Law Of Torts Project

TAMIL NADU NATIONAL LAW SCHOOL TIRUCHIRAPPALLI

I YEAR I SEMESTER BA LLB (HONS.) DEGREE COURSE

LAW OF TORTS

GENERAL DEFENCES UNDER LAW OF TORTS VOLUNTI NON-FIT INJURIA

Name of the Supervisor: Golda Sahoo Submitted by Shwathini K BA LLB (Hons.) 1st year BA0150044 Tamil Nadu National Law School Tiruchirappalli

Marks Awarded:

1 | Page

ACKNOWLEDGEMENT It is a genuine pleasure to express my deep sense of thanks and gratitude to my course professor Prof. Golda Sahoo, Tamil Nadu National Law School, Tiruchirapalli, Tamil Nadu. Her direction and his overwhelming attitude to help his students had been solely and mainly responsible for completing my work. Her timely advice, meticulous scrutiny and scholarly advice helped me to a very great extent to accomplish this task. I am extremely thankful to my friends and parents who have been a moral support for me and helped me in times of difficulties.

2 | Page

DECLARATION I, Shwathini K, hereby declare that the project entitled “GENERAL DEFENCES” submitted by me to Tamil Nadu National Law School, Tiruchirapalli, Tamil Nadu, as a part of Internal Assessment for Law of Torts paper, is a record of an original work done by me under the guidance of Prof. Golda Sahoo. This report has not been previously submitted for any examinations/Institutes/Universities. Date: 20-11-2015 Place: TNNLS, Trichy

Signature Shwathini K

3 | Page

RESEARCH METHODOLOGY The project on “General Defences under Law of Torts”, was completed with the help of various books and websites which gave vast and great information about the topic concerned. Also, the case analysis on Master Naveen v. Sh. Sikander tells about the use of these defences, volunti non-fit injuria, in particular. Also, the classes and the lectures based on the general defences proved to be helpful in the preparation of the project on “General Defences under Law of Torts”.

Objective: The objective of the project is to observe various situations where the general defences under law of torts prove to be helpful. I chose this topic because, it was interesting as to how the accused can be relieved of all the charges with the help of these defences, and to observe how it backfires for the appellant themselves.

4 | Page

INDEX General Defences...………………………………………………………………………… 6 Volunti non-fit Injuria.……………………………………………………………………... 7 Cases regarding the topic: Gillick v West Norfolk & Wisbeck Area Health Authority…………………………7 Khimji V. Tanga Mombasa Transport Co. Ltd.:…………………………………… .8 R v. Williams………………………………………………………………………. .8 Murray v Harringay Arena Ltd ……………………………………………………. .9 Blake v Galloway…………………………………………………………………….9 Case analysis on Master Naveen v. Sh. Sikander ...……………………………………….. 11 References…………………………………………………………………………………..14

5 | Page

GENERAL DEFENCES "Defense" bears a few implications in the tort connection and a lot of perplexity has been brought forth by courts and analysts to make their proposed significance clear. Routinely, the word “protection” is utilized to allude to those contentions which when utilized influences the court to infer that the litigant for a situation is not liable. The word defence when used in relation to these rules encompasses the principles that limit the relief a plaintiff is entitled to. Some remedy restricting rules cut back the plaintiff’s entitlement to damages, such as the provision for apportionment for contributory negligence and the doctrine of mitigation of damage. Others prevent the plaintiff from enjoying particular remedies completely. Another very important point to be discussed while talking about defences in any law is the concept of “onus of proof”. When in any law the burden of proof shifts from one party to another, the use of that principle of law as a defence is affected. These are the four fundamental concepts of defence and the different ways in which it is to be construed. The defences are: 1. Consent 2. When plaintiff is the wrongdoer 3. Inevitable accident 4. Act of God 5. Act in relation to Private Defence 6. Necessity 7. Act done in respect to statutory authority

Now, the defence of Volunti non-fit injuria and its use in different situations is specified as follows:

