justification in tort

Law of Torts and Consumer Protection Act

Justification of Tort

Dr C J Rawandale, Director, Symbiosis Law School, NOIDA 2

The general exceptions or justifications of torts are as follows:

Volenti Non Fit Injuria (consent or leave and license); Plaintiffs default; Act of God/Vis major; Inevitable Accident; Necessity: Private & Public Private defence; Statutory Authority; Parental and Quasi-Parental Authority; Judicial or Quasi-Judicial acts.


1. Volenti Non Fit Injuria

It means ‘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

Illustration:

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

A player in the games of cricket, hockey, 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 the like elements which adversely affect a free consent.

Imperial Chemical Industries Ltd. V. Shatwell, (1964) 3 WLR 329 (HL)

The plaintiff was employed by the defendant on a barge, and plaintiff received injuries owing to the breaking of a defective rope by which the barge was being pulled. It was held that there was no implied consent to bear the risk on the part of the plaintiff as he had no knowledge of the defective rope.


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 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.


Arthur v. Anker, [1996] 3 All ER 783, [1997] QB 564

A motorist, who parked his car on his private land after having been given notice that the landowner objected and might clamp his wheels, was deemed to have consented when this occurred.


Vine v. London Borough of Waltham Forest [2000] 4 All ER 169

A car driver felt sick, turned hurriedly into a private car park, got out and was sick a shot distance away. She returned to find the car wheels clamped. There was a warning notice, but it was partly obscured by another vehicle. She recovered damages because she had not consented to the risk of clamping.


Murray v. Harringay Arena Ltd [1951] 2 All ER 320

The defendants were held not liable where a young spectator was struck in the eye by a hockey puck.


b. Consent cannot be given to an illegal act

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

Illustration:

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.

Hockey, Cricket- Raman Lamba & Eknath Solkar


1. Raman Lamba had been hit on the temple while fielding, witout helmet, at short leg. The ball hit him so hard that the ball rebounded to Khaled Mashud, the wicket keeper. He succumbed to the injuries on February 23, 1998.

2. On Alcwyn Jenkins failed to see the ball hurtling towards the stumps from the boundary and died when it hit him on the head. The South Wales Cricket Association Honorary Chairman Neil Hobbs, a friend of Mr. Jenkins said: “…Umpires do get hit by the ball occassionally, but the chances of a fatality must be less than one in a million. No one can believe it.”

(See, David Wilkes, “Cricket Umpire, 72, Killed as Ball Thrown by Fielder Hits Him on the Head”, DailyMail, 06 July 2009 available online at http://www.dailymail.co.uk/news/article-1197617/Cricket-umpire-72-killed-ball-thrown-match.html ) (Last visited 8 July 2009)


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 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 injured. The House of Lords held that defendants were liable.


Exception to the rule

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.


Haynes v. Harwood, (1935) 1 KB 146

The defendant negligently left his horses unattended in a crowded street, a boy threw a stone at them and they ran helter-skelter. The plaintiff, constable on duty, perceiving the danger to the lives of the persons, ran out and stopped the horses but was seriously injured.

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.


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.


Baker v. T.E. Hokins and Sons, (1959) 1 WLR 966

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.


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.

Volenti Non Fit Injuria is a complete defence, whereas in contributory negligence the claim of the plaintiffs is reduced to the extent the claimant himself was to blame for the loss.


2. 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 occur, therefore, are calamities that do not involve the obligation of paying for the consequences that result from them”.


Greencock Corporation v. Caledonian Railway Co. (1917)

This defence is available ‘in circumstances which no human foresight can provide against, and which human prudence is not bound to recognise the possibility.’

Illustrations: The falling of a tree, a flash of lightening, a tornado, storms, tempests, tides, volcanic eruptions, or a flood

(Do read, Christopher Jon Andrews, Mary Ann Cooper and D. Mackerras, “Lightning Injuries: Electrical, Medical, and Legal Aspects”, (CRC Press: 1991)

Available online at http://books.google.co.in/books?id=-BeZVUh0LQ0C&pg=PA158&dq=act+of+god+in+torts&lr=#v=onepage&q=&f=false )


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 the floodwater destroyed a number of bridges owned by the county council.

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


In Greencock Corporation v. Caledonian Railway Co. (1917) AC 556, the House of Lords criticised the use of defence in Nicholas.

In modern times the defence will rarely, if ever, be successful, for with increasing knowledge the limits on the forseeable have increased dramatically.


