37_Law_of_Torts.pdf

# LAW OF TORTS STUDY MATERIAL ## The Tamil Nadu Dr. Ambedkar Law University (State University Established by Act No. 43 of 1997) M.G.R. Main Road, Perungudi, Chennai - 600 096. By A. Vijayalakshmi Assistant Professor Department of Criminal Law The Tamil Nadu Dr. Ambedkar Law University Chennai...

# LAW OF TORTS STUDY MATERIAL ## The Tamil Nadu Dr. Ambedkar Law University (State University Established by Act No. 43 of 1997) M.G.R. Main Road, Perungudi, Chennai - 600 096. By A. Vijayalakshmi Assistant Professor Department of Criminal Law The Tamil Nadu Dr. Ambedkar Law University Chennai ## Preface The course material for the subject of "Law of Torts" includes the simplified version of the explanations of the subject according to the prescribed syllabus. It has been revised as per the updated decisions of the Supreme Court, various High Courts and English cases. As Law of Torts is a developing subject in India, this course material tries to approach the students jurisprudentially. As the protection of private legal rights of every individual citizens and consumerism is the significant feature of the tort, this has been dealt in advance. Vital areas like, General Defences, Vicarious Liability, Specific torts like, Nuisance, Negligence, Defamation and Strict Liability and Remedies are facilitated with recent judgments. An overview about Compensation under Motor Vehicles Act, also discussed with. I believe that this material would be a best supportive document along with the prescribed text book for the students for the better understanding of the subject. I would like to register my gratitude to Prof. Dr. P. Vanangamudi, Hon'ble Vice-Chancellor, The Tamil Nadu Dr. Ambedkar Law University, and Prof. Dr. S. Narayana Perumal, Director, U.G. Course, School of Excellence in Law, for providing me this opportunity and for their valuable guidance and ideas to shape up material. A. Vijayalakshmi Assistant Professor Department of Criminal Law The Tamil Nadu Dr. Ambedkar Law University Chennai ## Contents | S.No | Chapter| Page | |:---|:---|:---| | 1 | Nature of Tort | 1 | | 2 | General Defences | 9 | | 3 | Capacity | 15 | | 4 | Vicarious Liability | 20 | | 5 | Vicarious Liability of the State | 25 | | 6 | Remoteness of Damages | 29 | | 7 | Trespass to the Person | 31 | | 8 | Defamation | 35 | | 9 | Nuisance | 41 | | 10 | Negligence | 47 | | 11 | Contributory Negligence and Composite Negligence | 52 | | 12 | Abuse of Legal Procedures | 55 | | 13 | Liability for Dangerous Premises | 58 | | 14 | Liability for Animals | 60 | | 15 | Liability for Dangerous Chattels | 63 | | 16 | Trespass to Land | 65 | | 17 | Trespass to Goods, Detinue and Conversion | 67 | | 18 | Rules of Strict and Absolute Liability | 69 | | 19 | Death in Relation to Tort | 72 | | 20 | Remedies | 75 | ## Objectives The law of torts prescribes a standard of human conduct and provides for the mechanism for redressal of civil wrong and injuries mainly through compensations and other remedies like injunctions etc. The object of this paper is to provide understanding to the students about the nature, meaning and fundamental application of law of torts. This particular paper, law of torts has its origin in English common law which underwent various changes. But the position of this law in India remains same without any codification, except in some areas like Consumer protection, Workmen Compensation, Motor Vehicle Act etc. Law of torts mainly depends on the interpretation of judges, so it's also equally important to learn and practice the skill of cases, and apply the principles involved in it. This paper also includes other legislations like Motor Vehicles Act, CrPC, Constitution of India, as some of the provisions in these legislation includes principles and procedures for claiming compensation. ## Books for References 1. Dr. R.K. Bangia - Law of Torts including Compensation under Motor Vehicle Act and Consumer Protection Act 2. B.M. Gandhi - Law of Torts with Law of Statutory Compensation and Consumer Protection 3. Avatar Singh & Harpreet Kaur - Introduction to Law of Torts and Consumer Protection 4. Ratanlal and Dhirajlal - The Law of Torts 5. A. Lakshmikanth & M. Sridhar - Ramaswamy Iyer's The Law of Torts ## Websites to refer article, reports and cases 1. www.lawcommissionofindia.nic.in/ - to refer reports passed by the Law Commission of India relating to amendments in law of torts and compensatory jurisprudence 2. www.indiakanoon.com, www.manuparta.com - to refer cases 3. www.heinonline.org, www.jstor.org - to refer article related to torts both nationally and internationally # Chapter-I ## THE NATURE OF TORT **Synopsis:** a. Nature and