General Defenses In Tort

in Liability

General defenses in Tort-

  1. Volenti non fit injuria, or the defenses of Consent.
  2. Plaintiff the wrong doer.
  3. Inevitable accident.
  4. Act of God.
  5. Private Defense.
  6. Mistake
  7. Necessity.
  8. Statutory authority.

Volenti non fit injuria- Damage suffered by consent is not a cause of action. When a person consents to the infliction of some harm upon himself he has no remedy for that in tort. consent to suffer the harm may be express or implied.

For example-

You invite somebody to your house you cannot sue him for the trespass.

You can not sue a surgeon after giving the consent to perform certain act.

A going to on a highway he presume a risk of high accident.

For the defense to be available, the act causing the harm must not go beyond the limit of what he has been consented.

Thomas v.s  quartermaine- court held that defendant was not liable because the danger was visible and the plaintiff appreciated and voluntarily encountered the same.

For example-

A is drowning in a water pool. To rescue him B jumped into the water. While doing so B sustain some injuries. B cannot claim compensation from A, as he done this act voluntarily.

Essential of Consent-

The consent must be free from coercion, un due influence, fraud, and misrepresentation. If the consent influence by such characteristic then the plaintiff entitle for the damage.

Lakshmi Rajan v.s Malar Hospital ltd.

the complaint A 40 years women noticed a development of a painful lump in her breast. But the hospital during operation also remove his uterus which has no connection whit hir lumps.

The hospital is liable for deficiency of service. It was also held that the patients consent for the operation did not imply.

Volenti fit non injuria  maxim declare two essential-

  1. The injured knew that there was a risk in the act.
  2. Knowingly there was a risk he invited it.

In wooldrige vs summer- court held that the plaintiff himself invited the risk of photography the horse. He is not entitle for any damages.

Limitation of volenti non fit injuria.

It is the responsibility of the owner of the place where every time risk of potential dangerous or it is hazardous area.

Smith v.s Baker – court held that mere knowledge on the part of plaintiff was not sufficient. The defendant ought to have take due care and diligence.

Principle laid down- A person willingly undertake to do the work which is intrinsically dangerous notwithstanding that care has been taken to make it as little intrinsically dangerous as possible.

Dann v.s Hamilton- court rejected the defense of volenti fit non injuria- as the lady know the driver was under the effect of alcohol agreed to travel with him and the drive mat an accident.

Case reference-

Rylands v. Fletcher- Principle of strict liability- use of unnatural use of land which on the harm of other rights.

Vicarious liability

Generally a person is liable for his own wrongful act and one does not incur any liability for the acts done by other. In vicarious liability one's liability of act done by other.

Principle and its agent. (joint liability)- when a agent commits a tor in the course of performance of his duty as an agent, the liability of the principle arises for such wrongful act. It is based on the general principle of qui facit per alium facit per se. which meansthat the act of an agent is the act of the principle and done by the agent both are jointly liable. The authority to do the act may be express or implied. The agent perform such act in the course of his normal course of duty.

In State of India v.s Shyam Devi- SC held that employee when he committed the fraud, was not acting in the scope of bank's employment but in his private capacity as the depositor's friend, therefore the bank is not liable vicariously.

  1. Partners- in ordinary course of business other partner is vicariously liable.
  2. Master and servant- the doctrine of vicarious liability is based on the maxim  respondent superior- let the principle liable. It was held in limpus v. London general omnibus cp- the liability arises even though the servant acted against the express instructions, and for no benefit of the master.

For the liability to the master to arise, the following two essentials

  1. The tort committed by the Servant.
  2. The servant who committed the tort  in the course of the employment.

Who is the servant- A person employed by another to do work under the direction and control of his master.- Master is liable only for his servant and not for the tort of independent contractor.

Exceptions-

Rylands v.s Fletcher-   the employer could not escape from the damage caused to plaintiff.

Servant not under control of the master- Example- Captain of a ship or a Surgeon in the Hospital

Make liable to the master sustain the damage caused.

  • Negligence of the servant.
  • Fraud.
  • Theft
  • Delegation of authority by servant.
  • Effect of Express prohibition.
  • Doctrine of Common Emplacement-

Master is not labile for servant act-

  • In forbidden act.
  • Express prohibition ( Position in India)

Vicarious liability of the state

 

Position in England

The crown could not be sued in tort. Either for wrong actually authorized by it or committed by its servant. No action could lie against the head of the department or the superior officials for the acts of their subordinates.

The position has been entirely changed

after the passing of the Crown Proceedings Act 1947.  Now the crown is liable for a tort committed by its servant.

Position in India.

Art 300 of Constitution of India define that the Union and the State legislature is the Jurist Person for the purpose of suit or proceedings.

Although the UOI  and State Government can sue and be sued but the circumstances under which that can be done have not been mentioned.

A/c Art 300- the UOI and the State government can sue and can be sued before the commencement of the constitution.

To know the present position as regards the liability of the state for tortuous acts, we have to go to the pre constitution days.  Sec 176 of Government of India Act 1935 says – the present constitution does not give the circumstances of the government liability.

In Stem Navigation Company v. s Secretary of State for India-  the plaintiff filed a suit against the Secretary of State for India for the damage caused by the servant of East India Company.

The court held that- if the act was done in the exercise of sovereign functions, the East India Company would not have been labile, but if the function not sovereign then the company is labile.

In Rup Ram v.s State of Punjab- could held that rejected the plea of the government that – the truck was carrying materials for the construction of a bridge and was under the discharge of sovereign function as government along could not be liable of tort.

Court held that- State was held to be exactly similar in exactly similar in extent and naute to that of an ordinary employer.


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Naveen Kumar Shelar has 1 articles online

Hi, my name is Naveen Kumar Shelar. I reside in New Delhi, India currently employed full time as a Facility & Administration Professional .

I started out as a Executive Administration late in 2005 evolved into a Facility & Administration with time and now I'm into New office development and Planning . I am mostly involved in new office infrastructure planning, procurement development, execution, and operations, not only this but I love to policies and procedure drafting for office operations.

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My father and my mother has been a great source of inspiration for my life.

Specialties: New office set up and it's whole life cycle, in technology driven organizations. Competitive analysis, process compliance & improvements, policy and procedure drafting, legal Agreement drafting.

Education:

  • Ch. Charan Singh University Meerut- L.L.B (3 years) 2009- perusing
  • Symbiosis institute of Management Studies- MBA, Operations.
  • Himachal Perdesh University- MA, History.
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General Defenses In Tort

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This article was published on 2010/10/13