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DR.

RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

LUCKNOW

LAW OF TORTS-I

PROJECT ON:

STUDY ON DEFENCES TO NEGLIGENCE

SUBMITTED TO: SUBMITTED BY:


MRS. GITU SINGH AKSHITA GUPTA

ASSISTANT PROFESSOR R.No.: 011

Dr. RMLNLU B.A.LL.B.(Hons.)- I sem

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ACKNOWLEDGEMENT
It is a great enthusiasm of satisfaction and a matter of privilege to work on a project of law of torts. I
express my deep gratitude to my teacher Mrs. Gitu Singh. She helped me to understand and remember
important details of the project work. I am thankful to the honourable Vice Chancellor, Prof. Gurdeep
Singh and the Dean (Academics), Prof (Dr.) C.M. Jariwala, who provided me all possible resources for the
successful completion of this project. Without their guidelines, the project would not have worked
successfully and effectively. At last but not the least, I am thankful to my parents and friends who
encouraged and motivated me to make the best possible efforts for the completion of this project.

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TABLE OF CONTENTS
Introduction…………………………………………………………………………………………………04

Introduction to negligence…..…………………………………………………………………………..05-06

Defences available

Volenti non fit injuria……………………………………………………………………………07-08

Contributory negligence…………………………………………………………………………09-10

Inevitable accident………………………………………………………………………………11-12

Conclusion…………………………………………………………………………………………………..13

Bibliography………………………………………………………………………………………………...14

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INTRODUCTION
Negligence is defined as the failure to exercise the care that a reasonably prudent person would exercise in
like circumstances. It implies the existence of a legal duty to take care owed to the plaintiff which duty
exists in general where there is such proximity between two persons that a want of care on the part of the
one is likely to affect the other injuriously, a failure to exercise the standard of care deemed right in the
circumstances which is normally defined as reasonable care.

Once sued for negligence, a person can escape liability by availing various defences like act of god,
inevitable accident, act of third party, common benefit, plaintiff’s own fault, voluntary assumption of risk,
necessity, plaintiff’s consent, contributory negligence, etc.

For the tort of negligence, it is very difficult to establish a defence. Whether there are any successful and
complete defences to negligence has always been a debatable topic. It is difficult for the defendant to
escape liability completely.

This project basically takes a glance at the scope of three defences and tries to prove whether they can be
taken as a defence for a case of negligence. The three defences are: Volenti non fit injuria, inevitable
accident and contributory negligence.

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INTRODUCTION TO NEGLIGENCE
Negligence is the breach of duty caused by the omission to do something which a reasonable man, guided
by those considerations which ordinarily regulate the conduct of human affairs would do, or doing
something which a prudent or reasonable man would not do.1 The definition involves three constituents of
negligence:

a) A legal duty to exercise due care on the part of the party complained of towards the party
complaining the former’s conduct within the scope of duty
b) Breach of the said duty
c) Consequential damage
In legal usage, negligence signifies the failure to exercise the standard of care which the doer as a
reasonable man should, by law, have exercised in the circumstances; if there is no legal duty to take care,
lack of care has no legal consequences. It is the breach of duty caused by the omission to do something
which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human
affairs would do, or doing something which a prudent and reasonable man would not do.2 In an action for
negligence, the plaintiff has to prove the following essentials:
a) That the defendant owed duty of care to the plaintiff;
b) The defendant made a breach of that duty;
c) The plaintiff suffered damage as a consequence thereof.3
Occurrence of damage is the starting point for cause of action.
Negligence can be used for the purpose of fastening the defendant with liability under the Civil law and, at
times, under the criminal law as well. In tort, it is the amount of damages that mainly matters but in the
case of criminal law, it is not the amount of damages but the amount and degree of negligence that is
determinative of liability. The court in Jacob Mathew v. State of Punjab4 observed that, “to fasten liability
in criminal law, the degree of negligence has to be higher than that of negligence enough to fasten liability
in civil law. The essential ingredient of mens rea cannot be excluded from consideration when the charge
in a criminal court consists of criminal negligence.”
To establish negligence on the part of the defendant, first the plaintiff has to prove that the defendant owed
a duty of care towards the plaintiff. Lord Atkin in Donoghue v. Stevenson, laid out a principle related to
duty of care, “You must take reasonable care to avoid acts or omissions which you can reasonably foresee
would be likely to injure your neighbour.” Here he defined neighbour as “persons so closely and directly

