Justification in Tort By Assistant Professor Shri Shivaji

Justification in Tort By Assistant Professor Shri Shivaji Law College, Parbhani, Maharashtra contact: waseemikhan 03@gmail. com

Introduction O Plaintiff try to win the case by proving the essential of tort. O Similarly defendant also tries establishing some defenses. to win by

Defenses/ Justification for Torts 1. Volenti Non fit Injuria O When a person consents for infliction of a harm upon himself, he has no remedy for that in Tort. O That means, if a person has consented to do something or has given permission to another to do certain thing, and if he is injured because of that, he cannot claim damages. O For example, A purchases tickets for a Car race and while watching the race, an collision of cars happens and the person is injured.

Defenses/ Justification for Torts 1. Volenti Non fit Injuria O Consent to suffer the harm may be express or implied. O Express consent: Consent given to doctor. O Implied consent: Cricket & football match. Essentials of Volenti non fit injuria. O Following are the essentials of volenti no fit injuria.

Volenti non fit injuria A. Consent must be freely given. Woolridge v. Summer 1963

Volenti non fit injuria Hall v. Brookland Auto Racing Club

Volenti non fit injuria B. Not for illegal act. O No consent can legalize an unlawful act or an act which is prohibited by law. O It was observed that no person can give consent to another person to commit a crime. O Example: Fighting with naked fist. Duel with sharp sword.

Volenti non fit injuria Exemption to the maxim. i) Consent under compulsion or fraud. ii) Negligence of the defendant. O The defense does not extend to the acts done negligently. O The surgeon cannot plead the defense if he performs the operation negligently. iii) Rescue cases. O When plaintiff voluntarily faces a risk to rescue someone from imminent danger created by the defendant. O Case: Brandon v. Osborne O Falling of sky light.

Act of God/vis major O It literary means an act of nature independent of human intervention. O Which cannot be foreseen by any amount of human ability and skill. O If seen cannot be prevented by any means, care and skill. Earthquake Lightening Heavy Rainfall Flood

Act of God/vis major Essentials. 1) There must be working of natural force. 2) The occurrence must be extraordinary and not one which could be anticipated and reasonably guarded against. Case: Nicholas v. Marshland Gajayalakshmi v. Secretary PWD Madras. O Plaintiff electrocuted by falling of an over head electric wire.

Inevitable Accident O Accident means an unexpected occurrence of something that could not have been predicted or prevented. O In such a case, the defendants will not be liable if they had no intention to cause it and if the plaintiff is injured because of it.

Inevitable Accident O Harnam singh v. R. P. Auto Aid. O Bursting of tire. O Padmavati v. Dugganaika. O Accident due to dislodging of wheel from axle. O Holmes v. Mather. Horse driving on road.

Plaintiff the wrongdoer. O No court will aid a person who found his cause of action upon an immoral or an illegal act. O Maxim Ex turpi causa non oritur actio. Means from an immoral cause no action arises. O E. g. going wrong side. O Case: Bird v. Halbrook. O Plaintiff injured due to spring gun. Nullum commodum capre potest de injuria sua propria. Means no man can take advantage of his own wrong.

Private Defense. O Law permits use of reasonable force to protect ones person or property. O If the person uses the force which is unnecessary for self defense. O Case: Ramanuja v. M. Gangan. O Electric wire.

Necessity O This exception is based on the maxim salus populi suprema lex, means the welfare of the people is supreme law. O Welfare of the community comes first compared to individual welfare. O To prevent greater harm slight harm is permitted. O Shakespeare says necessity knows no laws. O E. g. medical assistance or operation without consent of the plaintiff during emergency. O Carter v. Thomas. O Fire accident occurred in the plaintiff premises.

Necessity Restrictions. 1) In the first place the defense will not succeed if the necessity has arisen out of the negligence act of the defendant himself. 2) there must be real or imminent danger to the person or property. 3) Distinction is maintained between safety of human lives and safety of property for obvious reason.

Statutory Authority. O When a person suffers injury because of an act authorized by the legislature, he cannot have any remedy except as allowed by the statute itself. O Railways cause injuries by way of noise, smoke and vibration but action will not be possible. O Bhogilal v. Municipality of Ahmedabad. O Municipality demolished a wall of plaintiff. O Hammer smith Rail. Co. v. Brand. O Value of land depreciated due to the railway track.

Parental & Quasi parental authority O Parents can punish their children with a purpose to correct them. O Parents can also not justify arbitrary punishment for unlawful commands to the child. O E. g. when the father orders his son to commit a crime.

Judicial Act O No action lies for acts done, or words spoken, by a judge in exercise of his judicial office, although they may be malicious. O 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.

Act Causing slight harm. O De minimis non curat lex, the law does not take account of trifles. O Nothing is a wrong of which a person of ordinary sense and temper would not complain.

Conclusion O Above defenses are available for the defendant and he can avoid the liability by taking and proving one of the defense.