6 | Page

VOLUNTI NON-FIT INJURIA

When a tort is committed, a plaintiff’s consent will excuse the defendant of the wrongdoing. Consent occurs when a plaintiff displays a willingness to participate in the defendant’s conduct. This consent can be expressed or implied. One of the most widely stated examples in this sense is that of a person who is hit by the ball while watching a match in a cricket stadium. The general understanding here is that when the person bought the ticket to watch the match itself he agreed or consented to suffer any such damage or face any such risks and so the players or stadium authorities are absolved from any sort of liability arising out of such an accident. The defendant may infer consent from the plaintiff’s actions the way any reasonable man would. In some cases, silence and inaction may manifest consent when it is reasonable to assume that a person would speak or act if he objected to the defendant’s actions. Also, if certain behaviour was previously consented in the past, the defendant may continue to regard this behaviour as acceptable until he is told otherwise. Suppose A owns a library and B his friend often comes and borrows books without necessarily informing A always and A too doesn’t have any objections to this, then B can assume that he has A’s consent always and can continue to borrow books unless expressly told not to do so by A. Consent may not always excuse a defendant of liability. Sometimes consent is ineffective under certain conditions. If the plaintiff lacks the capacity to consent, is coerced into consenting, or consents under false pretences, the consent is not valid as a defence to the tort. Incapacity to give consent may arise due to the factors of insanity, intoxication or infancy. It may also arise due to temporary abnormalities like someone under the effect of a drug or alcohol or someone who is in a very stressful situation, or due to a permanent mental illness or disorder. This incapacity must interfere with the plaintiff’s ability to weigh the benefits and consequences of the defendant’s suggested conduct. A person suffering from bouts of insanity cannot be expected to be able to give proper consent and anyone who takes advantage of that fact and puts him under any risk of injury shall not have the defence of consent. Gillick v West Norfolk & Wisbeck Area Health Authority:

7 | Page

Mrs Gillick was a mother with five daughters under the age of 16. She sought a declaration that it would be unlawful for a doctor to prescribe contraceptives to girls under 16 without the knowledge or consent of the parent. The court refused to give such a declaration. Lord Fraser in his judgement said that, “I am not disposed to hold now, for the first time, that a girl aged less than 16 lacks the power to give valid consent to contraceptive advice or treatment, merely on account of her age.” Thus, we can see how the ability to give consent is determined in different cases with respect to the facts in the given situation. Consent is usually expressed in law through the Latin phrase “Volenti non fit injuria”. 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. The defence of volenti non fit injuria requires a freely entered and voluntary agreement by the claimant, in full knowledge of the circumstances, to clear the defendant of all legal consequences of their actions. A corollary of this principle is “Scienti non fit injuria” which means that only knowledge of the risk is not enough to claim defence. There must be acceptance to undergo the resultants of the risk undertaken. There has to be consent and mere knowledge is not sufficient. Khimji V. Tanga Mombasa Transport Co. Ltd.: The plaintiffs were the personal representatives of a deceased who met his death while travelling as a passenger in the defendant’s bus. The bus reached a place where road was flooded and it was risky to cross. The driver was reluctant to continue the journey but some of the passengers, including the deceased, insisted that the journey should be continued. The driver eventually yielded and continued with some of the passengers, including the deceased. The bus drowned with all the passengers aboard. It was held that the plaintiff’s action against the defendants could not be maintained because the deceased knew the risk involved and assumed it voluntarily and so the defence of volenti non fit injuria rightly applied. For the defence to be valid it is necessary that the consent was obtained voluntarily by the plaintiff and there was no undue influence, misrepresentation or fraud involved. R v. Williams: The defendant was a singing coach. He told one of his pupils that he was performing an act to open her air passages to improve her singing but he was actually having sexual intercourse 8 | Page

