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INTENTIONAL TORTS
OUTLINE
• Volenti non fit injuria
• Contributory negligence
• Illegality
• Self defence
• Defence of another / property
• Necessity
• Mistake
• Consent
• Discipline
• Lawful arrest
A.VOLENTI NON FIT INJURIA
• A direct translation of the latin
phrase volenti non fit injuria is, 'to one
who volunteers, no harm is done'.
• Where the defence of volenti applies it
operates as a complete defence absolving
the Defendant of all liability.
• The defence of volenti non fit
injuria requires a freely entered and
voluntary agreement by the claimant, in
full knowledge of the circumstances, to
absolve the defendant of all legal
consequences of their actions.
Nettleship v Weston [1971] 3
WLR 370
• The defendant was a learner driver. She was taking lessons from a
friend. The friend checked that the defendant's insurance covered her
straighten the wheel but Mrs Weston panicked and failed to straighten
the handbrake and tried to straighten the wheel but it was too late.
under the Fatal Accidents Acts 1846–1959 and the Law Reform
assault, but alleged that the assault had occurred during a criminal affray
which M had initiated with others for the purpose of assaulting the
negligence in that his death was caused in part by his own fault in initiating
• The defence rests on a principle of public policy that the courts will
not assist a plaintiff who has been guilty of illegal or immoral
conduct.
Tay Kian Hock v Kewangan
Bersatu Bhd [2002] 4 MLJ 411
• For the defence of ex turpi causa non oritur actio to
plaintiff.
• In the instant case, conversion was perpetrated by the plaintiff
himself. Had the spray pump not been hidden and available for
repossession at JL Teknik's factory, the defendant would have
repossessed it without any hassle. Having taken over the business
of JL Teknik together with its equipment, the plaintiff was duty bound
to keep the spray pump under his custody and hand over the same
to the defendant's appointed repossessors. As such, the plaintiff's
conduct was so reprehensible as to justify its condemnation by the
court. Further, that conduct formed so much of an integral part of the
conversion that it would be wholly against public conscience to allow
the plaintiff to succeed.
D. SELF DEFENCE
• This defence is relevant in a case on
trespass to person.
• The general principle is that, when a person
being attacked, he must take reasonable
steps to defend himself, especially in
situations where he does not have the time or
opportunity to get help.
• REQUIREMENTS NEEDED TO BE CONSIDERED BEFORE
INVOKING THIS DEFENCE
• 1. Whether it is reasonable for the defendant to use violence
in defending himself (reasonableness).
• The plaintiff, aged 64, and the defendant, aged 23, were neighbors.
One day, on July 21, 1966, while the plaintiff, who had returned from
When the defendant asked the plaintiff what he had said to his wife,
the plaintiff replied: "I want to see you on your own," implying a
challenge to fight.
• The defendant came out into the courtyard in pyjamas and dressing-
gown. He moved close to the plaintiff, causing the latter to think that
shoulder. The defendant then drew his right hand from his pocket
and punched the plaintiff very severely in the eye. The blow caused
month in hospital.
a result of which the defendant’s sheep miscarried. The defendant saw what
was happening. The defendant in thinking that the dogs were strays and
• The court held that for the defendant to use the defence of property he must
prove firstly, that the sheep was in actual danger and the danger must be
imminent. Secondly, the defendant must prove that if the attacking dogs
were left at large, they will renew their attack so that his sheep would
• The court found out that the defendant had satisfied both requirements.
• A person who has the possession in fact of, or the immediate right to
possess land, may use reasonable force in order to prevent a
trespasser from entering his land or to oust that trespasser from his
land.
• Therefore, placing barbed wires or spiked railings on the confines of
one’s land may be considered as reasonable act in deterring
trespassers from entering the land.
• This right to protect one’s land/property does not extend to placing
deadly implements so as to cause the trespasser to suffer grave
bodily injuries.
Depue v Flatau [1907] 100 Minn 299
• Depue was a cattle buyer. He came to the Flatau's house on their
order to examine the cows in the morning, but the defendants refused
– but they invited him for dinner. After dinner, when he was getting
ready to leave he collapsed on the floor. It was clear at this point that
he was very ill. He asked again to stay overnight, but again his request
was denied.
• The son practically carried him out to his horse
and buggy, put him on, threw the reigns over his
shoulders and sent him on his way. Depue was
found the next day almost frozen; he had fallen off
his buggy less than a mile down the road and
spent the entire night outside in the cold. He had
to have several fingers amputated.
• Held: The defendant was held liable to the
sick trespasser (the plaintiff) for removing
him from the premises into the snow.
G. NECESSITY
Procedure Code.
• Reasonable suspicion includes the arrest of the
‘wrong’ offender provided that the circumstances
were such that a reasonable man would have
suspected that the plaintiff was the offender
concerned- Tan Eng Hoe v AG [1933] MLJ 151
• A police officer who conducts a search may take
away any articles found on the person arrested
and these articles will be placed in safe custody or
brought to the court as evidence of crime.
• This justifies what would otherwise amounted to
interference with goods.
END OF LECTURE
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