DEFENSES IN TORT LAW

VOLENTI NON FIT INJURIA (not applicable in negligence):

Means voluntary assumption of risk
Harm suffered voluntarily does not constitute legal injury
Consent:
a) Must be either implied or expressed
Case: Illot v. Wilkes (1820)- trespasser enters defendants property,
gets hurt by spring guns, defendant claims a case of implied consent.
b) Consent must be freely given, that is, not obtained by fraud,
misrepresentation or coercion.
c) In absence of full knowledge of facts, consent cannot be said to be
given.
Case: Burnett v British Waterways (1973)- plaint was working on a
barrage, faulty rope snaps, injuring him. Court held that this case
involves absence of full knowledge of facts.- so no VNFI excuse.
In case of sporting events Volenti is a valid defense for defendants only
when :
a) The game is played according to its rules
b) The players must be competent.
In case the two requisites are met the implied consent of the
spectators is generally presumed
Case: Woolridge v. Sumner (1963)- horse race, photographer injured,
court held Volenti applicable.
Knowledge of risk is not the same as consent to run the risk
Case: Smith v. Baker and sons (1891)- plaintiff who is a stone carrier is
injured when a crane carrying stones breaks, defendants plead Volenti,
court held that knowledge does not imply consent
Firemans rule
Limitations :
a) NegligenceCase: (i) Dann v Hamilton (1939) (Page 115 of module)- plaintiff knew
driver was drunk, still court allowed claiming of damages in this case
there was negligence on part of defendant by breaching a primary duty
of care.
b) Impulsive Rescue cases
Case: Haynes v Harwood (1935)- defendant left horse drawn carriage
unattended on a road, passerby threw stones at the horses, horses
started to trot off in the process injuring a lady, a policeman in process
of rescuing the lady got injured himself, court held that defense of
Volenti not applicable in this case. Court also held that:
- Rescuer acts under impulse and does not necessarily exercise the
freedom of choice which is an essential element of Volenti
- Injury is caused by the defendants act which precedes the
plaintiffs act and the plaintiff did not give consent to assume the
risk stemming out of the defendants act.

c) Conduct of defendant is unreasonable or disproportionate

Case: Lane v Holloway (1968)
Small scuffle between an elderly person and a young man, elderly man
strikes a small blow, while the younger person strikes a massive blow,
severely injuring the elderly man. Court held the defendants act as
disproportionate, Volenti unacceptable.

INEVITABLE ACCIDENT
Means an unavoidable accident, that is, something which could not be
possibly prevented by exercise of ordinary skill
Inevitable does NOT imply something which is absolutely unavoidable, but
something not unavoidable by such precautions as a reasonable man
doing the act would be expected to take.
Inevitable accident was a good defense earlier in cases where the burden
of proving reasonability is on the defendants
But in most torts today, like negligence, trespass, the burden of proof is on
the claimant. In negligence cases, it is the claimant who shows that there
is a breach of duty of care. Hence where there is negligence, strict
liability and trespass defense of inevitable accident does not apply.
Cases:
a) Brown v Kendall dogs wala case (1859)- plaintiff and defendants
dogs were fighting. In trying to separate them defendant hit plaintiffs
eye. Court held the defense of inevitable accident applicable.
b) Stanley v Powell (1891)- plaintiff and defendant went hunting.
Defendants shot hits the tree, bounces off and injures the defendant.
Inevitable accident held applicable by court. Here Volenti would also
have been applicable as it is a sporting event.
c) Nitroglycerine case (1872)
Inevitable accident is applicable when the event concerned has its origins in
some agency of man and not in the forces of nature- vis major.
ACT OF GOD (VIS MAJOR)
Applicable where the event causing damage is occasioned by natural causes
without human intervention
The event is such that the possibility of such event cannot be recognized by
using reasonable care and foresight
Examples-sudden storm, sudden flood, extraordinary torrential downpour
In order that a phenomenon must fall within act of god, it is not necessary
that it should be unique or that it should happen for the first time, it is
enough that the event is extraordinary and cannot be predicted reasonably
anticipated or controlled
Vis major to be a defense must be the direct and proximate cause of injury
not merely one of the causes
CASES:

a) Slater v. Worthingtons Cash Stores (1941)- severe snow storm resulted

in the accumulation of snow on the roof of the defendants shop, snow
falls on plaintiff who then sued for negligence and nuisance, act of god
used as a defense, but court held this to be a case of negligence on the
defendants part.
b) Nicholas v. Marsland artificial lakes overflow into plaintiffs land.
(1876) Defendants artificial lakes overflow due to extraordinary rainfall
into the plaintiffs property. Court held that all reasonable precautions
being taken this was an Act of God.
c) Greenock Corporation v. Caladonian Railways (1917)- Defendants
constructs artificial pool of children by changing the course of a
stream, overflowing occurs, court held that reasonable care could have
been taken the low lying areas wouldnt have been affected, so Act of
God NOT applicable

