General Defences

Volenti non fit Injuria

 Plaintiff the wrongdoer
Inevitable Accident
Act of God
Private Defence
Mistake
Necessity
Statutory Authority.
• Meaning of General Defences

When the plaintiff brings an action against the

defendant for a particular tort providing the existence
of all the essentials of that tort, the defendant would
be liable for the same.

For example:- Case of Nuisance

 If defendant commit Nuisance against plaintiff and
proves all the essential of Nuisance i.e.,
1) Unreasonable Interference
2) Interference with the use of enjoyment of land
3) Damage
In such case defendant will be liable for tort of
Nuisance. However in such case, defendant can avoid
his liability by taking the plea of some defences
 Defences

Specific General
 • Specific defences are peculiar to
Specific some particular wrongs
• For example in case of
Defence Defamation: Fair Comment is
Defences

• General Defences are taken against

General action for number of wrongs.
Defences • For example:- Defence of Consent
Trespass, defamation
• Volenti non fit Injuria or the Defence of
consent
When a person consent has to the infliction of
some harm upon himself he has no remedy for
that in tort.
In case, the plaintiff voluntarily aggress to
suffer some harm, he is not allowed to
complain for that and his consent serves as a
good defence against him.
The Maxim is based on the principle that
“every man is the best judge of his on
interest”
 Express
Consent to suffer the
harm may be

Implied
Express Consent
When you invite somebody to your house, you
cannot sue him for Trespass.
Implied Consent
Many a time, the consent may be implied or
inferred from the conduct of the parties.
Example :- Cricket Match
Hall v. Brooklands Auto Racing Club (1932)

Plaintiff was a spectator at a Held at

motor car race Brooklands on
track owned by
the defendant
Company
During the race there
was a collision It was held that the
between two cars plaintiff impliedly
one of which was took the risk of such
thrown among the injury . So the
Spectators, thereby Defendant was not
injuring the plaintiff liable
 Padmavati v. Dugganaika 1975

Driver was taking the jeep for

filling petrol in the tank 2 strangers
took lift in
The two the jeep
strangers were
Suddenly one thrown out and
of the bolt sustained Defendant was
injuries and not liable
fixing the right
front wheel to one of them 1)It was case of
the axle gave died Sheer Accident
away toppling 2) Volenti non fit
the jeep injuria
• ILLOT V. WILKES 1820
Trespasser who knew about the spring guns on
a land could not recover damages when he was
shot by a spring gun.
• Essential Conditions of Doctrine of Volenti Non Fit
Injuria

1. The consent of the plaintiff must be free

Wooldridge V. Sumner -
Fact -
A photographer was taking photo in a horse show
unfortunately he fell into horse course and was injured
by galloping of horse.
Held -
Here also defendant was not liable.
• The consent is not free, if it has been obtained by
Undue Influence , Coercion , Fraud,
Misrepresentation, Mistake or the like elements
which adversely affect a free consent.
• Consent Obtained by Fraud
 R v. Williams (1923) K.B
• Consent Obtained under Compulsion
Consent given under circumstances when the
person does not have freedom of choice is not
the proper consent. A person may be
compelled by some situation to knowingly
undertake some risky work which, if he had a
free choice, he would not have undertaken.
EX:- In case of Master-Servant relation
2) Mere Knowledge does not imply Assent
a) The plaintiff Knew that the risk is there
b) He, knowing the same, agreed to suffer the
harm

If only first of these points is present, i.e., there is

only the knowledge of the risk, it is no defence.
Merely because the plaintiff knows of the harm
does not imply that he assents to suffer it.
 Bowater v. Rowley Regis
Corporation 1944 KB

In this case, the defendant’s master asked The plaintiff protested and
the plaintiff, a cart driver, to drive a horse finally agreed to drive the
that they both knew was likely to bolt. horse. The horse bolted and
the plaintiff was injured.

The court found that the principle of

consented harm was not applicable
because the plaintiff was forced to commit
the act despite his protests. Goddard L.J :
“That Maxim volenti non fit injuria is one
which in the case of master and servant is
to be applied with extreme caution.
Smith v. Baker (1891)A.C.
Plaintiff was employed to hold a drill in Next to where he
position whilst two other workers took it was working
in turns to hit the drill with a hammer another set of
workers were
engaged in taking
It was held by the out stones and
The Claimant was H.O.L that as there
injured when a was mere Knowledge putting them into
stone fell out of of risk without the a steam crane
the crane and assumption of it, the which swung over
struck him on the maxim did not aply the place where
and the defendant the Claimant was
head. were liable
working.
Dann v. Hamilton (1939) K.B.
A lady, knowing that the Due to the driver’ s negligent
driver of the car was driving, an accident was
drunk chose t travel in it caused resulting in the death
instead of an omnibus. of driver himself and injuries
to the lady

Lady claim compensation

against legal
representative of driver The Defence of consent
was pleaded
• The case has been criticised,mainly on the
ground that if the Maxim Volenti Non Fit
Injuria is not applicable then there is another
Maxim which is applicable in this case i.e.,
“Contributory Negligence”
• Negligence of the Defendant
For the defence to be available, it is further
necessary that the act done must be the same to
which the consent has been given
 If I Submit to a Surgical operation, I have no right
of action if the operation is unsuccessful. But if
the operation is unsuccessful because of the
Surgeon’s Negligence, I can bring an action
against him for that.
• Limitations on the scope of the doctrine

1. In Rescue Cases, and

2. By the Unfair Contract Terms Act,1977

• In Rescue Cases
‘Rescue Cases’ form an exception to the
application of the doctrine of ‘Volenti Non Fit
Injuria’. when the plaintiff voluntarily
encounters a right to rescue somebody from
an imminent danger created by the wrongful
act of the defendant, he cannot be met with the
defence of Volenti Non Fit Injuria.
• Haynes v. Harwood(1935) K.B.

The Defendant left a horse-drawn van

unattended in a crowded street
The horses bolted when a boy threw a stone at
them
A police officer tried to stop the horses to
save a woman and children who were in the
path of the bolting horses. The police officer
was injured.
It being a ‘rescue Case’, the defence of
‘volenti non fit injuria’ was not accepted and
the defendant were held liable
• Baker v. T.E. Hopkins & son (1959)
 Due to the employers negligence, a well was filled
with poisonous fumes of a petrol driven pump and
two of his workmen were overcome by fumes.
 Dr. Baker was called but he was told not to enter the
well in view of the risk involved. In spite of that,
Dr.Baker preferred to go into the well with a view to
make an attempt to help the two workmen already
inside the well.
The Doctor himself was overcome by the
fumes.

All three men died.

The Doctor’s Wife sued the workmen’s

employers to claim compensation for her
husband’s death.
• It was held that the act of the rescuer was the
natural and probable consequences of the
defendant’s wrongful act which the latter could
have foreseen, and, therefore, the defence of
volenti non fit injuria was available. The
defendants were ,thus, held liable
• Same principle will apply when somebody by
his negligence puts himself in danger rather
than any third person.

Example:- In case of attempt to Suicide

Sometimes the question which arises is, does the rule
in Haynes v. Harwood apply in cases of rescue of
property?

Hyett v. Great Western Railway Co.(1948) K.B.

The plaintiff was injured in an attempt to save the

defendant’s railway cars from fire which had occurred
due to the negligence of the defendant. The Plaintiff’s
conduct was considered to be reasonable and on the
basis of the doctrine of Haynes v. Harwood which was
applied in this case, the defendant was liable