Definition, b. Definition of Tort, c. Difference Tort and Crime, Tort and Breach of Contract, Tort and Quasi Contract, d. Essentials of tort Damnum sine injuria, Injuria sine damno, e. Mental element and tortious liability, f. Malice in Law and Malice in fact **Introduction:** The word "Tort" has been derived from the Latin term "tortum" which means "to twist or crooked" conduct and is equivalent to the English term 'Wrong'. This branch of law includes various torts or wrongful acts whereby it violates some legal rights vested in another. The law imposes a duty to respect the legal rights vested in the members of the society and the person making a breach of that duty is said to have done the wrongful act. For example, violation of a duty to injure the good name and reputation which results in defamation, interfering in to the property of others or possession of land again results in tort of trespass. As of now, there is no scientific definition for the elements of tort. It is because different wrong included under this head have diverse ingredients which have its own elements. As a matter of fact, it is an ever-growing branch of law and has constantly developed and the area covered in its ambit is continuously increasing. **Definition.** There are various definitions, which indicates the nature of this branch of law, which includes, a. "Tort means a civil wrong which is not exclusively a breach of contract or breach of trust" - U/s 2(m) of the Limitation Act, 1963. b. It is a civil wrong for which remedy is a common law action for unliquidated damages and which is not exclusively the breach of contract or the breach of a trust merely equitable obligation - according to Salmond. c. Tortious liability arises from the breach of a duty primarily fixed by the law. This duty is towards persons generally and its breach is redressible by an action for unliquidated damages --- according to Winfield. d. It is an infringement of a right in rem of a private individual giving a right of compensation at the suit of the injured party - according to Fraser. From the above definition it is clear that, though it may vary from person to person, the basic idea which is indicated by these definition is, **TORT** **CIVIL WRONG** **NOT ALL THE CIVIL WRONG IS A TORT** **BREACH OF CONTRACT OR FRUST** As stated earlier, no such definition of tort has been possible which could explain this wrong by mentioning various elements, the presence of which could be considered to be a tort. We may define tort as a civil wrong which is redressible by an action for unliquidated damages and which is other than a mere breach of contract or breach of trust, which could be technically classified as follows, 1. **Tort is a civil wrong:** Tort belongs to the category of civil wrongs. The basic nature of civil wrong is different from a criminal wrong. In case of a civil wrong, the victim will institute a suit for damage against the wrongdoer. The plaintiff (victim) is compensated by the defendant (wrongdoer) for the injury caused. But in the case of criminal wrong, on the other hand, the criminal case has been initiated by the State against the criminal and more over the victim in the criminal case is not compensated. Criminal Justice is administered by punishing the wrongdoer. There are instances where, a similar act will fall under both the laws (tort and crime), in which the remedies are available concurrently. There would be a civil action by which the plaintiff could be compensated and under criminal action, the wrong doer would be punished. 2. **Tort is other than a mere breach of contract or trust** Though tort is a civil wrong, it is not exhaustively any other kind of civil wrong. If the wrong is mere breach trust or contract, then it is not a tort. First we have to see whether the wrong is criminal or civil, if it is civil wrong, further we have to decide whether that is recognized by any other category of civil wrong like breach of contract or trust. If it is found that the wrong is neither mere breach of contract or trust, then the wrong is tort. There are circumstances where a single transaction of wrong give rise to two or more civil wrong, in which one of the wrong may be tort. For eg. A, gives his horse to B for custody for two weeks, and if B allows the horse to die because of starvation, here B is coming under commission of two wrongs as breach of contract of bailment and negligence under tort. In this situation, A can avail remedy under both the laws (Contract and Tort), as in both the laws the remedy is compensation. But A cannot claim remedy twice. 