general defences priya

7/29/2019 General Defences Priya

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Introduction

The Consent Must Be FreeConsent Obtained By fraudConsent Obtained Under CompulsionMere Knowledge Does Not Imply Assent

Negligence Of The DefendantLimitations On The Scope Of Doctrine:I. Rescue CasesII. Unfair Contract Terms Act 1977

(England) Difference between volenti nonfit injuria

and contributory negligence


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When a person consents to the infliction of someharm upon himself, he has no remedy for that in

tort. In the case of volenti non fit injuria consent of the

plaintiff serves as the good defense against him. The consent may be implied or inferred from the

conduct of the parties. E.g.: A player is deemed to any hurt which may be

likely in the course of game. For the defence of consent to be available, the act

causing the harm must not go beyond what isconsented.

If there is a deliberate injury caused by anotherplayer defence of volenti cannot be pleaded.


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For the defense to be available , it is

necessary to show that the plaintiff's consentto the act done by the defendant was free. If the consent of the plaintiff has been

obtained by fraud or under compulsion or

under some mistaken impression, suchconsent does not deserve good defense.The act done by the defendant must be same

for which the consent is given.E.g.: if you invite some person to your house

you cannot sue him for trespass, but if he isconsented to seat in the bedroom and hecomes to your bedroom ,he will be liable fortrespass .


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Consent obtained by fraud is not real that

does not serve as a good defense.

If the plaintiff knows the nature of the actdone and then the consent is given, then

the defendant is not liable for the

consequences of the act.


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Consent obtained under such circumstanceswhen the person does not have the freedomof choice is not a proper consent.

If a person gives his consent in the state of

compulsion, it does not imply that he hasagreed to suffer the consequences of therisky job he has undertaken.

There is no volenti fit injuria, when the person

is compelled do some work inspite of hisprotests.


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For the maxim volenti non fit injuria to apply

two points have to be proved:a) The plaintiff knew the risk is thereb) He, knowing the same, agreed to suffer the

harm

If only first of these points is present, it isknowledge of the risk, it is no defense. Merelybecause the plaintiff knows of the harm thatdoes not imply that he assents to suffer it


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For the defense to be available, it is further necessary

that the act done must be the same to which theconsent has been given.E.g.: A player is deemed to the injuries in the course of

game, but if he is deliberately or negligently hit byanother player, that player is liable for his injury and hecannot plead volenti non fit injuria

When the plaintiff consents to take some risk it ispresumed that the defendant will not be negligent

E.g.: if a person submits to the risk of a surgery hecannot held the surgeon liable if the surgery is

unsuccessful, but if the surgeon was negligent then hecan be held liable


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The scope of the doctrine of volenti non fit

injuria has been curtailed:I. Rescue Cases.II. Unfair Contract Terms Act 1977

(England)

In spite of the fact that the plaintiff hasconsented to suffer the harm, he may bestill entitled to his actions against thedefendant in these exceptional situations.


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Rescue Cases form an exception to the

application of the doctrine of volenti non fit

injuria.

When the plaintiff voluntarily encounters a

risk to rescue somebody ferom animminent danger created by the wrongfull

act of the defendant, he cannot met with

the defense of non volenti injuria


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Unfair Contract Terms Act, 1977 limits theright of a person to restrict or exclude his

liability resulting from his negligence by a

contract term, or by notice.

Section 2 of the act contains followingprovisions:


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1) A person cannot by reference to anycontract term or to a notice given to a

person generally or to a particular personsexclude or restrict his liability for death orpersonal injury resulting from negligence.

2) In the case of other loss or damage, aperson cannot so exclude or restrict hisliability for negligence except in so far as theterm or notice satisfies the requirement ofreasonableness.

3) When a contract term or notice purports to

exclude or restrict liability for negligence, apersons agreement to or awareness of it isnot to be taken as indicating his voluntaryacceptance of any risk.


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1) Puts an absolute ban on persons right to exclude his liability for death orrpersonal injury resulting from negligence, by making contract or givingnotice to that effect. It means that even if the defendant has procuredplaintiffs consent to suffer death or personal injury resulting from plaintiffsnegligence, plaintiffs liability is not negatived thereby.

2) Deals with an injury where the damage caused to plaintiff is other than

death and injury. In such a case exclusion of liability by a contract term ornotice is possible only if the term of notice satisfies the requirement ofreasonableness.

3) Further provides that even in those cases where the defendant couldexclude or restrict his liability by a contract term or notice, the plaintiffsagreement or awareness about such agreement or notice, is not of itselfto be taken as indicating his voluntary acceptance of any risk. It meansthat not merely an agreement or notice may be enough to restrict thedefendants liability, something more, for instance further evidence aboutthe genuineness of the plaintiffs consent, and voluntary assumptions ofthe risks must also be proved.


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Volenti non fit injuria is a complete defence

whereas in the case of contributory

negligence, the defendants liability is based

on the proportion of his fault in the matter In the defence of contributory negligence,

both the plaintiff and defendant are

negligent.in volenti fit injuria,the plaintiff maybe volens but at the same time excercising

due care for his own safety.


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general defences priya

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