SPECIFIC DEFENSES: LAW OF TORTS9 min read

-MUKESH M.




  • Volunti Non-Fit Injuria
  • Act Of God
  • Inevitable Accident
  • Necessity 

The consent given by a person upon himself to inflict harm gives no remedy for that person in the tort. It is known as volenti non-fit injuria. As per these defenses, the plaintiff himself is giving consent to the harm inflicted upon himself. When a person voluntarily abandoned or waived his right he cannot claim the enforcement of it. 

In the case of Hall v. Brooklands, auto racing club the plaintiff was a spectator at a motor car race on high track owned by the defendant company. During the race there was a collision between two cars one of which was thrown on the spectator thereby causing him injury. It was held that it is volenti non fit injuria that the spectator for amusement give consent to see the race and he impliedly took the risk of injury. The consent given by a person upon himself to inflict harm gives no remedy for that person in the torts is known as volenti non-fit injuria.

Padmavati v Dugganaika. in this case the driver would have given lift to strangers. But in course of the driving the Bolt of the tyre of the car get toppled leading to an accident causing injury for the plaintiff. It was held that it is voluntary non fit injuria and the defendant is not liable. 

Wooldrige v. Sumner. In this case, the plaintiff was a photographer who wanted to take photographs of horse which are racing. He stood in the arena conveniently to take the photographs of the horse. But one of the horses while running round the bend so fast and furiously galloped. As a result of which the plaintiff suddenly got afraid and fell outside the arena into the racing track. He was seriously injured. In a lawsuit it was held that the defendant the owner of the house was not liable because it was volenti non fit injuria.

The defenses of voluntary non fit injuria was successfully pleaded in the case of Thomas v Quartermaine.  The employee in the defendant’s brewery was trying to pull a lid of a boiling vat in which there was scaling liquid. The lid was struck and so the plaintiff pulled it with extra effort resulting in it coming off suddenly and the plaintifffell into the cooling vat. In a lawsuit it was held that it is volenti non-fit injuria under the torts. And the defendant is not liable for the same.

Consent is an important element. The consent obtained by a person must be free. If it is found that the person was in any duress of circumstances to give the consent then it is not valid under the tort. When a person gets consent to enter into your house you cannot sue them for trespass. But if they enter any premises for which they have not got any permission then they cannot avail consent as a defence.  Lakshmi Rajan V Malar hospital Limited., In this case married women of age 40 would have developed a painful lump in her breasts. Though the lump had no effect on her uterus during the surgery her uterus was removed. It was held that the opposite party the hospital was liable for the deficiency of service. It was also held that the patients concern for the surgery does not imply the consent for the removal of the uterus according to the torts.

Consent obtained by fraud is no defenses. In the case of R. v. Williams

the accused is a music teacher, who was found to be guilty of rape 

of his student with whom she had intercourse under the pretence that the Act was to improve her voice. Therefore it was held that consent obtained by fraud is no defence.The consent should not be under compulsion.

Act of God. 

It is a defenses of involvement of natural forces resulting in the commitment of a tort by a party. Act of God is also an inevitable accident but the difference is that the loss is occurred due to the involvement of the natural forces in it. Heavy rainfall, storms, Tides, and volcanic eruptions. When there is an extraordinary occurrence of circumstances that could have not been foreseen and guarded against and the natural cause exclusively without human intervention into it, it amounts to an act of God under the Law of Torts, defenses, defenses, defenses.

Essentials of Defence of act of God. 

There must be working of natural forces. The occurrence must be extraordinary and one which could not be force seen for efforts to take to prevent the harm caused by it. The working of the natural forces. 

In the case of Ramalinga Nadar V Narayan Reddiar, the robbery committed by unruly mob in the defendant’s lory resulting in a big injury to the plaintiff was held that no act of God. It was observed by the court that it is an inevitable accident because the involvement of robbery has got to do with human intervention which may be guarded against by another human. 

In the case of Nichols V Marsland, the defenses of act of God was successfully pleaded. In this case the plaintiff would have developed an artificial lake, the embankments of which would have broken by and extraordinarily heavy rainfall which was the first in the human memory. Thus the defendant was not liable for the rush of water that give away four bridges. The consent given by a person upon himself to inflict harm gives no remedy for that person in the torts is known as volenti non-fit injuria.

Inevitable accident.  

The accident is an unexpected injury that could have not been foreseen or avoided by reasonable circumstances or reasonable care taken on the part of the defendant. The duty owed by a person is the duty of care rather than a duty of skill as in the torts. 

In the case of Assam state Corporation extra Federation Limited., v Anubha Sinha, the defendant was a tenant who was living in the house of the owner. The tenant asked for the repair of electric circuits in her home which the owner fail to do. On a certain day there was a fire resulting out of short circuit electric problem in the house which inflicted injury on the owner. It was held that it is an inevitable accident and no one could have foreseen it, and therefore the defendant is not liable for negligence.

In the case of Shridhar Tiwari v. Uttar Pradesh State Road Transport Corporation. In this case while a bus belonging to the corporation reached a village a cycle suddenly came in front of the bus. It had rained and therefore the road was wet. The driver suddenly put break on seeing the cyclist and the bus skidded on the road and caused a skid on the portion of a bus coming from the opposite direction. It was held that it was an inevitable accident because even when the driver took reasonable measures to prevent it was still inevitable in the case of torts. In the case of Holmes v. Mather, the defendant was driving his horses in a public Highway the horses suddenly become unmanageable after seeing the barking of the dog and in spite of due care was taken by the defendant there was injury infected by the horse on the plaintiff. it was held that it is an inevitable accident.

In the case of Vendatacharya, v. Highways department of South Arcot,  the Supreme Court reversed the judgment of the High Court saying that it is not an inevitable accident that culvert give away by the entry of water in terrible velocity resulted by the breach of the nearby lake which caused by rain for the last 15 days as the report of the engineer disclosed that the culvert was sound a day before with a normal traffic. 

Necessity.

An act causing damage if not done would result in a greater evil is not actionable even though it was caused intentionally.

For example captain of the ship throws some goods from the ship to lighten the ship for saving it from drowning to save the persons living in the ship. It is necessary to know the difference between necessity and private defense which is very important. In a private defenses the plaintiff himself is a wrong doer. Whereas in necessity the plaintiff is an innocent in the Law of Torts. 

For example it is not actionable to pull someone from water who is drowning in it and if competent surgery on performed operation on an unconscious person to save his life. 

The case of Leigh v. Gladstone, it was held that forcefully feeding a person who is hunger striking prisoner to save his life was held to be done in good defence of action for battery as necessity. In the case of Cope v Sharpe, it was held that a person entering into the premises of other person to prevent the spread of Fire to his premises was not a tort to which he is not liable of trespass since it was done as a necessity.It is also important that if the Act was committed without the necessity. It would not amount to the providing of the necessity as a defence even though that was committed in good faith. For example in the case of Carter v. Thomas,  the defendant was held liable when he entered into the premises to put off the fire where the fire workers were already working and was not provided with the defence of necessity since there was no necessity of the commitment of the act by the defendant.

In the case of Kirk v. Gregory, when a person is dead and her sister-in-law removed the jewels of the other person and moved it to an another room considered it to be safe. But the executives of the person sued her for the unnecessary trespass of the jewels to another room. It was held that she was liable for trespass of the jewels since there was no necessity for the removal of jewels from the dead person.