens.
• Cutler v. United Dairies: A man who was injured while trying to restrain a horse was deemed volens because there was no immediate danger to human life, and he was not under any compelling obligation to act.
• Dann v. Hamilton: In this case, the plaintiff was injured as a willing passenger in a car driven by Mr. Hamilton, who had been drinking. The car was involved in a serious accident that resulted in Mr. Hamilton's death. The defendant raised the defense of volenti non fit injuria, claiming that the plaintiff had voluntarily accepted the risk by accepting the lift despite knowing of Mr. Hamilton's drunken condition. However, the defense was rejected, and the plaintiff was entitled to damages.
• Drunk Drivers: When it comes to drunk drivers, the legal principle of volenti non fit injuria may not be relevant. Drunk drivers might lack the ability to fully comprehend or accept the risks associated with their actions, raising questions about the applicability of this principle.

Volenti Non Fit Injuria

This legal principle translates to "to a willing person, no injury is done." It implies that if an individual willingly and knowingly accepts the risks involved in an activity, they may not be entitled to claim damages for any injuries sustained during that activity.

Case Example: Morris v. Murray

• Background: The claimant and defendant had been drinking throughout the day. The defendant, who possessed a pilot's license, proposed a flight in his light aircraft. The claimant agreed and drove them to the airfield.
• Incident: After starting the engine, the defendant took off, but the aircraft crashed shortly after, resulting in the defendant's death and the claimant's serious injuries. An autopsy revealed the defendant's high level of intoxication.
• Legal Action: In a negligence claim, the defendant's estate raised the defense of volenti non fit injuria.
• Outcome: The defense was upheld. The court determined that the claimant, by accepting a flight from an obviously intoxicated pilot, had voluntarily accepted the risk of injury and waived the right to compensation.