3. **Tort is redressal by an action for unliquidated damages** As damage (compensation) is the major remedy for tort, the wrong doer has to compensate (money compensation) the injured party after the commission of the wrong. As the wrong committed by the defendant cannot be restored back, the only thing which can be done in such a case is to see what the money equivalent to the harm committed is. In tort money compensation is not the only remedy available, sometimes other remedies are also available like "injunction", for eg, in case of nuisance, injured party would seek for immediate remedy so as to prevent such nuisance by way of restraining the wrong doer rather, than getting money compensation. Generally damage is the only remedy in law of tort and that is what distinguishs it from crime. Damages in the case of tort are unliquidated. It is the fact which enables us to distinguish it from other civil wrong like breach of trust or contract, where the damages may be liquidated. Liquidated damages means where the damages are previously determined or agreed by the parties. But at the same time, if the compensation is left to the discretion of the court, the damages are said to be unliquidated damages. Generally the parties are not known to each other until the tort is committed and moreover, it is difficult to visualize beforehand the quantum of loss in the case of a tort and, therefore, the damages to be paid are lest to be determined at the discretion of the court. Such damages, therefore, are unliquidated. The nature of a tort can be understood by distinguishing: 1. **Tort and Crime distinguished -** Wrongs which are less serious in nature are considered to be private wrongs and have been labelled as civil wrong, and wrongs which are more serious have been considered as public wrong and are known as Crime. There are wrongs which could fit in both crime and tort, like assault, defamation, negligence, conspiracy, and nuisance. If the victim wants to sue the wrongdoer under civil liability, he has to approach the rules of torts and if he decided to initiate criminal proceedings against the offender, criminal law will apply. The rule applicable in tort is different from crime. For eg in case of defamation, "truth" is the basic element in both the case, but the interpretation of it differ from crime and tort. As tort is a private wrong, the injured party himself files a suit against him and claim compensation from him. But in case of crime being a public wrong, though it is committed against the individual, it is considered to be committed against the State. So the State initiates the proceedings against the culprit. In case of tort, the injured party may entered into compromise with the wrong doer and withdraw the case after settlement. But in case of crime, it is impossible in all cases to enter into compromise outside the court and with draw the complaint, unless the Act provide for compromise (Compoundable) Generally in case of tort, the remedy is monetary compensation and the idea behind awarding compensation to the injured party is to make good the loss suffered by him. The punishment under criminal law protects the society by preventing the offender from committing further offences and deterring him and other potential offenders from committing wrong. Moreover, imprisonment and arrest under criminal law and under civil law are different. Under criminal law, imprisonment and arrest are meant as penalty and under civil law, it is to pressurize the defendant to perform certain duty. | Crime | Tort | |:---|:---| | Public wrong | Private wrong. | | Elements may vary from crime to crime | Elements are determined. | | The proceedings against the accused brought by the State | Injured party himself files a suit against the wrongdoer. | | No place for settlement, except in some cases | Compromise can be done at any stage of the case between the parties | | Remedy is none other than punishment, except U/s 357 of Cr PC, paid out of fine | Remedy is monetary compensation | | Imprisonment and arrest as penalty | Imprisonment and arrest as pressure to perform the duty | 2. **Tort and Breach of Contract distinguished** A breach of contract results from the breach of a duty undertaken by the parties themselves. The violation of the agreement which is made by the parties with their free consent is known as breach of contract. In case of tort, the duties which are said to be breached is not undertaken by the parties, but which are imposed by law. For eg. I have a duty not to cause any nuisance or defame others, not because I have voluntarily undertaken anyone of these duties on me, but the law imposes such a duty on every members of the State. The duty imposed by law under law of tort is not against any individual