Justification of Tort: Law of Torts and Consumer Protection Act
Justification of Tort: Law of Torts and Consumer Protection Act
Justification of Tort: Law of Torts and Consumer Protection Act
Justification of Tort
The general exceptions or justifications of torts are as follows:
Express Consent
E.g. When you send an invitation card and invite somebody to your
house, you cannot sue him for trespass; or When you submit yourself
for surgical operation, you cannot sue the hospital authorities for doing
the same.
Implied Consent
Knowledge of risk is not the same thing as consent to run the risk.
During the race, there was collision between two cars, one of which
was thrown among the spectators, thereby injuring 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 foresee,
the defendant was not liable.
The defendants were held not liable where a young spectator was
struck in the eye by a hockey puck.
e.g. fighting with naked fists, duel with sharp swords are unlawful and
even though the parties may have consented, yet the law will permit
an action at the instance of the plaintiff.
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 injured. The House of Lords
defendants were liable.
Rescue Cases
Doctrine of assumption of risk does not apply where plaintiff has under
an exigency caused by defendant’s wrongful misconduct, consciously
and deliberately, faced a risk, even of death to rescue another from
imminent danger of personal injury or death, the defence of leave and
licence is not applicable to the plaintiff, whether the person
endangered was one to whom he owed a duty of protection as a
member of his family, or was a mere stranger to whom he owed no
such duty.
It was held:
That he was entitled to recover damages, as the defendant was grossly
negligent, and
That the defence of Volenti non fit Injuria was held not to apply to the
rescue cases, the act of a third party also intervening and the voluntarily
undertaking the risk by the plaintiff were not open to the defendant.
C J Rawandale, Associate Professor 12
Email: [email protected]
Dr. J N Srivastava v. Ram Bihari Lal and Others, AIR 1982 M.P.
132
The doctor observed after opening the abdomen cavity that patient’s
appendix was all right but the operation of Gall-bladder was needful.
He proceeded with the operation- later on the patient died. The Court
held that it was not possible to seek the consent for the Gall-bladder
operation. In such circumstances doctor was not responsible.
A well was filled with poisonous fumes of a petrol driven pump on account
of negligence of the employer, as a result of which two workmen were
overcome by fumes. Dr. Baker was called to rescue their lives but he was
told not to enter the well in view of the risk involved. Still he preferred to
enter the well with a view to save their lives. In the attempt of saving
them he himself was overcome by the fumes and he died.
The widow of Dr. Baker sued the employer to claim compensation for her
husband’s death. The defendants pleaded Volenti non fit Injuria.
It was held that the act of rescuer was the natural consequence of the
defendant’s negligent act which he could have foreseen and therefore,
the defence of Volenti non fit Injuria did not apply. The defendants were,
thus, held liable.
C J Rawandale, Associate Professor 14
Email: [email protected]
Distinction between Volenti Non Fit Injuria &
Contributory Negligence
In case of Volenti Non Fit Injuria, the plaintiff is always aware of the
nature and extent of the danger which he encounters, while it is not so
in case of Contributory negligence.
Illustrations
It was held that the defendant was not negligent and the accident was
due to an act of God.
The plaintiff, who was engaged in carrying cartridges and game for the
party, was hit by a shot fired by the defendant while on an organised
pheasant shoot when the shot glanced off a tree before hitting the
plaintiff.
It was held that in these circumstances, neither the council nor the
contractor would be liable for damage of cable and the defence of
inevitable accident was allowed.
However, one who puts live electric wires on his land to stop the
trespassers cannot successfully avail this defence if he does not give
notice, warning of such dangerous thing.
A fire broke out on A’s land. A’s servants were busy in extinguishing
the fire, the gamekeeper of C (who had shooting rights over A’s land)
set fire to some strips of heather extinguished between the fire and
some nesting peasants of C, in a shot, while the fire was by A’s
servants. A sued the gamekeeper for trespass.
The Court held that the gamekeeper was not liable for there was a real
and imminent danger to the game which justified the action taken by
the defendant.
The Supreme Court held that “under the law of tort necessity in a
plausible defence, which enables a person to escape liability on the
ground that the acts complained of are necessary to prevent greater
damage, inter alia, to himself. So the trespass on some property
cannot be justified always on the basis of necessity.
It was held that the person was guilty under section 328 (causing hurt
by means of poison or any stupefying, intoxicating or unwholesome
drug or other thing with intent to commit an offence), and that section
81 did not apply.
It was held that the defendant’s action was justifiable and the owner of
the stallion was not entitled to any damages.
The defendant was passing by the plaintiff’s house. The plaintiff’s dog
ran out, and bit the defendant. On the defendant’s turning round,
raising his gun, the dog ran away and he shot the dog as it was
running away.
It was held that the defendant was not justified in doing so. To justify
the shooting of the dog, he must be actually attacking the party at the
time.
e.g. to acquire land for the laying down of the railway track; the noise
and vibration will be caused by running the train on it.
The Plaintiff sued the Government of the United Provinces for recovery
of the ornaments, and in the alternative for the recovery of their price.
It was held that the Government was not liable as the alleged tortuous
act was performed in discharge of an obligation imposed by law. [Also
see Kasturilal v. State of U.P. AIR 1965 SC 1039]
The defendants were not liable for fires caused by sparks from engines
since they were obliged to operate a railway and had done so with
proper care.
The local authority had, by statute, been given power to erect air-raid
shelters on the highway. In the black-out, Fisher drove his motor cycle
into such a shelter, and was injured. When sued for the tort of public
nuisance, the Council pleaded that it had statutory authority to put up
the shelter.
The defence failed, because the Council could, even in the black-out,
have put up small, shaded warning lights for motorists. The Council
only had statutory authority on condition that it was exercised with
care for the safety of others.
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.
not limited only to the wrongs which the student may commit upon
the school premises
but may also extend to the wrongs done by him outside the school
because there is not much opportunity for boy to exhibit his moral
conduct while in school under the eye of the master the opportunity is
while he is at play or outside the school.
It has been held that if the school rules prohibited smoking, both in the
school and in the public, the school master was justified in caning a
student whom he had found smoking cigarette in a public street.
The Maryland High Court ruled that school counsellors were negligent
in not revealing their knowledge of a student’s threatened suicide to
the child’s parents. The counsellors’ negligence was not for failure to
physically prevent the student’s suicide, but rather for not
communicating information regarding the child’s intent.
Five persons were prosecuted for certain offences. One of them was
acquitted by the Sessions Court and another by the High Court. The
High Court upheld the conviction of only three of the five persons and
authorised the issue of warrants against these three convicted persons.
The judicial magistrate acting negligently signed an order for the arrest
of all the five persons.
As a result of this order, the plaintiffs, even though they had been
acquitted by the High Court, were arrested by the police.
Further, it held that the judicial officer was liable for the wrongful
arrest of the plaintiff-respondents as the judicial officer was not
exercising any judicial function but only an executive function while
issuing warrants and therefore, the protection under the Judicial
Officers’ Protection Act, 1850 could not be available in this
case.
A defendant cannot argue that he or she did not know the law relevant
to his or her case.
The maxim ignorantia legis non excusat i.e. ignorance of the law is
no excuse, applies.
It was held that 75% of her injury was the fault of the Council for
providing a defective lock which jammed, and 25% was her own fault.