with her. It was held that her consent was vitiated by fraud. This case has been used to illustrate the validity of a consent which has been obtained by unfair means. For a claim of volenti it is necessary that there is an agreement between the parties which may be expressed or implied. An implied agreement may exist where the claimant’s action in the circumstances demonstrates a willingness to accept not only the physical risks but also the legal risks. Also the plaintiff should have complete knowledge of the full nature and extent of risk involved before giving consent. The conventional understanding about the plea of volenti non fit injuria is that it is an affirmative defence to liability arising in the tort of negligence. Murray v Harringay Arena Ltd: The plaintiff, who was six years old at the time, was injured by an errant puck while watching an ice hockey match. He failed in his bid to recover damages from the owner of the rink because he was found to have assumed the risk of injury by attending the match. The plaintiff failed not because he consented to the risk of injury (which was obviously impossible given his age) but because the rink owner was not negligent with respect to the plaintiff’s safety. The defence of consent was successful here. This principle also applies to injuries caused during contact sports. A participant in sporting events is taken to consent to the risk of injury which occurs in the course of the ordinary performance of the sport. But to use this defence it is necessary to show that the rules of the sport were followed and that the players did not cause more harm than is reasonable in a game. Blake v Galloway: The plaintiff and defendant were taking a break from music practice and became involved in “high-spirited and good natured horseplay”. The plaintiff threw and struck the defendant with a piece of bark. The defendant, with no intention to cause harm, threw a piece back and struck the plaintiff in the eye, who suffered significant injury. The judges held that by participating in the game, the plaintiff must be taken to have impliedly consented to the risk of a blow on any part of his body, provided that the offending missile was thrown more or less in accordance with the tacit understanding or conventions of the game. If there are inherent risks in an activity, and someone consents to participating in the activity, they are held to have impliedly consented to being exposed to such risks. 9 | Page

In the medical field the importance of consent is very high. The element of consent is one of the critical issues in medical treatment. The patient has a legal right to autonomy and self-determination enshrined within Article 21 of the Indian Constitution. He can refuse treatment except in an emergency situation where the doctor need not get consent for treatment. The consent obtained should be legally valid. A doctor who treats without valid consent will be liable under the tort and criminal laws. The law presumes the doctor to be in a dominating position, hence the consent should be obtained after providing all the necessary information. The patient may sue the medical practitioner in tort for trespass to person in case something goes amiss. Alternatively, the health professional may be sued for negligence. In certain extreme cases, there is a theoretical possibility of criminal prosecution for assault or battery.

With the help of the following case analysis, the usage of the defence of Volunti non-fit injuria can be understood effortlessly:

10 | P a g e

Master Naveen v. Sh. Sikander

Introduction: The judgement was issued by Dr. T.R.Naval, Presising Officer in Motor Accidents Claims Tribunal on 16th, September, 2004. The petitioner of the case is Naveen, s/o Ram Chander, and as the petitioner is a minor, he is represented through his mother Sarita. The respondent no.1 is Sikander and respondent no. 2 is Raj Kumar. The Prosecution Witness (PW1) no.1 is Shushil Kumar, record clerk in GTB Hospitals, PW2 is HC Omkar Singh and the petitioner is PW3. The facts of the case are as follows.

Facts: On 01/06/2004, at around 12:00 in the night, Naveen, the injured, was going on motorcycle no. DL-05-SN-9647, i.e., the offending vehicle as a pillion rider and the driver was driving the motorcycle in an impulsive and a negligent manner. When they reached at Main Wazirabad Road, opposite B Block, Yamuna Vihar the driver of motorcycle hit against the divider of the road and both the driver and the petitioner suffered severe injuries. They were moved to GTB Hospitals. The petitioner has demanded a compensation Rs.5,00,000/from the respondents who is the driver and owner of the vehicle.