but against the society at large. However, the injured party alone is entitled to sue against the wrongdoer. In case of Contract, the duty is based on Privity of Contract, wherein each party owes a duty only to the other contracting party, and not to those who are strangers to the agreement. A (Entered into contract with) B, A is answerable only to B, and B is answerable only to A, and not to any of the strangers. For this the best example case is Donoghue v Stevenson, which is popularly known as Ginger beer case, in which the House of Lords has interpreted the concept of Privity of contract and law of tort. In this case, A went to a restaurant with his friend and bought one bottle of Ginger beer manufactured by the defendant. The women friend consumed half of the contents, and when the remaining part was poured in to a glass and they found the decomposed body of a snail. As the beer was served in opaque bottle, A was not able to see the contents in the bottle The woman friend brought a suit against the manufacturer of the beer for negligence and serious illness as consequence. The manufacturer contented that, they had no contract with the consumer but only with the restaurant who sold the drinks So they pleaded that, only the shop keeper is liable and not them. The House of Lords rightly observed that, that the manufacturer owes a duty to all those who intend to consume his product. Thus, in law of tort, the liability is based on duty imposed by law and not on the basis of contract. As the main remedy under both the laws is damages, in breach of contract, the damage may be liquidated and determined by the parties at the time of entering into contract. But in case of tort, the damages are unliquidated, and it is at the liberty of the court to award any amount of damage. | TORT | BRFACH OF CONR FACT | |:---|:---| | Breach of duty imposed by law on members of the society | Beach of duty undertaken by the parties themselves through agreement | | The duty is not based on Privity of Contract | The duty is based on Privity of Contract | | The damage is unliquidated | The damage is liquidated | **Privity of Contract and Tortious liability** If there is a contract between 'A' and 'B', and as a result of which, if 'C' sustained loss because of breach of contract by 'A' and 'B', the question now is whether 'C' who is a stranger, can sue 'A' or 'B'? In law of Contract, C can sue A or B or both under Privity of Contract but under law of tort, we don't need such doctrine to establish the liability of the wrongdoer. **Is it Law of Tort of Law of Torts?** Salmond posed this question in this regard, 'law of Torts consists of fundamental general principles that it is wrongful to cause harm to other persons in the absence of some specific ground of justification or excuse or does it consist of a number of specific rules prohibiting certain kind of harmful activity, and leaving all the residues outside the sphere of legal responsibility?' In other words, the question is (1) is it law of tort, so that every wrongful act, for which there is no justification or excuse to be treated as a tort, or (2) is it the law of torts, consisting only of a number of specific wrongs outside which the liability under this branch of law cannot arise. Winfield preferred the 1" of these alternative and argues it is law of tort and not law of toits. Salmond opted the second alternative which argued that it is law of torts, under which the liability arises when the wrong is covered by anyone or the other nominate torts. There is no general principle of liability and if the plaintiff can place his wrong in any of the pigeon-holes, each containing a labelled tort, he will succeed, and this theory is called "Pigeon Hole" theory. Ashby v. White case clearly favors the Winfield's theory, by recognizing the doctrine Ubi jus ibi remedium which means where there is right, there is remedy. The Judges opined that "if man will multiply injuries, action must be multiplied too for every man who is injured ought to have recompense. ## ESSENTIALS OF TORTS To constitute an act as tort, it is essential that the following two conditions are satisfied, 1. There must be some act or omission on the part of defendant and, 2. The act or omission should result in legal damages ## ACT OR OMISSION To make a person liable for a tort, he must have done some act which he is not supposed to do or omitted to do some which he is supposed to do, either positive or negative. For eg. defamation, trespass or false imprisonment comes under "ACT" and negligence comes under "OMISSION". In Glasgow Copr v. Taylor case, the corporation which maintains a public park, fails to put proper fence