MODULE- IV-DEFENCES.pptx

I. Volenti non-fit Injuria
II. Necessity, Plaintiff’s default
III. Act of God
IV. Inevitable accidents
V. Private defenses
VI. Statutory Authority
VII. Judicial Acts
Legal Text-
Indian Penal Code, 1860
Judicial Officers Protection Act, 1950
2

 Law of torts has to look to the plaintiff who claim
protection to his right’s; it has also to consider the
defendant who affirms his liberty to act with in certain
limits.
 The law has thus to strike a balance between these
conflicting and warring interests, and to achieve a sense
of fairness. This it does by allocation of responsibilities
and adjustment of losses.
 In doing so the law allows immunities to certain class of
persons, and grants defenses or exemption in case of
certain situations and occasions. It is therefore aptly said
by the jurists that these are the rules of immunities or
conditions which in general exclude or negative liability

 These exception or defenses are general, and
applicable to many of the torts but they are not
all; there are other defenses too, which are
peculiar to particular wrongs and they have been
dealt with at their appropriate places;
 For example the defence of contributory
negligence is available in an action for
negligence and that of privilege can be availed of
in an action for defamation.

MEANS-
“One’s consent is a good defence against oneself’’
.. "to a willing person, no injury is done" or "no injury is
done to a person who consents”- is a common law
doctrine
which means that if someone willingly places
themselves in a position where harm might result,
knowing that some degree of harm might result,
they cannot then sue if harm actually results.

EXAMPLE- IMPLIED CONSENT
INJURIES IN SPORTS
a boxer consents to being hit, and to the injuries
that might be expected from being hit, but does not
consent to (for example) his opponent striking him
with an iron bar, or punching him outside the usual
terms of boxing

 Express / Implied consent
 Essential condition of defence
i. Free consent
ii. knowledge- scienti non fit injuria
 Exceptions –
i. illegal consent
ii. Breach of statutory duty
iii. Negligence
iv. Rescue cases
v. Unfair Contract Terms Act, 1977 - UK

 FACTS-
 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 a collision between
two cars, one of which was thrown among the
spectators, thereby injuring the plaintiff.
 HELD-
 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.

FACTS-
 While the driver was taking the jeep for filling petrol in
the tank, two strangers took lift in the jeep. Suddenly
one of the bolts fixing the right front wheel to the axle
gave way toppling the jeep.
 The two strangers were thrown out and sustained
injuries, and one of them died as a consequence of the
same.

 HELD-
 Neither the driver nor his master could be made
liable,
 first, because it was a case of sheer accident and,
 secondly, the strangers had voluntarily got into the
jeep and as such, the principle of volenti non fit
injuria was applicable to this case.

 Where the defence of volenti applies it operates as a
complete defence absolving the Defendant of all liability.
 It is often stated that the Claimant consents to the risk of
harm, however, the defence of volenti is much more limited
in its application and should not be confused with the defence
of consent in relation to trespass.
 Illot v Wilkes [1820] and Bird v Holbrook [1828]
 A landowner who placed spring guns on his land to keep of
poachers was not liable to trespasser who was shot. In Bird’s
case landowner was made liable, who keep dangerous things
in his premises without notice.

1. The claimant was fully aware of all the risks
involved, including both the nature and the
extent of the risk; and
2. The claimant expressly (by his statement) or
impliedly (by his actions) consented to waive all
claims for damages.
3. His knowledge of the risk is not sufficient:
sciens non est volens ("knowing is not
volunteering").
4. His consent must be free and voluntary, i.e.
not brought about by duress.

 The consent must be voluntary and freely entered for the
defence of volenti non fit injuria to succeed. The consent
must not have been induced by fraud, compulsion,
coercion, undue influence, misrepresentation, mistake
etc. moreover the act done by the defendant must be the
same for which the consent is given.
 Example : if a guest is invited to sit in the guest room
and without any authority he enters the bedroom, he is
liable for trespass.
 If the Claimant is not in a position to exercise free
choice, the defence will not succeed.

 When a person is incapable of giving consent because of his
insanity or minority, consent of such person’s parents or
guardian is sufficient.
 Consent obtained by fraud is not real.
 R v Williams (1923) 1 KB
 The facts are that the appellant was the choirmaster at a
Presbyterian church, and it was arranged that he should give
lessons in singing and voice production to Vera Howley, a
girl of sixteen years of age, and subsequently it was arranged
that he should give lessons to Ada Mary Cannell, a girl of
nineteen years of age.