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. Orissa State Electricity Board, AIR 1997 Orissa 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.


Stanley v. Powell, (1891) 1 QB 86

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 the defendant was not liable.


National Coal Board v. Evans, (1951) 2 KB 861

In this case a colliery company preceded the National Board, had buried an electric cable in the county council’s land. The county council’s contractor damaged the cable while excavating land and the fact that electric cable was buried under the land was not known to the council or contractor.

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.


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:

One arresting and restricting the movement of the drunken person who is likely to cause danger to the people at large, can successfully plead necessity as a defence.

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.


Cope v. Sharpe, (1912)

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.


Limits of the Defence of Necessity

Olga Tellis v. Bombay Municipal corporation, (1985) 3 SCC 545

The Supreme Court held that “under the law of tort necessity is 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.

The defence is available if the act complained of was reasonably demanded by the danger or emergency”.


Section 81 of the Indian Penal Code

Nothing is an offence merely by reason of the being done with the knowledge that it is likely to cause harm, if it be done without any criminal intention to cause harm, and in good faith for the purpose of preventing or avoiding other harm to person or property.

Explanation: It is a question of fact in such a case whether the harm to be prevented or avoided was of such a nature and so imminent as to justify or excuse the risk of doing the act with the knowledge that it was likely to cause harm.


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.


Dhania Daji, (1868) 5 BHC (CrC) 59

A person placed poison in his toddy pots, knowing that if taken by a human being it would cause injury, but with the intention of thereby detecting an unknown thief who was in the habit of stealing the toddy from his pots. The toddy was drunk by and caused injury to some soldiers who purchased it from an unknown vendor.

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.


5. Private Defence

If the tort is committed by a person acting to protect him/herself, members of his/her family or his/her 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.


Turner v. Jagmohan Singh, ILR (1905) 27 All. 531

A vicious stallion repeatedly attacked a pair of mares belong to the carriages in which the defendant was being driven, and finally came into the defendant’s compound in spite of attempts made to prevent him, and continued his attacks until the defendant getting hold of a spear inflicted somewhat severe wound on the left hind quarter of the stallion. After this the stallion made off, but subsequently died from the effects of the wound.

It was held that the defendant’s action was justifiable and the owner of the stallion was not entitled to any damages.


Morris v. Nugent, (1836) 7 C & P 572

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.


Sections 96-106 of the Indian Penal Code

As per section 96 IPC nothing is an offence which is done in the exercise of the right of private defence.

Further section 97 authorises one to exercise right of private defence to protect one’s person and property and also that of other person, subject to restriction as placed under section 99 that there is no right of private defence against any act which does not reasonably cause the apprehension of death or of grievous hurt, if done…the right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence.


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 interest.


The extent of the protection available to a public authority depends on whether the authority is absolute or conditional. Such a condition may be express or implied.

In case of absolute statutory authority the immunity is available against both the act and its natural consequences.

If absolute, then the authority is not liable provided it has acted reasonably and there is no alternative course of action.

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.


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 garb of development, as he has not statutory authority.


If an act is done in pursuance of a mandatory provision of law the authority executing that mandate is not liable for any loss which is caused to the plaintiff if that authority has been negligent in performance of the duty.


Ram Gulam v. Government of the United Province, (1951) 1 All. 135

Certain ornaments were stolen from the house of the plaintiff. On a search made by the police they were recovered from another house and produced as exhibits at the trial of those who were prosecuted in connection with the theft. Thereafter they were kept in the Collectorate godown from where they were again stolen and could not be traced.

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]


Vaughan v. Taff Vole Rly. Co. (1860) 5 H&N 679

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.


Where the authority is conditional, the public authority has the power to act but is under no duty to do so, and it may carry out the relevant act only if there is no interference with the rights of others.

No one can remove property out of one’s possession, however traffic police can remove vehicle which is obstructing the traffic or is parked in no parking zone. However one who is residing nearby an airport cannot complain of the noise created by the operation of the airport.


Metropolitan Asylum District Board v. Hill, (1889) LR 4 PC 628

A local authority being empowered by a statute to erect a small-pox hospital was restrained from erecting it at a place where it was likely to prove injurious to the residents of the locality.

The authority to construct a hospital was construed as impliedly conditional only, i.e. to erect the hospital provided that the hospital authorities selected a site where no injurious results were likely to be caused to others.


Fisher v. Ruislip-Northwood UDC, (1945)

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.