to keep the children away from a poisonous tree and a child plucks and eats the fruits of the poisonous tree and dies. The corporation would be liable for such omission. Similarly in "Municipal Corporation of Delhi v Subhagwanti", it was clearly interpreted that due to the negligence of Delhi Municipal Corporation, the clock tower which was situated in the heart of the city, which was not maintained properly fell down and killed a number of people. It may be noted that the wrongful act or omission must be one recognized by law and not based on moral or societal values. ## LEGAL DAMAGES (injuria sine damno & damnum sine injuria) In order to be successful in an action for tort, the plaintiff has to prove that there has been a legal damage caused to him. Unless there has been violation of a legal right vested in the plaintiff, there can be no action. This is expressed by the maxim "Injuria sine damno", injuria means infringement of a right conferred by law on the plaintiff and damno means substantial harm, loss or damage in respect of money, comfort, health etc. So when there has been violation of legal rights(injuria) but without causing any harm (damnum/ damno), the plaintiff can still go to the court of law because no violation of a legal rights should go unredressed. Reciprocally, when there is any harm without violation of legal rights it is not actionable prese. Thus the test to determine whether the defendant should or should not be liable is not whether the plaintiff has suffered any loss or not, but the real test is whether any lawful rights vested in the plaintiff has been violated or not. **Injuria sine damno (Violation of Legal Rights without causing harm)** Actionable per se- actionable without Actionable only with proof Firstly those are torts which are actionable per se, actionable without the proof of the proof of any damages or loss, eg trespass. Secondly, the torts which are actionable only on proof of some damages caused. The two important cases which this could be under stood is, (1) Ashby v. White & (2) Bhim Singh v. State of J&K. In the first case, the plaintiff who was a eligible candidate to vote but was not allowed to cast his vote by the returning officer, the defendant. No loss was caused because of refusal by the defendant, as the candidate whom he intended to vote won the election. But the House of Lords, has decided that defendant was liable when the plaintiff brought a suit against the defendant, as, if the plaintiff has a right, he must be permitted to enjoy it without any prevention and if so, the remedy should be provided. In the second case, the plaintiff who was an MLA of J&K Assembly was wrongfully detained by the police, while he was going to attend the Assembly session. He was not produced before the JM within the prescribed time. Because of this he was deprived of his Constitutional rights to attend the assembly session and also there was violation of fundamental rights of personal liberty which is guaranteed under Art 21 of the Constitution of India. He was awarded with the compensation of Rs 50, 000/- along with his release from jail. From these two cases, it is clear that, loss suffered by the plaintiff is not relevant for claiming compensation from the defendant, but only the violation of legal rights. **Damnum sine injuria (Causing harm without violating harm)** It means causing harm without violating legal rights of others. Causing of damages however substantial to another person is not actionable in law unless there is also violation of legal rights of the plaintiff. In Grant v Australian Kniting Mills, Lord Wright has rightly pointed out that, "The mere fact that a man is injured by another's act gives in itself no cause of action, if the act is deliberate, the party injured will have no claim in law even though the injury is intentional, so long as the other party is exercising a legal rights". The land mark case for this maxım 1s Glouster Grammer School case, the defendant, who was a school master, started a rival school opposite to plaintiffs school. Because of this, the plaintiff had to reduce his school fees and due to that he suffered loss. When he filed a suut to claim compensation from the defendant, the court held that, without violating the legal rights of a person, even there is loss, it is not maintainable. The other important cases under this head are Mogul Steamship co v McGregor Gow & Co, Action v. Blundell, Chesmore v. Richards, P Sethuramayya v. Mahalakshmamma, Dickson v Reuter's Telegram Co. In Town Area Committee v Prabhu Dayal, the plaintiff constructed 16 shops on the on the old foundations of the building. The said construction was made without