 HELD: J. BRANSON
 ‘The law has laid it down that where a girls consent is
procured by the means which the girl says this prisoner
adopted, that is to say, where she is persuaded that what is
being done to her is not, the ordinary act of sexual
intercourse but is some medical or surgical operation in
order to give her relief from some disability from which
she is suffering, then that is rape although the actual thing
that was done was done with her consent, because she
never consented to the act of sexual intercourse.
 She was persuaded to consent to what he did because she
thought it was not sexual intercourse and because she
thought it was a surgical operation.

 Master – Servant relationship
 The servant may sometime be faced with the
situation of either accepting the risky work or
losing the job. But if a workman adopts a risky
method of work of his own free will he can be
met with the defence of volenti non fit injuria

 The plt. a cart driver was asked by the def foreman
to drive a horse which to the knowledge of both,
was liable to bolt. The plt. protested but ultimately
took out the horse in obedience to the order. The
horse bolted and the plt. was injured thereby.
 HELD - Scott LJ
 .. “A man cannot be said to be truly willing unless he
is in a position to choose freely, and freedom of
choice predicates, not only full knowledge of the
circumstances on which the exercise of choice is
conditioned, so that he may be able to choose wisely,
but the absence from his mind of any feeling of
constraint so that nothing shall interfere with the
freedom of his will.

 Facts - The plaintiff and his brother were certificated
and experienced shotfirers employed by ICI Ltd in a
quarry owned by the defendant company.
 Part of the brothers' work included wiring up detonators
and checking the electrical circuits. There was an old
practice where a galvanometer was applied directly to
each detonator for testing purposes.
 This practice was known to be dangerous and was
outlawed by statutory regulation.
 The plaintiff claimed his brother was 50 per cent to
blame for the explosion and the employer was vicariously
liable. The plaintiff was awarded half of the total
amount of damages. The defendant appealed.

 HELD –
 The plaintiff and his brother were both experts.
 They freely and voluntarily assumed the risk involved in
using the galvanometer.
 There was no pressure from any other source.
 To the contrary, they were specifically warned about
complying with the new safety regulations.
 The defence of volenti non-fit injuria will apply when
there is true and free consent to the risk.

 The employers were not liable because –
The defence of volenti non fit injuria should be
available where the employer is not himself in
breach of statutory duty and
 is not vicariously in breach of any statutory duty
through neglect of some person of superior rank
to the plaintiff and
 whose commands the plaintiff is bound to obey,
or who has some special and different duty of
care.

FACTS-
 The claimant was a photographer at a horse show.
He was situated within the ring of the horse show
and not behind the barriers where the spectators
were housed. He was on a bench with a Miss
Smallwood who was a director of the company
which employed the Claimant.
 He had been taking little interest in the
proceedings and was not experienced in regard to
horses. During the competition, one of the horses,
Work of Art owned by the Defendant, came
galloping at great speed towards the bench where
they were sitting.

 The Claimant took fright at the approach of the
galloping horse and attempted unsuccessfully to pull
Miss Smallwood off the bench. He stepped or fell
back into the course of the horse which passed three
or few feet behind the bench, and was knocked down.
 Plaintiff- brought an action in negligence arguing the
rider had lost control of the horse and was going too
fast.
 Defendant- raised the defence of volenti non fit injuria.

HELD:
There was no breach of duty so the Claimant's
action failed. Error of judgment or lapse of skill
on the defendant’s part will not make him liable
in a horse show.
On the issue of volenti non fit injuria
HELD- consent to the risk of injury was
insufficient. There must be consent to the breach
of duty in full knowledge of the nature and
extent of the risk.
Diplock LJ: "The maxim in English law presupposes a tortuous act by the
defendant. The consent that is relevant is not consent to the risk of injury
but consent to the lack of reasonable care that may produce that risk…
and requires on the part of the plaintiff at the time at which he gives his
consent full knowledge of the nature and extent of the risk that he ran”..