1
Jacob Mathew v. State of Punjab and another, AIR 2005 SC 3180
2
Blyth v. Birmingham Waterworks Co., (1856) 11 Ex 781
3
Poonam Verma v. Ashwin Patel, AIR 1996 SC 2111
4
AIR 2005 SC 3180
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affected by my act that I ought reasonably to have them in contemplation as being so affected when I am
directing my mind to the acts or omissions which are called in question.”
Whether the defendant owes a duty of care to the plaintiff or not depends on the reasonable foreseeability
of the injury to the plaintiff. If at the time of act or omission, the defendant could reasonably foresee injury
to the plaintiff, he owes a duty to prevent that injury and failure to do that makes him liable. Duty to take
care is the duty to avoid doing or omitting to do anything, the doing or omitting to do which may have as
its reasonable and probable consequence injury to others, and the duty is owed to those to whom injury
may reasonably and probably be anticipated if the duty if not observed.5
Secondly, there should be a breach of this duty in order to establish negligence. The standard of care
required is that of a reasonable man or of an ordinarily prudent man. If the defendant has acted like a
reasonably prudent man, there is no negligence.
Thirdly, it is also necessary that the defendant’s breach of duty must cause damage to the plaintiff. The
court has to decide and determine every question which would ultimately enable the parties to obtain final
judgements in case in question, such as proper measure of damages to be applied, remoteness of damages
and the amount which the plaintiff has actually entitled to as damages.6

5
Bourhill v. Young, (1943) AC 92
6
Shaikh Gafoor v. State of Maharashtra, AIR 2002 Bom. 1637
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DEFENCES AVAILABLE
When the plaintiff brings an action against the defendant for negligence, providing all the essentials of
negligence, the defendant would be liable for the same. The defendant may however, even in such case
avoid his liability by taking the plea of some defence. There are some general defences which can be taken
into account against action for the wrong of negligence:
 Volenti Non fit Injuria AS A DEFENCE
 CONTRIBUTORY NEGLIGENCE AS A DEFENCE
 INEVITABLE ACCIDENT AS A DEFENCE

VOLENTI NON FIT INJURIA


When a person contends to the infliction of some harm upon himself, he has no remedy for that in tort. 7 In
case, if the plaintiff voluntarily agrees to suffer some harm, expressly or impliedly, then he is not allowed
to complain for that and his consent works as a good defence against him. No man can enforce a right
which he has voluntarily waived or abandoned.8 Harm suffered voluntarily does not constitute a legal
injury and is not actionable. The maxim presupposes a tortious act by the defendant. 9Many a time, the
consent maybe implied or inferred from the conduct of the parties. For example, if a person is moving on
the highway, he has impliedly consented to accidents.10 For the defence of consent to be available, the act
of causing harm must not go beyond what is consented. It is necessary to show that the consent to the act
done by the defendant was free. Moreover, the act done by the defendant must be the same for which the
consent has been given. For example, in the case of Lakshmi Rajan v. Malar Hospital ltd., 11 the
complainant was a married woman aged 40 years who had a painful lump on her breast but it did not have
any effect on the uterus. During surgery, her uterus was removed without any justification. So, it was held
by the court that the hospital is liable for deficiency in service. The element of fraud or compulsion should
not be present in obtaining this consent.
To cover the cases of negligence, the defence on the basis of this maxim must be based on implied
agreement whether amounting to contract or not.12 The defence is available only when the plaintiff freely
and voluntarily, with full knowledge of the nature and extent of the risk impliedly agreed to incur it and to
waive any claim for injury.13