giving an notice to the municipality and without obtaining proper sanction. The defendants, the municipality authorities demolished the building for the violation of the norms. The plaintiff argued that the action of the defendant was rot legal and it was with mala fide intention. It was held that the defendants was not held liable as no "injuria" could be proved because the plaintiff constructs a building illegally and such demolition would not amount to causing "Injuria" to the plaintiff. And the similar was held in Pagadala Narasimham v. Commissioner and Special Officer, Nellore Municipality" ## Mental ELEMENTS IN TORTIOUS LIABILITY Mental element is an essential element in most of the forms of crimes. Generally in criminal law mens rea or guilty mind is required to create the liability. So, no one is punishable unless it is proved that he s intended to commit some act. But it is not easy to make any such generalization about liability in tort. **Fault when relevant (State of mind)** In many of the branches of torts like assault, battery, false imprisonment, deceit, malicious prosecution, the state of mind of a person is relevant to ascertain the liability. Sometimes we may compare the conduct of the defendant with that of the defendant with that of a reasonable man and make hım lıable only if his conduct falls below the standard except of a reasonable man. When the circumstance demand care and a person fail to perform the duty to take care, he is liable for the tort of negligence. Mental element may become relevant in another way also. If the defendant's conduct is innocent in so far as the act done was due to an inevitable accident, he may be excused from liability. **Liability without Fault** **Malice in Fact-evil motive** There are certain areas where the mental element is quite irrelevant and the liability arises even without any wrongful intention on the part of the defendant. In such cases, innocence of the defendant or an honest mistake on his part is no defence, for eg. Tort of Conversion (Consolidated Co v Curtis), defamation (Cassidy v. Daily Mirror Newspaper Ltd) and vicarious liability (Rylands v Fletcher). **Malice** Malice in Law-willful act done without excuse The term 'malice' has been used in two different senses (1) in its legal sense, it means a willful act done without just cause or excuse and known as malice in law, and (2) in its narrow sense it means an evil motive, and the same is known as malice in fact. **Malice in Law** In the technical legal sense, malice in law does not connate an act done with an improper or evil motive but simply signifies, " a wrongful act done intentionally without just cause or excuse'. Malice, in its legal sense, thus means such as may be assumed from the doing of a wrongful act intentionally but without just cause or excuse or for want of reasonable or proper cause. **Malice in Fact** In its popular sense or as 'malice in fact' or 'actual malice', it means an evil motive for wrongful act. When the defendant does a wrongful act with a feeling of spite or ill-will, the act is said to be done 'maliciously'. Motive is not relevant to determine a person's liability in the law of torts. A wrongful act does not become lawful merely because the motive is good Similarly, a lawful act does not become unlawful because of a bad motive. **Exception to the Rule:** In the following exceptional cases, the malice or evil motive becomes relevant in determınıng liability under the law of torts, (a) When the act is otherwise unlawful and the wrongful intention can be gathered from the circumstances of the case. (b) In tort of deceit, conspiracy, malicious prosecution one of the essentials to be proved by the plaintiff is malice of the defendant. (c) In certain cases of defamation, when qualified privileged or fair comment is pleaded as a defence, motive becomes relevant. (d) Causing of personal discomfort by an unlawful motive may turn an otherwise lawful act into nuisance. (e) Malice or evil motive may result in aggravation of damages # Chapter – II ## GENERAL DEFENCES **SYNOPSIS:** 1. Volunti non fit injuria, 2. Plaintiff the wrong doer, 3. Inevitable accident, 4. Act of God (vis major), 5. Private Defence, 6. Mistake, 7. Necessity, 8. Statutory Authority **Introduction:** When the plaintiff brings an action against the defendant for a particular tort, providing the existence of all the essentials of that tort, the defendant would be liable for the same. The defendant may however, even in such a case, avoid his liability by taking the plea of some defence. There are some specific defences which are peculiar to particular offences. There are some general defences which may