Novus Actus Interveniens
FACTS-
A horse pulling one of the defendant's vans was seen running
loose without a driver. It left the roadway onto private land.
The driver caught up and called for help. The plaintiff jumped
into the field and was injured trying to restrain the horse.
There was evidence that the horse had bolted twice before.
HELD-
Any negligence of the defendants did not contribute to the
accident. The plaintiff's actions amounted to a novus actus
interveniens, and since he must have expected to run a risk of
injury, they also allowed the defence of volentia non fit injuria

 FACTS-
 The Claimant sued his employers for injuries
sustained while in the course of working in their
employment. He was employed to hold a drill in
position whilst two other workers took it in turns to
hit the drill with a hammer. Next to where he was
working another set of workers were engaged in
taking out stones and putting them into a steam
crane which swung over the place where the
Claimant was working. The Claimant was injured
when a stone fell out of the crane and struck him on
the head.

 The Defendant raised the defence of volenti non fit injuria
in that the Claimant knew it was a dangerous practice
and had complained that it was dangerous but
nevertheless continued.
HELD-
 The appeal was allowed. The Claimant may have been
aware of the danger of the job, but had not consented
to the lack of care. He was therefore entitled to recover
damages.

Lord Watson:
“A man is not bound to fly from a risk
from which it is another’s duty to protect
him merely because the risk is known.
“Where a servant has been subjected to
risk owing to a breach of duty on the
part of his employer , the mere fact that
he continues his work ,even though he
knows of the risk and does not
remonstrate ,does not preclude his
recovering in respect of the breach of
duty , by reason of the doctrine of volenti
non fit injuria .

Cases of Drunken Driver & Volenti
FACTS-
 Miss Dann was the passenger in the car of
Mr. Hamilton. While entering the car she knew
that Hamilton was under the influence of drink.
Knowing his conditions she could have travelled by
an omnibus or taxi, but chose to remain in the car.
There was an accident due to the negligence
of Hamilton, the driver of the car, which resulted in
injuries to Miss Dann.
 The question in this case was, whether the maxim,
`volenti non fit injuria' is applicable?

 Asquith J., held that the maxim did not apply and
that she could recover damages on the ground that
the plaintiff,
 "by embarking in the car with knowledge that
through drink the driver had materially reduced his
capacity for driving safely, did not impliedly consent
to, or absolve the driver from liability for, any
subsequent negligence on his part whereby the
plaintiff might suffer harm."

FACTS-
 The plaintiff and defendant spent the evening on a
pub crawl together. The plaintiff accepted a lift
home with the defendant although he knew the
defendant was drunk. The defendant drove
negligently and the plaintiff received serious injuries
in a crash.
 The defence of volenti was held to be inappropriate,
but the plaintiff’s damages were reduced for his
contributory negligence in riding with a drunken
driver and failing to wear a seat belt.

 In these cases the claimant is aware of the risk but
does not consent to the act of negligence that causes
their injury.
 It was pointed out in Dann v Hamilton that the
defence could apply in cases where: the drunkenness
of the driver at the material time is so extreme and so
glaring that to accept a lift from him is like engaging in
an intrinsically and obviously dangerous occupation,
intermeddling with an unexploded bomb or walking
along on the edge of an unfenced cliff.

1. Illegal consent- no consent can legalise an
unlawful act. Example- Fighting with naked fists
or duel with sharp swords.
2. Breach of a statutory duty- it is no answer to claim
made by a workman against his employer of a duty
imposed on him by a statute.
3. Negligence
 Bradon v Osborne ( skylight case)
 Dr.Lsxman Balkrishnan v. Dr. Trimbak Bapu (AIR 1969 SC
128)-Negligence in giving anaesthesia.

4. Rescue cases-
Haynes v Harwood (1935) 1 KB 146
Wagner v International Railway (1921) 232 NY
Baker v TE Hopkin and Son (1959) 3 All ER
Videan v British Transport Commission (1963) 2 QB
5. Unfair contract terms Act, 1977-
Section 2 of the act limits the right of a person to
restrict or exclude is liability resulting from his
negligence by a contract term or by notice.
Exclusion of liability by contract is possible only
if such a term or notice is reasonable.

 When the plaintiff consents to take risk the presumption is
that the defendant will not be negligent.
EXAMPLE-
 Where a player negligently or deliberately hit another with a
stick or where an operation is unsuccessful because of
surgeon’s negligence, the defendant cannot plead volenti
non fit injuria because the plaintiff never consented to an
injury in that manner.
 The act causing the harm must not go beyond the limit of
what has been consented.