Legal Issue: The legal issue of the case is that, whether the petitioner received injuries due to the rash and negligent driving of offending vehicle No. DL−5SN−9647 being driven by R1, if they have the privilege to use the defence of “volunti non-fit injuria”, and if the petitioner is entitled to any compensation. This case deals with Sections 166/140 of the Motor Vehicle Act, 1988, which states that, “Every application shall be made, at the option of the claimant, either to the Claims Tribunal having jurisdiction over the area in which the accident occurred, or to the Claims Tribunal within the local limits of whose jurisdiction the claimant resides or 11 | P a g e

carries on business or within the local limits of whose jurisdiction the defendant resides, and shall be in such form and contain such particulars as may be prescribed: Provided that where no claim for compensation under section 140 (Liability to pay compensation in certain cases on the principle of no fault) is made in such application, the application shall contain a separate statement to that effect immediately before the signature of the applicant.”

Procedural History: The petitioner files a petition against both the respondents in the court of Motor Accidents Claims Tribunal, which is assessed in the Delhi District Court.

Arguments: In favour of the petitioner: The R1W1 was drunk on the day of accident. He was the vehicle in a hasty and a reckless manner and lost control of the vehicle, thus injuring both the respondent as well as the dfendent. In favour of the respondent: R1W1 defended that no such accident was caused by him and the petitioner has created a false and frivolous story just to get amount out of the compensation. He denied the remaining allegations and prayed for the dismissal of the petition. R2W2 failed to file the written statement and his defence was struck off. R1W1 was not cross examined by counsel for petitioner despite of opportunity afforded to him. Therefore, the testimony of R1W1 cannot be doubted. Also, PW1, after cross-examination admitted that he came to know that Sikander was in drunken condition because there was smell of alcohol coming from his mouth, which may have been due to the medications taken by him.

12 | P a g e

Evidences: The testimony of R1W1 is as follows: On 30.05.2004 after purchasing of articles, as the petitioner and the respondent were coming back, the petitioner who was sitting on the back seat fell down despite of his warnings to him that he should catch hold of him firmly. He also lost balance of motorcycle and fell down and both of them sustained injuries. He was not driving the motorcycle in rash and negligent manner. He had a valid driving licence to drive the motorcycle.

Observations: The petitioner failed to prove that he sustained injuries due to rash and negligent driving of offending vehicle by respondent No. 1. Also, the petitioner volunteered himself for sitting on the motorcycle as pillion rider. In these circumstances the principle of “Volenti Non Fit Injuria” applies in the present case.

Judgements: The Delhi District Court decided that, with the defence of “volenti non-fit injuria”, the respondent is relieved of all the allegations and the petitioner is not entitled to get any compensation.

Critical Comments: On seeing the testimony of the respondent no.1 and prosecution witness no.1, it seems that the child witness may have got some of the facts confused. And he went along with the respondent in spite of being aware of the fact that he was drunk. Moreover, the parents didn’t seem to mind sending their child with their respondent. So, this is exactly a case of “volenti non-fit injuria” where the appellant volunteers himself into the condition, in spite of him being aware of the risks involved.

13 | P a g e

REFERENCES: Tort law by Taylor & Francis, 09-Jan-2009 Tort lawcards – Routledge publications, 17-Jun-2013 Tort law- course notes by Brendan Greeene, 24-Feb-2012 Commonwealth Caribbean Tort Law by Gilbert Kodilinye, Cavendish Publishing, 20-Jun2003 Tort Law: Text and Materials by Mark Lunney, Ken Oliphant, OUP Oxford, 01-Aug-2013 The Common European Law of Torts: Damage and damages, liability for and without personal misconduct, causality, and defences by Christian von Bar, Clarendon Press, 2000 www.lawctopus.com/academike/general-defenses-in-torts www.law.harvard.edu/.../goudkamp.taxonomy-of-tort-law-defences.pdf www.jurawelt.com/sunrise/media/mediafiles/14236/law-of-torts.pdf www.thelawbank.co.uk/general_defences.asp www.oxfordscholarship.com/view/.../acprof-9780198298397-chapter-5

14 | P a g e