be taken against action for number of wrongs. The general defences discussed in this chapter are as follows,  ## I Volunti non fit injuria **Essentials** Consent (Free without threat, fraud or compulsion) **Limitations** In rescue cases and Unıan Contract Terms Act, 1977(England) When a person consents to the infliction of some harm upon himself, he has no remedy for that tort. In such a case, the plaintiff who voluntarily agrees to suffer some harm, he is not allowed to complain for that and his consent serves as good defence. Consent to suffer may be express or implied. For eg. if you invite any one to your house and you could not him for trespass. Many a time, the consent may be implied or inferred from the conduct of the parties, eg players of any game like football and cricket is deemed to be agreeing to any hurt which may be likely in the normal course of the game, a person going on the high way is presumed to consent to the risk of pure accidents. In the same way the spectators of any race or matches cannot succeed in claiming damages if they hit by any ball or car or any objects. For the defence of consent to be available, the act causing harm must not go beyond the limit of what has been consented. Some important cases under this defence is as follows, (a) Hall v Brooklands Auto Racing Club and (b) Padmavati v Dugganaika. In the 1st case, the plaintiff was a spectator at a motor car race being held in the defendants race track. During the race, there was a collision between two cars, one of which was thrown among the spectators, thereby injured the plaintiff. It was held that, the plaintiff impliedly took the risk of such injury, the danger being inherent in the sport which any spectator could foresee. In the 2nd case, while the driver was taking the jeep to fill petrol, two strangers took lift in the jeep. Suddenly one of the bolts connecting the front wheel to the axle gave way toppling the jeep. The two strangers were thrown out and sustained injury and one of them died. It was held that neither the driver nor his master is could be liable because it was a case of sheer accident and the strangers had voluntarily got into the jeep. The other important cases are, Woolridge v Sumner, Thomas v Quartermaine, Illot v. Wilkes. **The consent must be free -** For the defence to be available, it is necessary to show that the plaintiff's consent to the act done by the defendant was free. If the consent of the plaintiff has been obtained by fraud or under compulsion or under some mistaken impression, such consent does not serve as a good defence. Moreover, the act done by the defendant must be the same for which the consent is given. In Lakshmi Rajan v. Malar Hospital Ltd, case, the plaintiff who was a married women aged 40 years, noticed development of a painful lump in her breast. During surgery her uterus was removed without any justification. The defendant, the hospital authorities contented that, based on her consent only the surgery was conducted, so, they were not liable. But, the consent was given only to cure the pain in breast and not to remove her uterus which has no effect with the pain. So her consent cannot be taken into appropriate one. When a person is incapable of giving his consent because of hus insanity or minority, consent of such person's parent is sufficient. **Consent obtained by fraud and compulsion'** Consent obtained by fraud is not real and that does not serve as a good defence. This was clearly explained in the maxım, ex trupi causa non oritur action which means for an immoral cause, no action arises. Consent given under circumstances when the person does not have freedom of choice is not the proper consent. A person may be compelled by some situation to knowingly undertake some risky work which, if he has a free choice, he would not have undertaken. This mainly arises in master-servant relationship. Thus there is no voluntı non fit injuria, when a servant compelled to do some work inspite of his protests. **Mere knowledge does not imply assent** To avail the defence, two points has to be proved, (1) The plaintiff knew that the risk 1s there, (2) He, knowing the same, agreed to suffer the harm. In Bowater v Rowley Regis Corporation case, the plaintiff a car driver was asked by the defendant's foreman to drive a horse which to the knowledge of both was liable to be bolt. The plaintiff protested but ultimately took out the horse in obedience to the order. The horse bolted and the plaintiff was injured thereby. In Smith v Baker case, the plaintiff was a workman in the defendant's quarry, for the purpose of cutting a rock By the help of crane, stones were conveyed from one side to