7
R. v. Donovan, (1934) All E.R. Rep 207
8
Salmond, Torts, 14th ed., p. 47
9
Wooldridge v. Sumner, (1962) 2 All ER 978
10
Holmes v. Mather, (1875) LR 10 Ex. 261
11
III (1998) CPJ 586 (Tamil Nadu SCDRC)
12
Burnett v. British Waterways Board, (1973) 2 All ER 631 (635)
13
ibid
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In the case of Burnett v. British Waterways Board,14 Mr. Burnett was a lighterman and freeman of the
River Thames, employed by Charrington Lighterage Co. Ltd. On 17th September 1968 he was taking the
barge "Durley", in convoy with four other barges, into the Limehouse Cut when the rope which was pulling
the barge snapped and knocked him unconscious. This rope was the property of the British Waterways
Board and was being worked from the quayside by servants of the Board. The Board admitted negligence
in the upkeep of the rope and it had split as a result of negligent splicing. However, they claimed that they
were exonerated from liability by the terms of a notice situated at the entrance of the dock. The notice said,
“British Waterways Board
Notice
To lightermen and others
Lightermen availing themselves of the facilities and assistance of the servants of the [Board] in bringing
their craft into and through the entrance of the dock must do so at their own risk and upon the
understanding that no liability whatever shall attach to the [Board] or its servants for any loss, damage or
injury from whatever cause arising to or by the craft or to or by any person or goods on board thereof.
-By Order."
In this case, it was held that, “The mere presence of a warning notice, where there is no obvious danger,
will probably, therefore, not give relief from liability in the event of an accident.”
This means that in this particular case, voluntary assumption of risk or volenti non fit injuria was not given
as a defence to the defendant.

On the other hand, in the case of ICI Ltd v Shatwell,15 voluntary assumption of risk or volenti non fit
injuria was given as a defence. Here, “The plaintiff and his brother were both experienced shotfirers
employed by the defendants. They jointly chose to ignore their employer’s orders and statutory safety
regulations by testing detonators without taking shelter. There was an explosion and the plaintiff was
injured. He sued the defendants on the grounds of their vicarious liability for his brother’s negligence and
breach of statutory duty.” In this particular case, the defendant was given the defence of Volenti non fit
injuria as they had complete knowledge of their act and there was no compulsion on them for consenting to
this dangerous act.
Hence, on the basis of the above two examples, it can be stated that taking VNFI as a defence is completely
circumstantial and depends on the facts of that particular case.

14
(1973) 2 All ER 631 (635)
15
(1965) AC 656
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CONTRIBUTORY NEGLIGENCE
Contributory negligence is the negligent conduct by the injured party that is a contributing cause of her
injuries, and that falls below the legal standard for protecting oneself from an unreasonable risk of harm.
This defence will apply where the damage which the claimant has suffered was caused partly by their own
fault and partly by the fault of the defendant. In order to establish the defence, the defendant must prove
that the claimant failed to take reasonable care for their own safety and that this failure was a cause of their
damage.16 At common law, if the court found that the claimant was partially to blame for their injuries,
they received nothing at all. Contributory negligence operated as a complete defence. The defence of
contributory negligence means that the deceased or the plaintiff failed to take reasonable care of his own
safety which was a material contributory factor to his death or injury.17

In the case of Butterfield v. Forrester,18 Forrester (D) placed a pole across the road next to his house in the
course of making repairs to the house. Butterfield (P) was riding at high speed at approximately 8 PM at
twilight and did not see the pole. He struck the pole and suffered personal injuries when he fell off his
horse. Here, it was held that Butterfield would have seen the obstruction if he had used ordinary care. The
accident was Butterfield’s fault and due to his contributory negligence he may not recover. No injured
plaintiff may recover damages against a negligent defendant if that plaintiff did not exercise reasonable and
ordinary care to avoid the injury. In this case, Lord Ellenborough said that, “A man is under a duty to use
common and ordinary caution for his own good. Even if a party is observed to be riding on the wrong side
of the road, a man of ordinary sense does not ride against them after seeing them in the wrong. One person
being in fault will not dispense with the requirement that the other must use ordinary care for himself.”

