Justification of Torts

Justification in Torts Course-LL.B-I

Subject: Law of Tort IUnit-IV

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Topics

Volenti non fit injuria(Consent or leave and license)

Plaintiff’s default Act of God / Vis major Inevitable accident Necessity : private and public Private defence Statutory authority Parental and quasi parental authority Judicial and Quasi Judicial act

The general exceptions and justification in tort are as follows

Volenti non fit injuria(Consent or leave and license)

Plaintiff’s default

Act of God / Vis major

Inevitable accident

Necessity : private and public

Private defence

Statutory authority

Parental and quasi parental authority

Judicial and Quasi Judicial act

1. Volenti non fit injuria

• It mean ‘where the suffer is willing, no injury is done’.

• In other words ,when a person consents to the infliction of some harm upon himself, it does not constitute a legal injury and , therefore , is not actionable.

• Consent to suffer the harm may be express or implied. It can be inferred from the conduct of the parties.

• Express consent • E.g. When you send an invitation card and invite

somebody to your house, you can not sue him for trespass ; or when you submit your self for surgical operation, you cannot sue the hospital authorities for doing the same.

• Implied consent• A player in the games of cricket, hocky,rugby or

boxing is deemed to be agreeing to any hurt which may be likely in the normal course of the game.

Essentials

• Consent must be free;

• Consent cannot be given to an illegal act;

• Knowledge of risk is not the same thing as consent to run the risk.

a. Consent must be freely given

• The consent is not free if it has been obtained by undue influence coercion, fraud, misrepresentation ,mistake or thew like elements which adversely affect a free consent.

Hall v. Brooklands Auto-racing Club, (1933) 1 KB 205

• The plaintiff was a spectator at a motor car race being held at brooklands on a track owned by the defendant company.

• During the race ,there was collision between two cars,one of which was thrown among the spectators,thereby ijuring the plaintiff.

• It was held that the plaintiff impliedly took the risk of such injury,the danger being inherent in the sport which any spectator could forsee, the defendant was not lible.

b.Consent can not be given to an illegal act

• No consent can legalise an unlawful act or an act which is prohibited by law.

c. Knowledge of risk is not the same thing as consent to run the risk

• Smith v. Charles Baker & Co.[1891]AC 325

• In this case ,the plaintiff worked in a cutting on the top of injured. The house of lords held that defendants which a crane of ten jibbed carrying heavy stone over his head while he was drilling the rock face in the cutting.

• Both he and employers knew that there was a risk of stones falling,but no warning was given to him of the moment at which any particular jibbing commenced.

• A stone from the crane fell upon him and re liable.

Act of God / vis Major

• Act of God may be defined as-

“circumstances which no human foresight can provide against any of which human prudence is not bound to recognise the possibility,andwhich when they do occure, therefore,arecalamities that do not involve the obligation of paying for the consequences that the result from them”.

• Illustration-The falling of a tree ,a flash of lighting , a tornado , storms or a flood.

The essential conditions of this defence are:

• There must be working of natural forces without any intervention from human agency ,and

• The occurrence must be extraordinary and not one which could be anticipated and reasonably guarded against.

Nicholas v. Marshland,(1875)2 KB 297

• The defendant constructed three artificial lakes which were fed by a natural stream. The lakes were well constructed and adequate in all normal circumstances.

• An extraordinary rainfall burst the banks of artificial lakes on the defendant's property and floodwater destroyed a number of bridges owned by the country council.

• It was held that the defendant was not negligent and the accident was due to an act of God.

3.Inevitable accident

• An ‘inevitable accident’ is that which could not possibly, be prevented by the exercise of ordinary care, caution and skill.

• A. Krishna Patra v. Orisssa State Electricity board ,AIR 1997 Orrisa 109

• The Orissa High Court defined ‘inevitable accident ‘as an event which happens not only without the concurrence of the will of the man ,but in spite of all efforts on his part to prevent it.

4.Necessity

• Necessity knows no law

• This is intentional damage to prevent even greater destruction or in defence of the realm.

• The exception of necessity is based on the maxim Salus Populi Suprema Lex i.e. the welfare of the people is the Supreme Law.

Illustration

• A, in a great fire, pulls down houses in order to prevent the conflagration from spreading. He does this with the intention in good faith of saving human life or property.

• Here ,if it be found that the harm to be prevented was of such a nature and so imminent as to excuse A’s act ,A is not guilty of the offence.

5. Private defence

• If a tort is committed by a person acting to protect him members of his family or his property ,or even persons generally, there will be no liability if the action is a reasonable response to the harm threatened.

• In other words, no action is maintainable for damage done in the exercise of one’s right of private defence of person or property provided that the force employed for the purpose is not out of proportion to the harm apprehended.

6.Statutory authority

• Statutory authority means “an authority or power given by law to do certain acts and if a tort is committed in the course of any such act, the injured person will have no claim unless the act has been done negligently”.

• The basic philosophy behind the statutory immunity is that the lesser private right must yield to the greater public interst.

• Government can acquire land even against the will of people for the development purpose as they have statutory authority; but a builder cannot force one to sell his property under the grab of development, as he has not statutory authority.

7.Parental and Quasi parental authority

• Parents and persons in loco parentis have a right to administer punishment on a child for the purpose of correction ,chastisement of training.

• However one must remember that such an authority warrants the use of reasonable and moderate punishment only and therefore ,if there is an excessive use of force, the defendant may be liable for assault ,battery or false imprisonment ,as the case may be.

In fitzgerald v. Northcote,(1865) 4 F&F 656, Cockburn C.J.

“The authority of a schoolmaster is while it exists, the same as that of parent. A parent, when he places his child with a schoolmaster, delegates to him all his authority, so far as it is necessary for the welfare of the child”.

8.Judicial and Quasi-Judicial Acts

• No action lies for acts done, or words spoken, by judge in exercise of his judicial office, although they may be malicious.

• It is founded on the principle of public benefit that Judges should be at liberty to exercise their function independently and without fear of consequences.

Limits of such protection

No such protection is granted if a magistrate is acting mala fide and outside his jurisdiction.

9. Mistake

• The general rule is that mistake ,whether of the law or of the fact ,is no defence in tort.

• A defendant cannot argue that he or she did not know the law relevant to his or her case.

• The maxim ignoratia legis non excusat i.e. ignorance of the law is no excuse,applies.

10.Contributory Negligence

• This defence is normally raised to actions for negligence.

• It arises when damage is suffered partly by the fault of the claimant.

• The defendant ,therefore attempts to reduce the damages by proving that the claimant was himself partly responsible.

Stapley v. Gypsum Mines Ltd (1953)

• Two miners who worked, in breach of instructions, under a dangerous roof were held 80% contributory Negligent.

Thank you

References

• Regha surya rao- Law of Tort• Ratan Lal & Dhiraj Law-The Law of Torts (1997) Universal, Delhi

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