another, and every time the crane used to passes over the head of the plaintiff. While he was busy in his work, a stone fell from the crane and injured him. The employers were negligent in not warning him at the moment of a recurring danger, although the plaintiff had generally aware of the risk. The plaintiff filed a suit against the defendant for compensation, the court order compensation for him by imposing the liability on the defendant. The other most important case, which was clearly interpreted by the court, was Dann v. Hamilton. A lady, knowing that the driver of a car was drunk chose to travel in it instead of an omni bus Due to drivers negligent driving, an accident was caused resulting in the death of the driver himself and injuries to the lady passenger. In an action by the lady passenger against the representatives of the driver, the defence of volunti non fit injuria, was pleaded, but the same was rejected and the lady was awarded with compensation. As because the level of intoxication of the driver was no to such an extent of causing accident, the defence was rejected. The other important cases are Imperial Chemical Industries v Shatwell. **Negligence of the defendant:** For the defence to be available, it is further necessary that the act done must be the same to which it is onsented. When the plaintiff consents to some risk, the presumption is that the defendant will not be negligence. If I submit to a surgical operation, I have no right of action if the operation is unsuccessful. But if the operation sunsuccessful because of the surgeon's negligence, I can bring an action against him for that. **Limitations on the scope of the doctrine** The scope of application of the doctrine of volunti non fit injuria has been curtailed, (1) In rescue cases, (2) By the Unfair Contract Terms Act, 1977 (England) **Rescue cases:** 'Rescue cases' form an exception to the application of the doctrine of volunti non fit injuria. When the plaıntıff voluntarily encounters a risk to rescue somebody from an imminent danger created by the wrongful act of the defendant, he cannot be met with the defence The landmark case based on this exception is, Haynes v. Harwood, in this case, the defendant's servant left a two-horse van unattended in a street. A boy threw a stone on the horses and they bolted, causing grave danger to women and children on the road. A police man who was on the duty ınsıde a nearby police station, on seeing the same, managed to stop the horses, but in doing so, he himself suffered serious personal injuries. It being a 'rescue cases' the defence was not accepted and the defendant were held liable In Baker v T.E Hopkins & Sons, due to the employer's negligence, as well was filled with poisonous fumes of petrol driven pump and the two of his workmen were overcome by fumes. Dr Baker was called but he was told not to enter the well in view of the risk involved. Inspite of that, Dr Baker preferred to go in the well with a view to making an attempt to help the workmen already inside the well. He tied himself with a rope around himself and went inside, while two women held the rope at the rope at the top. The doctor himself was overcome by the fumes. He was pulled from the well and taken to the hospital. He however, died on way to the hospital. The two workmen inside the well had already died. Doctor's widow sued the workmen's employers to claim compensation for her husband's death, the defendants pleaded the defence. It was held that the act of the rescuer was the natural and probable consequences of the defendant's wrongful act which the later could have foreseen, and therefore the defendant were liable. While avaılıng this defence, some question arises. Does the rule in Haynes v Harwood would apply in cases of rescue of property? The question was answered in Hyett v Great Western Railway Co, in this case, the plaintiff was injured in an attempt to save defendant's railway cars from fire which had occurred due to the negligence of the defendant. The plaintiff's conduct was considered to be reasonable and on the basis of the doctrine of Haynes case would applied in this case also. The question is about the act of intervention of the rescuer novus actus intervenines which break the chain of causation so that the initial negligence of the defendant is considered to be a remote cause of the rescuer's injury. From the Hynes case it was held that the act of the rescuer was not such an act which could make the defendant's negligence remote cause of the damage. **Volunti non fit injuria and Contributory negligence—distinguish** 1. Volunti non fit injuria is a complete defence. In case of Contributory negligence, is based