7. Parental or 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 England, as per Section 1(7), Children and Young Persons Act, 1933, a parent, teacher, or other person having lawful control or charge of a child or young person is allowed to administer punishment on him.


In Fitzgerald v. Northcote, (1865) 4 F & F 656, Cockburn C.J. observed:

“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”.


The authority of a teacher to correct his students is:

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.


R. v. Newport (Salop) Justices, (1929) 2 K.B. 416

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.


Reasonable professional behaviour, rather than perfection, is the norm.

Eisel v. Board of Education, (1991)

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.


8. Judicial or Quasi-Judicial Acts

No action lies for acts done, or words spoken, by a 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.


Judicial Officers’ Protection Act, 1850 grants protection to a judicial officer for any act done or ordered to be done by him in the discharge of his judicial duty.

He is protected even though he exceeds his jurisdiction provided that at that time he honestly believed that he had jurisdiction to do or order the act complained of.


Section 1 of the Act reads as follows:

“No Judge, Magistrate, Justice of the Peace, Collector or other person acting judicially shall be liable to be sued in any civil court for any act done or ordered to be done y him in the discharge of his judicial duty whether or not within the limits of his jurisdiction:

Provided that he at the time in good faith, believed himself to have jurisdiction to do or order the act complained of; and no officer of any court or other person, bound to execute the lawful warrants or orders of acting judicially shall be liable to be sued in any civil court, for the execution of any warrant or order which he would be bound to execute, if within the jurisdiction of the person issuing the same.”


Limits of such protection

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

Sailajanand Pandey v Suresh Chandra Gupta, AIR 1969 Pat. 194

The magistrate acting mala fide, illegally and outside his jurisdiction, ordered the arrest of the plaintiff. The Patna High Court held that he was not entitled to the protection given by the Judicial Officer’s Protection Act, 1850 and was, therefore, liable for the wrong of false imprisonment.


2. The protection of judicial privilege applies only to judicial proceedings as contrasted with administrative or ministerial proceedings and where, a judge acts both judicially and ministerially or administratively, the protection is not afforded to the act done in the later capacity.


State of U.P. v. Tulsi Ram, AIR 1971 All. 162

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.


They filed a suit claiming compensation of Rs. 2,000 from the judicial officer and the State of U.P. stating that their arrest before their relations and friends on the day of Holi festival had caused much humiliation, disgrace, physical discomfort and mental suffering to them.


The lower appellate court held that the judicial officer was protected by the Judicial Officer’s Protection Act, 1850 but the State of U.P. was vicariously liable and passed a decree of Rs. 500 against the state of U.P.


The Allahabad High Court, on an appeal made by the State of U.P. held that the State was not liable because the act done by its servant was in the discharge of his duties imposed by law.

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.


9. Mistake

The general rule is that mistake, whether of the law or of 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 ignorantia legis non excusat i.e. ignorance of the law is no excuse, applies.


In respect of a mistake of fact, there are some exceptions to the rule. They are:

Malicious Prosecution: If a police officer or private prosecutor commences a prosecution under the mistaken belief that the plaintiff is guilty but the plaintiff turns out to be innocent, this will provide a defence to an action for malicious prosecution.

False Imprisonment: If a police officer, without a warrant, arrests the plaintiff in the mistaken belief of reasonable suspicion that a person has committed an arrestable offence, the police officer is not liable for false imprisonment. The police officer has to show he had grounds for his beliefs.


A trespass to land is actionable per se. so a trespass on to land which the trespasser mistakenly but honestly believes belongs to him, or he believes he has right of entry to, can be liable for trespass.


10. Contributory Negligence/Plaintiff’s own default

This defence is normally raised to actions for negligence.

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

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

In England, the Law Reform (Contributory Negligence) Act, 1945 provides that in such cases the court shall reduce the damages by an amount proportionate to the claimant’s share of responsibility.


Sayers v. Harlow (1958)

Mrs Sayers found herself locked in a public lavatory. Unable to summon help, she tried to climb out over the top of the door. She found this impossible and, when climbing back down, allowed her weight to rest on the toilet roll which ‘true to its mechanical requirement, rotated’. Mrs. Sayers fell and was injured.

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.


Stapley v. Gypsum Mines Ltd (1953)

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

Froom v. Butcher (1976)

A front seat passenger injured in a car accident had his damage reduced by 25% because he had not worn a seat belt.


Questions…if any?


Thank You!

justification in tort

Documents

symbiosis law school

free consent

law of torts

implied consent

essentials consent

jibbed c

fit injuria consent

express consent illustration