FACTS-
 While plaintiff’s , husband and wife, were in a shop,
a skylight in the roof was broken, owing to the
negligence of the contractors. The glass fell and
injured the husband.
 Wife of the plaintiff upon seeing the glass falling
upon her husband "immediately and instinctively" . .
. . tried to pull her husband from the spot. In her
effort to pull him out of danger, which she
reasonably believe to exist, she injured her leg.

 "if a person is placed by negligence of the defendant
in a position in which he acts under a reasonable
apprehension of danger and in consequence of so
acting is injured, he is entitled to recover damages,
unless his conduct in all the circumstances of the
case amounts to contributory negligence.”
 Both the plaintiff’s were entitled to damages.

 When the plaintiff voluntarily take a risk even of
death to rescue some body from an imminent
danger created by the wrongful act of the defendant,
he cannot be met with defence of volenti non fit
injuria.
 The danger invites rescue. The cry of distress is the
summons to relief. However, the rescuer must not
take unnecessary risk. (cutler’s case)

FACTS-
 The plaintiff, a policemen saw a horse running
loose in the street among children. He ran out,
chased it and caught it but was injured.
HELD-
 The horse owner was liable. It was foreseeable
that if a horse was let loose in a crowd,
somebody, particularly a policeman under a
general duty to assist, would attempt to capture it
and might be injured in the process.

 The defendant could not raise a plea of volenti non fit
injuria in this case.
Greer LJ:
 "It is not necessary to show that this particular
accident and this particular damage were probable; it is
sufficient if the accident is of a class that might well
be anticipated as one of the reasonable and probable
results of a wrongful act"

FACTS-
 Mr Ward and Mr Wileman were employed by the
defendant, Hopkins. They had been called to clean out a
well. The well was 50ft deep and 6ft wide.
 Hopkins tested the atmosphere in the well by putting a
lighted candle down the well. The candle returned still
lighted and thus he concluded the atmosphere was fine.
 He and Ward then took a petrol motored pump down
the well started it up and left the well leaving the engine
running on its own. The motor ran for 1 1/2 hours
before it stopped of its own accord..

 The following morning Mr. Ward went down the well
and was overcome by fumes. Mr Wileman called for
assistance and went down the well after him.
 The claimant, Dr Baker, then arrived on the scene. He
too went into the well to seek to rescue the two.
Unfortunately all three died of carbon monoxide
poisoning. The defendant sought to invoke volenti non fit
injuria.

The claimant's action was not defeated by volenti
non fit injuria. He was a rescuer and as such his
actions did not count as freely and voluntarily
accepting the risk.

 In several cases as under the Factories Act,
many duties have been imposed upon the
employer. If the employer commits a breach
of statutory duty, he is liable regardless of
the consent of the employee. Thus, consent
to a breach of statutory duty is not
acknowledged.
 Baddeley v. Granville (1887) 19 QBD 423

 Limitation on volenti-
 According to section 2(1), defendant will be liable
for death or personal injury caused by his negligence
even if he has obtained consent of the plaintiff by
making a contract or notice to that effect.
 Section 2 (2) provides that where the damage to the
plaintiff is other than personal injury or death
caused by defendant's negligence, the defendant can
be excluded from liability only if the terms of
contract or notice satisfy the requirement of
reasonableness.

 The defence of volenti non fit injuria requires
 a freely entered and voluntary agreement by the
Claimant,
 in full knowledge of the circumstances,
 to absolve the Defendant of all legal consequences of
their actions.
 There is a considerable overlap with contributory
negligence and since the introduction of the Law
Reform (Contributory Negligence) Act 1945, the courts
have been less willing to make a finding of
volenti preferring to apportion loss between the parties
rather than taking an all or nothing approach.

 It is not easy for a defendant to show both elements
and therefore contributory negligence usually
constitutes a better defense in many cases.
 However that contributory negligence is a partial
defence, i.e. it usually leads to a reduction of payable
damages rather than a full exclusion of liability.
 Also, the person consenting to an act may not always be
negligent: a bungee jumper may take the greatest
possible care not to be injured, and if he is, the defence
available to the organiser of the event will be volenti, not
contributory negligence

Sir Fredrick Pollock –
“ an operation of natural forces so unexpected to anticipate
it”. Also known as vis major in latin.
The expression ‘force majure’ is not a mere french version of
the act of god , it is a term of wide import and includes act
of god, war, riot, strike, earthquake, storm, flood etc.
Act of God was first judicially defined in Tennet v. Glosgow
(1864) by Lord Westbury and was first recognized by
Blackburn J. in Rylands V. Fletcher (1866) and was first
applied in Nichols v. Marshland
An Act of God is an inevitable accident arising out of the
working of natural forces which is beyond human control
and unprecedented in nature and type. It must be
extraordinary and unanticipated as well.

