Ll.b i lot u 3 justification tort

Justification of Torts
Justification in Torts
Course-LL.B-I
Subject: Law of Tort I
Unit-IV
1

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,and
which when they do occure, therefore,are
calamities 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.

References
• Regha surya rao- Law of Tort
• Ratan Lal & Dhiraj Law-The Law of Torts (1997) Universal, Delhi
law
• 1. http://tx.english-ch.com/teacher/jocelyn/tort%20law.jpgSlide share
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Ll.b i lot u 3 justification tort

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