Defences Flashcards
When can the defendant plead volenti non fit injuria
Principle of justice and good sense. As said by salmond - no man can enforce a right which he has voluntarily waived
- Consent must be free - compulsion, fraud, mistaken impression
BOWWATER vs ROWLEY REGIS - - Not just knowledge - not scienti non fit injuria- there should be perception, acceptance and appreciation of the risk.
Freedom of choice - full knowledge+ absence of any feeling of constrain
BOW WATER vs ROWLEY REGIS
- Exceeding consent
LAXMI RAJAN vs MALAR HOSPITAL - in case of incapacity, guardian must give consent
What are the 4 limitations to the maxim of volenti non fit injuria
- Unlawful act - duel with sharp swords
- Statutory duty - no validity against an action based on breach of statutory duty
- Rescue cases
- Defendant’s negligence- ex: consented to risk of surgery, but not risk of negligently performing the surgery
No volenti non fit injuria when palintiff injured while rescuing
- When the plaintiff voluntarily takes a risk to rescue someone from the exigency caused by wrongful act caused by the defendent
- Immaterial whether the person endangered is someone who he owes duty to or is a mere stranger
SKYLIGHT case - skylight broke - negligence of contactor- struck husband and went into nervous shock - wife instinctively pulled him away and pulled her leg . Wife entitled to damage
HAYNES vs HARWOOD - unattended horse in the street. Boy threw stone - unruly- police constable on seeing that people are in grave danger - tried to shop injured — entitled to damage
Necessity
- Act causing damage if done under necessitu to prevent a greater evil then not actionable even though harm caused is intentional
- Maxim- salus populi suprema lex - welfare of the people is the supreme law
Illustration- throwing goods overboard to save the sinking ship, pullinv down house to prevent spread of fire
Kirk vs gregory - sis in law - removed Xs jewellery where he laid dead and kept somewhere she thought would be safe. Stolen. Held- no proof that her interference was necessary
- Plaintiff is the wrong doer
- Damage caused due to wrong of plaintiff
- Plaintiffs action must be the determining cause of harm
Illustration
- Plaintiff driving an overloaded truck on a poorly maintained bridge
- Author of a banned book cannot brinng an action against a person who has pirated a version of his book
- Inevitable accident
- No fault of either plaintiff or defendant
- Unforeseen harm
- Due care couldn’t prevent harm
STANLEY vs POWELL - Shooting party. Bullet hit tree and bounced back 🌳🌲🌴🌴
Nitroglycerin case - carrier company box inside plaintiff office. 💥 . No way they could determine what was inside the box
- Act of god- 4 elements
- Direct result of natural calamity
- No human intervention
- Natural force must not be meagre or it must be exorbitant
- Unforeseen harm
Nicholas vs Marsland
- Private defence 4 elements
- There must be an initial attack
- Reciprocal attack
- Immediate response to initial attack
- Proportionate response
TURNER vs JAGMOHAN SINGH – > Vicious stallion attacked a pair of mares . Defendbt tried to control to no avail. Pricked with a spear. Died.
- Act causing slight harm
Nothing which a person of ordinary person would not complain of
Same as sec 95 of IPC
driving along a dusty road, some mud on the pedestrian
But doesn’t apply in case of injury of legal right. A walks across Bs land ( without B’s permission). Bcoz if done again, would establish Bs right of way
- Good defence if he is statutory authority
Based on the rationale that law which recognizes a right can modify it, abolish it or regulate it
- Act authorized by legislature
- Such act supported by lawful authority must have caused harm
VAUGHAN vs TAFF VALDE RAIL co.
Rail on the land of plaintiff. Spark of engine - woods on fire
Held - rail company has taken all precautions. Cannot be held liable because the statutory authority to lay down rails.
- But not a good defence if statutory authority performed the duty negligently
- Servants of rail company negligently left trimmings of grass near rail line, spark caused it to to burn, wind carried the fire to the plaintiffs cottage nearby . Held the rail company liable