 “An Act of God in the legal sense, may be defined as
 an extraordinary occurrence of circumstance,
 which could not have been foreseen and
 which could not have been guarded against, or,
 more accurately, as an accident due to a natural cause
,directly and exclusively ,without human intervention ,
 and which could not have been avoided by any amount of
foresight and pains and care reasonably to be expected of
the person sought to be made liable for it , or
 who seeks to excuse himself on the ground of it .
 The occurrence need not be unique, nor need it be one
that happens for the first time;
 it is enough that it is extraordinary, and such as could not
reasonably be anticipated …. and it must not arise from
the act of man.”

 There must be working of natural forces like
exceptional rainfall, storms, tempests, earthquakes,
tides and volcanic erruptions without any human
intervention.
 The occurrence must be extra ordinary and not one
which could be anticipated and reasonably guarded
against.

 Accidents may happen by reason of the play of
natural forces or by intervention of human
agency or by both, but it is only those acts which
can be traced to natural forces and which have
nothing to do with the intervention of human
agency that could be said to be acts of god.
 The rule of strict liability also recognizes act of
god as a defense for the purpose of liability
under that rule.

 FACTS:
 Defendant created some artificial lakes on his land
by damming some natural streams. Once there was
a extraordinary rainfall, stated to be the heaviest
in human memory. As a result embankments of the
lake gave way. Rush of water washed away four
bridges belonging to plaintiff.
 HELD-
Defendant could not be held liable because the
loss had occurred due to Act of God.
"there was no negligence in the construction or the maintenance of
the reservoirs, but that the flood was so great that it would not
reasonably have been anticipated..

 The corp. constructed a concrete paddling pool for
children in the bed of a stream and obstructed the
natural flow of the stream. Owing to a rainfall of
extraordinary violence the stream overflowed at the pond
and damaged the property of the plaintiffs.
 It was also found that had there not been any
obstruction in the stream, water would have been safely
carried away by the stream in its natural course
 Held that the extraordinary rainfall did not absolve the
corp. from responsibility and that they were liable in
damages. An extraordinary fall of rain is a matter, which,
in our climate, cannot be called a damnum fatale. The
appellants, in constructing the culvert ought to have
foreseen the possibility of such an occurrence and to
have provided against it."

 Ramlinga nadar v Narayyana Reddiar [AIR 1971 SC]
 HELD-
 Criminal activity of a mob which robbed the goods
transported in defendant’s lorry can not be considered
as a Act of God and the defendant was held liable. It
was not an act of god as there was a human
intervention.
 "Accidents may happen by reasons of the play of
natural forces or by intervention of human agency or
by both. It may be that in either of these cases
accidents may be inevitable. But it is only those acts
which can be traced to natural forces and which have
nothing to do with the intervention of human agency
that could be said to be act of God

 The defendants, the owners of a certain cinema had
out up a huge hoarding at a crossing. During a
severe storm a banner on the hoarding collapsed and
fell on the plaintiff’s head causing a severe injury.
Held that it was a case of pure negligence and not
an act of god.

 An electric pool was uprooted and fell down
with livewire which caused death of a
person.
 Held
It was the responsibility of the grid corp.to
provide protection of storm and rain.

 MEANS- an unexpected injury, which could not have
been, avoided inspite of a reasonable care on the part
of the defendant.
 This defence is available only if the accident occurs
during the prosecution of a lawful act and not when act
done is unlawful.
 Unintentional injury and reasonable care is to be proved
by defendant to take the defence of inevitable accident.
 People must guard against reasonable probabilities, but
they are not bound against fantastic possibilities.