To establish contributory negligence, the defendant should prove before the court that the claimant failed to
take reasonable care for their own safety and that this failure was a cause of their damage. Although
contributory negligence does not depend on a duty of care, it does depend on foreseeability. Just as
actionable negligence requires the foreseeability of harm to others, so contributory negligence requires the
foreseeability of harm to oneself. A person is guilty of contributory negligence if he ought reasonably to
have foreseen that, if he did not act as a reasonable, prudent man, he might be hurt himself; and in his
reckonings he must take into account the possibility of others being careless.19 The burden of proof is on
the defendant to demonstrate:

1. The claimant failed to take proper care in the circumstances for their own safety

2. The failure to take care was a contributory cause of the damage suffered

16
http://catalogue.pearsoned.co.uk/assets/hip/gb/hip_gb_pearsonhighered/samplechapter/Cooke_C09.pdf (accessed on 4 October
2013)
17
Municipal Corporation of Greater Bombay v. Laxman Iyer, AIR 2003 SC 4882
18
(1809) 11 East 60
19
Jones v. Livox Quarries Ltd., (1952) 2 QB 608
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This rule proved to be too severe for the courts and exceptions were developed to it. As the defence
enabled the defendant to escape completely even when he was more at fault, the courts were slow to infer
that the negligence of the plaintiff was a contributory factor. Hence, the courts devised the rule of last
opportunity which meant that if the defendant had the last opportunity, to avoid the accident resulting in
injury he was to be held solely responsible for the injury, in spite of the fact that the plaintiff was also
negligent.20

In the case of Davies v. Mann,21 the plaintiff fettered the forefeet of his donkey and turned it into a narrow
lane. It was run over by a heavy wagon belonging to the defendant. The wagon was going a little too fast
and was not properly looked after by the driver. In a suit for damages, the plaintiff succeeded as the
defendant by using ordinary care could have avoided the accident even though the plaintiff was also at fault
(negligent) in turning the donkey into the lane with its forefeet fettered.

The rule laid out in this particular case was further extended to cover cases of constructive last opportunity
meaning thereby cases where the defendant would have had the last opportunity but for his own
negligence.22

In 1945 a general power to apportion damages was given to the courts by the Law Reform (Contributory
Negligence) Act 1945. Section 1(1) of the act provides that, “Where any person suffers damage as the
result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that
damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages
recoverable in respect thereof shall be reduced to such an extent as the court thinks just and equitable
having regard to the claimant’s share in the responsibility for the damage.” The scope of this act is wide but
not unlimited, for there were a number of torts where at common law the defendant could not escape
liability by showing “contributory negligence” on the part of the claimant and this is carried over into the
statutory regime. The Act will apply only where a person has suffered damage. Damage is defined by
section 4 as including loss of life and personal injury. It will apply only where the damage was caused
partly by the fault of the defendant and partly by the fault of the claimant. In the absence of fault, the court
therefore has no power under the Act to apportion damages. The Act does apply in negligence, nuisance,
actions in deceit and actions under the rule in Rylands v. Fletcher. It is unclear whether the Act applies to
trespass to the person.

20
Davies v. Mann, (1842) 10 M&W 546
21
ibid
22
British Columbia Electric Ry. v. Loach, (1916) 1 AC 719
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INEVITABLE ACCIDENT

Inevitable accident was defined by Sir Fredrick Pollock as an accident not avoidable by any such
precautions as a reasonable man, doing such an act and there, could be expected to take. It is that which
could not be avoided or prevented by the exercise of ordinary care, caution and skill. The plea
on inevitable accident is that the consequence complained as a wrong was not intended by the defendant
and could not have been foreseen and avoided by reasonable care.

Inevitable accident may be divided into two classes: 1) those which happen by the elementary forces of
nature unconnected with the agency of man or other causes. 2) Accidents that have its origin in the actions
of humans, whether in acts of commission or omission which is act of man.