4. PRIVATE DEFENSE
Reasonable defense of oneself(extends to ones dependents ,your
neighbour, employee) and ones property negates liability in tort
Allowed to the extent of prevention of injury not redressal
The act of self protection must be proportional to the harm threatened
(Lane v Holloway)
One is not bound to wait till the harm actually happens. Action can be
taken on the basis of apprehension provided such apprehension is
reasonable and the threat is an imminent, immediate threat
With respect to property :actual possession or right to possession is
necessary to justify force in keeping out a trespasser
Case: Holmes v Bagge - The claimant and the defendant were

both members of a cricket club. During the match defendant asked

the claimant a spectator to act as a substitute for one of the
players. But during the match the defendant rudely asked the
claimant to remove his coat which he refused. The claimants
neither removed his coat nor leave the field. The defendant
forcefully removed the claimant. The defendant when sued for
assault pleaded possession of ground but the plea was rejected as
the possession of land was in the committee of the club.
5. EX TURPI CAUSA NON ORITOR ACTIO
There are cases in tort where the claimant has a prima facie claim
but the court finds that his wrongful conduct bars him from remedy.
This is based on the maxim Ex turpi causa non oritor actio which
means that out of a wrongful cause an action does not lie or no

court will lend its ear to a person found guilty of an illegal act
himself
A plaintiff is not disabled from recovering damage by reason of him
being a wrongdoer unless some unlawful act is connected with the
harm suffered as part of the same transaction.
Not every illegal act bases a claim, the difficulty lies in assessing
the circumstances where illegality might base a claim. Some of the
yardsticks are :
i)
Proportionality
Case: Revill v. Newberry (1996)- elderly man shoots a burglar
who is hurt grievously, on the basis of proportion court holds
that this cannot be based on ex turpi.
ii)
Relative moral culpability (courts pay attention to mental
element)
Case: Saunders v. Edwards (1987) (Refer to Winfield and
Street)- held that
The plaintiff had a claim against the defendant for
misrepresentation
The defendants moral culpability greatly outweighed that of the
plaintiff
iii)

Public conscience and Public policy when awarding

damages against the claimant would go against public policy
affront public conscience
Case: A) Pitts v Hunt (1991)- defendant was eighteen,
drunk, without a drivers license and did not know driving.
Plaintiff was fifteen, pillion rider in this case. On occurrence of
an accident plaint sues defendant. In court 2 judges say that
it is against public policy and conscience. Third judge says
there is no standard of care that can be
concluded.------------------ where the claimant was a passenger on
a motor cycle knowing that the driver was drunk, uninsured, and
without a current licence. The defendant negligently collided with
another vehicle, killing himself and injuring the passenger. Dillon
LJ. dismissed the claim on the ground of ex turpi causa because
there was a joint common purpose. This is a public policy test of
"public conscience" because the claimant might otherwise benefit
from the unlawful behaviour willingly undertaken.
B) Kirkham v Chief Constable of Manchester Police (1990)
plaints husband is mentally disturbed and she informed the
police that he had suicidal tendencies. Police took him in
custody; the woman reiterated his mental state. Husband
committed suicide. The police raised the defense of ex turpi.
Court denies the defense and states that it would affront
public conscience if the damages were not awarded.

6. NECESSITY (refer to Winfield and R & D as well)

Based on the principle that necessity knows no law or salus populi
suprema lex which means welfare of the people is supreme law
Necessity may be public and private
It differs from private defense because in necessity there is no harm
inflicted on the plaintiff and no provocation by the defendant
conduct. Secondly the measures taken in necessity may not be for
the protection of ones own self or property but can entirely for the
good of society
Necessity would negate liability in Tort provided that such necessity
does not arise from the defendants own negligence.
It is limited to urgent situation of imminent peril that is, destroying
property to prevent from speeding, throwing goods overboard to
prevent ship from sinking.
Measures taken must be reasonable and must be taken when life or
property actually is or appears to be on danger.- Kirk v. Gregory
(1876)
Justification would depend upon the state of things at the moment.
Though subsequent events may show that the interference was not
necessary.
Case: Cope v. Sharpe (1911)
Homelessness cannot be considered to be necessity under English
law in trespass cases. But with regard to Indian law the case of Olga
Tellis leaves open the question whether necessity can be used as a
defense when the government has failed to give you shelter.
7. STATUTORY AUTHORITY (power given by a statute)
If legislature authorizes the doing of an act no cause of action can
be maintained even if the act without authorization would be
wrong.
This is based on the principle that no court can treat as wrong
what the legislature has authorized
The remedy if provided is in the form of compensation provided by
the legislature, not otherwise
The legislature authorizes such an invasion of private rights , so to
speak, for the greater good
Powers of the legislature should be exercised with due care and
caution. The damage should be an inevitable sequence.
If the damage could be prevented by reasonable exercise of the
powers conferred, then statutory authority will not be a defense.
When terms of the statute are not mandatory but are permissive,
then the presumption is that such powers should be exercised in
conformity with private rights.