 The defendant was travelling in a motor-car with his dog.
He parked his motorcar in a street and left his dog inside
the shut car. The dog had no vicious propensities and was
always quiet and docile. As the plaintiff passed just by the
side of the car, the dog which had been barking and
jumping about in the car, smashed a glass panel and a
splinter entered into one of the eyes of the plaintiff which
had to be removed. The plaintiff sued the defendant for
damages.
 Lord Dunedin, holding the defendant not liable, stated
that "this is such an extremely unlikely event that I do not
think any reasonable man could be convicted of
negligence, if he did not take into account the possibility
of such an occurrence and provide against it either by not
leaving the dog in the car or by tying it up so that it could
not reach the window. People must guard against
reasonable probabilities, but they are not bound against
fantastic possibilities

 FACTS-
 P & D members of a shooting party went for
pheasant shooting. D fired at a pheasant but the shot
from his gun glanced off an oak tree and hit P in his
eye.
 Whether D liable for trespass (to P’s body)?
 HELD:
 Stanley could not prove negligence. Anything which
occurs in the course of nature and what you cannot
avoid, defence of inevitable accident is applicable.

FACTS-
 A woman standing on the sidewalk is knocked down by a
team of horses and severely injured as a result. She sues
the owner of the horses, confident that since they hit
her, she will recover damages.
 The defendant argued that the accident was unavoidable:
the groom, despite his best efforts, lost control of his
horses after a barking dog startled them.
 Although he attempted to steer the horses back on
course, he could not prevent them from running into the
plaintiff and injuring her. Since the driver had done
everything in his power to avoid the accident, he was not
negligent.

HELD-
 that for a trespass to be wrongful it must be "either as
being wilful or as being the result of negligence”.
 Bramwell B. said the driver is absolutely free from all blame
in the matter because not only he does not do anything but
endeavors to do what is the best to be done under such
circumstances.

FACTS-
 The plaintiffs placed an electric cable under
certain land. A firm of contractors employed by
the landowners to excavate a trench in the land
caused damage to the cable.
HELD-
 The defendants were not held liable. They had
no knowledge of the cable. They had no reason
to assume that there was a cable under the land.
'Inevitable accident' case.

 Under law of contract-“Ex turpi causa non
oritur actio” – from an immoral cause no action
arises
 Sir Frederic Pollock-
 The mere fact that the plaintiff himself is the
wrongdoer does not disentitle him from recovering
the loss which he suffers unless some unlawful act or
conduct of plaintiff is connected with the harm
suffered by him as part of the same transaction. [
Green v Carorol (1961) N.Z.L.R. 100 ]
 Who’s wrongful act is the determining cause of
accident?
 Case of Dilapidated Bridge and overloaded truck

FACTS-
 P (young boy) was chasing a hen, the hen went over a
fence and the P followed the hen over - behind the fence
was the D’s garden who took great pride in it - D had set
up a spring loaded gun to deter anyone who wanted to
ruin his garden, which P triggered and consequently was
injured by it.
HELD-
 D is liable and the P succeeded and recovered damages
because use of a gun could not be regarded as being
within the landowner’s privilege to take reasonable
measures to eject or deter trespassers

 It is human instinct to repel force by force, and this natural
instinct has got judicial as well as statutory recognition.
Every person, therefore, has a right to defend his own
person, property or possession against an unlawful harm.
But in defending, the force used must be in proportion to
the apparent urgency of the situation. The question of
private defence may be considered under two headings:
 1. Defence of person
 2. Defence of property

 There was an imminent and immediate danger
 The force employed was not out of proportion
 The force is employed only for the purpose of
defence
 The force should not be used by way of retaliation
after the danger is over

 If a person strikes me, I cannot be justified to
use a sword or a gun against him in self-defence.
 The force should not be excessive. What force
can be used in the particular circumstances, to
protect himself or his property, is a difficult
question to decide. However this depends on the
facts and circumstances of each case.

FACTS-
 The wall of the Toilet of the house of the
deceased had fallen down about a week prior to
the day of occurrence and so the deceased along
with others started using the toilet of the
accused. The accused protested against their
coming there.
 The oral warnings however, proved ineffective
and so he fixed up a naked copper wire across
the passage leading upto his toilet and that wire
carried current from the electrical wiring of his
home to which it was connected.

 On the day of the occurrence, the deceased went to
the toilet of the appellant and there she touched the
aforesaid fixed wire as a result of which she died soon
after.

 A trespasser was not an outlaw, a caput lupinem.
The mere fact that the person entering a land was a
trespasser did not entitle the owner or occupier to
inflict on him personal injury by direct violence and
the same principle would govern the infliction of
injury by indirectly doing something on the land the
effect of which he must know was likely to cause
serious injury to the trespasser.

