Justification of Tort: Law of Torts and Consumer Protection Act

Law of Torts and Consumer Protection Act
Justification of Tort
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.
C J Rawandale, Associate Professor 2

Email: cjrawandale@live.in
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
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
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.

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.
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.
Hockey, Cricket- Raman Lamba & Eknath Solkar

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
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”.
Illustrations
The falling of a tree, a flash of lightening, a tornado, storms, tempests,

tides, volcanic eruptions, 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 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.

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.

E.g. 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 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.
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!


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Law of Torts and Consumer Protection Act

Volenti Non Fit Injuria (consent or leave and license);

C J Rawandale, Associate Professor 2

It means ‘where the suffer is willing, no injury is done’.

In other words, when a person consents to the infliction of some harm

C J Rawandale, Associate Professor 3

A player in the games of cricket, hockey, rugby or boxing is deemed to

C J Rawandale, Associate Professor 4

Consent must be free;

Consent cannot be given to an illegal act;

C J Rawandale, Associate Professor 5

The consent is not free if it has been obtained by undue influence,

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

The plaintiff was employed by the defendant on a barge, and plaintiff

C J Rawandale, Associate Professor 6

The plaintiff was a spectator at a motor car race being held at

C J Rawandale, Associate Professor 7

C J Rawandale, Associate Professor 8

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

Hockey, Cricket- Raman Lamba & Eknath Solkar

C J Rawandale, Associate Professor 9

Smith v. Charles Baker & Co, [1891] AC 325

In this case, the plaintiff worked in a cutting on the top of which a

C J Rawandale, Associate Professor 10

C J Rawandale, Associate Professor 11

The defendant negligently left his horses unattended in a crowded

C J Rawandale, Associate Professor 13

A well was filled with poisonous fumes of a petrol driven pump on

Volenti Non Fit Injuria is a complete defence, whereas in contributory

C J Rawandale, Associate Professor 15

Act of God may be defined as

“circumstances which no human foresight can provide against any of

The falling of a tree, a flash of lightening, a tornado, storms, tempests,

C J Rawandale, Associate Professor 16

There must be working of natural forces without any intervention from

The occurrence must be extraordinary and not one which could be

C J Rawandale, Associate Professor 17

The defendant constructed three artificial lakes which were fed by a

An extraordinary rainfall burst the banks of artificial lakes on the

C J Rawandale, Associate Professor 18

A. Krishna Patra v. Orissa State Electricity Board, AIR 1997

The Orissa High Court defined ‘Inevitable accident’ as an event which

C J Rawandale, Associate Professor 19

It was held that the defendant was not liable.

C J Rawandale, Associate Professor 20

In this case a colliery company preceded the National Board, had

C J Rawandale, Associate Professor 21

This is intentional damage to prevent even greater destruction or in

The exception of necessity is based on the maxim Salus Populi

C J Rawandale, Associate Professor 22

C J Rawandale, Associate Professor 23

C J Rawandale, Associate Professor 24

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

The defence is available if the act complained of was reasonably

C J Rawandale, Associate Professor 25

Nothing is an offence merely by reason of the being done with the

Explanation: It is a question of fact in such a case whether the harm to

C J Rawandale, Associate Professor 26

A, in a great fire, pulls down houses in order to prevent the

Here, if it be found that the harm to be prevented was of such a nature

C J Rawandale, Associate Professor 27

A person placed poison in his toddy pots, knowing that if taken by a

C J Rawandale, Associate Professor 28