To speak of inevitable accident as a defence, therefore, is to say that there are cases in which the defendant
will escape liability if he succeeds in proving that the accident occurred despite the exercise of reasonable
care on his part, but is also to say that there are cases in which the burden of proving this is placed upon
him.23

It is a good defence if the defendant can prove that he did not intend to cause harm to the plaintiff as well
as could not avoid the injury caused by talking reasonable care. In case of bodily harm, plaintiff has to
prove the intent or negligence of the defendant and if he fails to prove it then it may be considered to be an
inevitable accident. These accidents are not caused intentionally and could not possibly have been avoided
through exercise of ordinary care and caution on the part of him who causes it.

In the case of Stanley v. Powell, Holmes v. Mather, etc., inevitable accident has been taken as a defence.
In these cases, the court readily gave inevitable accident as a defence to the defendant. But there are some
cases where the event can be anticipated and guarded against and the consequences can be avoided by
reasonable precautions, the defence of inevitable accident cannot be pleaded. For example in the case of
Oriental Fire & General Ins. Co. Ltd. v. Raj Rani,24 the front right spring and patta of the truck broke all of
a sudden and the truck went out of control and dashed against a tractor coming from opposite direction.
The driver and the owner of the truck could not prove that they had taken reasonable precautions to make
the truck roadworthy, i.e., the mechanical defect was such that it could not be detected despite reasonable
precaution. It was held that it was a case of negligence, rather than inevitable accident, and therefore, the
defendants were held liable.

23
W.V.H. Rogers, Winfield and Jolowicz on tort, Sweet and Maxwell limited, London, 17th edn., 2006
24
1986 ACJ 310
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The use of inevitable accident in early actions interpreted inevitability as impracticality. In the present
scenario, to speak of inevitable accident as a defence, therefore, is to say that there are cases in which the
defendant will escape liability if he succeeds in proving that the accident occurred despite the use of
reasonable care on his part, but is also to say that there are cases in which the burden of proving this is
placed upon him.

For successful pleading of the defence of inevitable accident the burden used to be on the defendant to
prove that his conduct was without any fault, i.e., without negligence. But according to the recent
developments, the burden of proving negligence now lies on the plaintiff.25 Therefore, the plaintiff’s action
for negligence fails if he is unable to prove negligence and the court is not required to give a finding that
the defendant has proved or not proved that the damage was caused due to inevitable accident. The plea of
inevitable accident is thus now not relevant in these cases. It will thus be seen that the plea of inevitable
accident has now lost substantially all its utility even in the cases on negligence.

25
Fowler v. Lanning, (1959) 1 All ER 290
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CONCLUSION

Various defences can be availed to escape liability for the tort of negligence. Some of them which are
covered in this project are voluntary assumption of risk, inevitable accident and contributory negligence.

Herein, I have concluded that volunti non fit injuria can be taken as a defence only in some cases of
negligence, inevitable accident has lost its utility as a defence in the cases of negligence and contributory
negligence can be taken as a defence but it is not a complete defence as there is only proportionment of
damages and not complete escape from liability.

Hence there is no complete defence to negligence out of the three defences described here.

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BIBLIOGRAPHY

WEBSITES
 http://www.unistudyguides.com/index.php?title=Defences_to_Negligence
 http://www.e-lawresources.co.uk/Defences-in-tort-law.php
 http://catalogue.pearsoned.co.uk/assets/hip/gb/hip_gb_pearsonhighered/samplechapter/Cooke_C09.pdf
 http://heinonline.org/HOL/Page?handle=hein.journals/nilq24&div=47&g_sent=1&collection=journals#523

BOOKS

 Gandhi, B.M.,Law of Torts, Eastern Book Company, Lucknow,II ed.,2009


 Ratanlal, R., Thakore, Dhirajlal K., The Law of Torts, Lexis Nexis Butterworths
Wadhwa,XXVed.,2009
 Bangia, R.K., Law of Torts, Allahabad Law Agency,Faridabad, XXed., 2007
 Rogers, W.V.H., Winfield & Jolowicz on Torts, Sweet & Maxwell Publishers, XVII ed,2007

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