 The facts were that the defendant was
passing-by the plaintiff's house. The
plaintiff's dog ran out and bit the defendant's
gaiter. The defendant when turned round and
raised his gun, the dog ran away. When the
dog was running away, he shot dead the dog.
 It was held by the court that the defendant
was not justified in shooting the dog. The
court stated that to justify shooting the dog,
he must be actually attacking the party at
the time.

 In certain circumstances intentional injury to a
person, or property may be caused and yet the
defendant may not be liable if he pleads the
defence of `necessity'.
 The defence of `necessity' is based on the
maxim `Salus populi supreme lex' which means
the welfare of the people is the supreme law.
 This maxim is founded on the implied assent of
every member of the society, that his own
individual welfare will, in cases of necessity,
yield to that of the community and that his
property, liberty and life shall, under certain
circumstances, be placed in jeopardy or even
sacrificed for public good.

 An act causing damage, if done under necessity to
prevent a greater evil is not actionable even though
harm was caused intentionally.
 Throwing goods overboard a ship to lighten it for
saving the ship or person on board the ship or for a
competent surgeon to perform an operation on an
unconscious person to save his life are the examples
of necessity.
 To prevent spread of fire to adjoining land- if
interference was not reasonably necessary – D is liable
[Carter v Thomas]
 Kirk v Gregory [(1876) 1 Ex D 55] – removed some
jewellery to another room thinking it to be safer place.
From there the jewellery was stolen.

 An Esso tank ship did not land on the harbour, but
on the property of the plaintiff. The captain had to
make the ship lighter, so he released oil.
The ship would have broken if he had not released
the oil on the land.
 This was a necessity.
 Otherwise it would have been a worse disaster.
There is the defence of necessity, but you do not
have it when you caused the necessity.

 A homeless couple decided to enter a vacant
house in order to live in it:
When they were told to be trespassers, they
claimed necessity.
 This is not necessity.
 Necessity in these kinds of cases would open a
door nobody could control (policy decision).

 The legislature has very wide powers. Any
principle of common law may be reversed by
the Act of Parliament; and so any act or
omission tortious under the common law may
be specifically made legal by a statute. It is in
this respect, that statutory authority is a
defence.

 This defense is founded on the principle, that the
law which recognizes, a right can abolish it, modify
it and regulate it. Thus, a damage resulting from an
act which the legislature authorizes or directs to be
done, is not actionable even though it would
otherwise be a tort.
 This defense has its most important application in
action of nuisance.
 EXAMPLE- a railway line is constructed, there
may be interference with private land or the
running of train may cause harm due to noise,
smoke etc.

A railway company was authorised by statute
to run a railway which traversed the plaintiff's
land. Sparks from the engine set fire to the
plaintiff's woods.
The railway company was not liable.
It had taken all known care to prevent
emission of sparks; the running of
locomotives was statutorily authorised.
Case of statutory authorization of a
dangerous activity is a defence.

 The servants of a rly. Co. negligently left
trimmings of grass and hedges near a rail line.
Sparks from an engine set the material on fire.
By a heavy wind the fire was carried to the
nearby plaintiffs cottage, which was burnt. Since
it was a case of negligence on the part of railway
co., they were held liable.

 The statute may give absolute or conditional
authority for the doing of an act.
 If absolute, no liability for nuisance eg. Railways
Act.
 If conditional, the act authorised can be done
provided the same is possible without causing
nuisance or some other harm.
 Metropolitan asylum district v Hill 1881(small pox
hospital)

 If a judge or a judicial officer acts within his
jurisdiction, "no action lies for acts done or words
spoken by a judge in the exercise of his judicial
office, although his motive is malicious and the acts
or words are not done or spoken in the honest
exercise of his office.
 This rule of judicial immunity from liability is based
on the principle of public benefit that judges or
judicial officers should be at liberty to exercise their
function with independence and without fear of
consequences.

 It is better to take the chance of judicial
incompetence, irritability, or irrelevance, than to run
the risk of getting a Bench wrapped by apprehension
of the consequences of judgments which ought to be
given without fear or favour.
 Moreover there are other modes of remedies for
judicial misconduct even if there is no civil remedy.
For example, the remedy for judicial error is some
form of appeal to higher court; and the remedy for
judicial corruption is criminal prosecution or removal
of the judge.
 The above rule of English Law has been extended to
judicial officers in India by the Judicial Officer's
Protection Act, 1850.

MODULE- IV-DEFENCES.pptx

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