Complete Analysis of the General defences employed under Law of Torts

Updated: Sep 13, 2021

When the plaintiff brings an action against the defendant for a particular tort, with the existence of all the essentials of that tort, the defendant would be liable for unliquidated damages. However, even in such a case, the plaintiff can avoid his liability by taking the plea of some defences that are available under Law of Torts.

So let's discuss all of them in brief :)

(Case laws included)

1. Volenti non fit injuria:

Consent form - I agree

It basically means the voluntary assumption of risk. When a person consents to the infliction of harm upon himself, he has no remedy for that in tort making this an excellent defence for the defendant against tortuous liability. Consent forms an essential part under this doctrine- whether it is implied or expressed. It must not be obtained fraudulently (as held in R. v. Williams).

This doctrine is based on the idea that “no man can enforce a right that he himself has waived or voluntarily abandoned”. However, the harm caused must not be beyond what is consented to.

To put it simply, the act that causes such damage must be in accordance with what was consented by the plaintiff in order to avoid tortuous liability (as held in Lakshmi Raj v. Malar Hospital Pvt. Ltd- Where the plaintiff had only consented to have her appendix removed but, the surgeons had also removed the uterus from her body and therefore, went beyond the extent to what was consented for and thus, were held liable for damages).

For this principle to apply two basic conditions should be met:

  1. The plaintiff knew that the risk is mere.

  2. He, knowing the same, agreed to suffer the harm.

In Hall v. Brooklyn Racing Club:

The plaintiff was at a race where the race cars had collided causing one of them to fling into the seating area and injuring the plaintiff. It was held that the plaintiff could not recover damages as he had impliedly consented to such a risk when he came to attend the race.

Scienti non fit injuria (Mere knowledge does not imply consent):

In Smith v. Baker, the plaintiff was employed to cut rock. One of the cranes moving the cut rocks to the other side was hovering over the plaintiff’s head. That’s when one of the rocks fell and injured the plaintiff.

In this case, even though there was consent to the risk on the part of the plaintiff when he took the job, it did not mean consent to get hit and injured by rocks (i.e. suffer the harm). Therefore, the defendants were held liable.

Exceptions to Volenti non fit injuria:

  • Rescue cases:

These cases form an exception to the doctrine of Volenti non fit injuria- When the plaintiff voluntarily agrees to the risk of damage while saving/rescuing somebody from an imminent danger created by the wrongful act of the defendant, he cannot claim the defence of Volenti non fit injuria

In Haynes v. Harwood, a police officer took the risk to rescue children from the oncoming horses and as a result, suffered some serious damage. In an action against the owner of the horses, the defendant was held liable for damages as the defence of volenti non fit injuria did not apply.

  • The Act authorized is itself unlawful:

If voluntary consent is given for an act that is not allowed under the law, the actor will be liable for damages even if the consent was there. In this case, the defence of Volenti non fit injuria will not be applicable.

  • Negligence:

The defense of Volenti non fit injuria is also not applicable in cases of negligence as the basic constituent of the doctrine is consent- whether implied or expressed. But, if due to some act of the defendant, the plaintiff is not left with ample time to choose to provide consent or not, there can be no agreement to suffer harm from the said act.

2. Plaintiff the wrongdoer:

In case the plaintiff himself is the wrongdoer, it still does not make him not entitled to recover the damages in case he suffers an injury “unless some unlawful act or conduct on his own part is connected with the harm suffered by him as a consequence of the transaction”.

Therefore, a person trespassing on the defendant’s land and getting injured by an array of spring guns set by the defendant (without notice or warning) would not hinder him from claiming damages (as held in Bird v. Holbrook)

3. Inevitable accident:

An accident caused by collision of two cars on a highway

The word “accident means an unexpected injury that could not have been foreseen or avoided despite reasonable care or precaution taken by the defendant.

The phrase “inevitable accident” does not mean “absolutely inevitable”. “But, it means not avoidable by any such precautions that as a reasonable man, doing such an act then and there could be expected to take”.

In Stanley v. Powell,

The plaintiff and the defendant had gone bird shooting when one of the bullets hit a bark and rebounded causing serious injury to the plaintiff. In an action for damages, the defendant was not held liable because it was classed by the court as an inevitab