Module IV - JUSTIFICATION FOR TORTS

 Acts of State
 Judicial acts
 Executive acts
 Quasi Judicial Acts
 Parental and Quasi Parental Authority
 Authorities of necessity.
 Inevitable Accident
 Exercise of Common Right
 Leave and License: Volenti Non Fit Injuria
 Plaintiff- A wrongdoer
 Act of God: Vis Major
 Private Defense
 Mistake
 Statutory Authority
 Act Causing Slight Harm

AN ACT OR AN OMISSION WHICH IS PRIMA FACIE TORTIOUS…. IS NOT

ACTIONABLE IF IT IS DONE UNDER THE LAWFUL EXCUSE.

I. DEFINITION OF ACT OF STATE

• 1. Act of State
• Buron Vs Denman ( 1848)
• Metropolitian Asylum District Council Vs Hill ( 1881)
• Secretary Of State for India Vs Kamachee Boye Saheb (1857)

• Act of State against a subject

• The principle that there can be no act of State against a subject was recognised by the Privy
Council in Forester v. Secretary of State. ((1872) 1 IA (Supp) (PC) 1.)

• ANNEXATION OF PRINCLY KINGDOME

• H.H. Maharajadhiraja Madhav Rao Jivaji Rao Scindia v. Union of India,
AIR 1971 SC 530 [LNIND 1970 SC 481], (p.
552) : (1971) 1 SCJ 295 : (1971) 2 SCA (HIDAYATULLAH CJ) 257

• As held by the Supreme Court “an act of State is not available against a citizen” it is “a
sovereign act which is neither grounded on law nor does it pretend to be so” it is “a
catastrophic change constituting a new departure” “in civil commotion, or even in war or
peace, the State cannot act catastrophically outside the ordinary law and there is legal
remedy for its wrongful acts against its own subjects or even a friendly alien within the
State”.

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 • Pema Chibbar v. Union of India
AIR 1966 SC 442 [LNIND 1965 SC 183]: (1966) 1 SCWR 234 : (1966) 1 SCA 918

The application of the principle of act of State when a new territory is acquired by conquest.
The Portuguese territories of Goa, Daman and Diu were annexed by the Government of India by
conquest on 20th December, 1961.
The President of India, on 5th March, 1962, passed an Ordinance by which the laws in force in
the territories of Goa, Daman and Diu were continued until amended or repealed by a competent
legislature.
The Ordinance was later replaced by an Act which was given retrospective effect from 5th March,
1962.

It was further held that…….

• Pema Chibbar v. Union of India
AIR 1966 SC 442 [LNIND 1965 SC 183]: (1966) 1 SCWR 234 : (1966) 1 SCA 918.

It was further held that mere continuance of the old laws did not amount to recognition by the
Government of India of the rights acquired under these laws before the conquest and annexation
of the Portuguese territory.
• Article 372 of the Constitution
• Article 372 of the Constitution continues only such orders of the Rulers of the erstwhile
Indian States which are legislative in nature

• Article 372 in The Constitution Of India 1949

Article . 372. Continuance in force of existing laws and their adaptation
• (1) Notwithstanding the repeal by this Constitution of the enactments referred to in Article
395 but subject to the other provisions of this Constitution, all the laws in force in the territory
of India immediately before the commencement of this Constitution shall continue in force therein until
altered or repealed or amended by a competent Legislature or other competent authority

• Article 372 in The Constitution Of India 1949

• (2) For the purpose of bringing the provisions of any law in force in the territory of India
into accord with the provisions of this Constitution, the President may by order make such
adaptations and modifications of such law, whether by way of repeal or amendment, as may be
necessary or expedient, and provide that the law shall, as from such date as may be
specified in the order, have effect subject to the adaptations and modifications so made,
and any such adaptation or modification shall not be questioned in any court of law

DR. SHAH FAESAL AND ORS. VERSUS UNION OF INDIA

AND ANR. …And
WRIT PETITION (CIVIL) NO. 1013 OF 2019
WRIT PETITION (CIVIL) NO. 722 OF 2014

• The Court held that the

Constitution Orders were validly passed in exercise of the
power under Article 370 of the Constitution, which continued

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 beyond the date of dissolution of the Constituent Assembly. In
this regard, this Court held as follows:
• 5. We are not impressed by either of these two arguments advanced by Mr
Ramamurthy.
• So far as the historical background is concerned, the Attorney
General appearing on behalf of the Government also relied on it to urge that the
provisions of Article 370 should be held to be continuing in force, because the situation
that existed when this article was 34 incorporated in the Constitution had not
materially altered, and the purpose of introducing this article was to empower the
President to exercise his discretion in applying the Indian Constitution while that
situation remained unchanged.
• There is considerable force in this submission. The legislative history of this article
cannot, in these circumstances, be of any assistance for holding that this article
became ineffective after the Constituent Assembly of the State had framed the
Constitution for the State.
• 6. The second submission based on clause (2) of Article 370 does not find support even
from the language of that clause which only refers to the concurrence given by the
Government of the State before the Constituent Assembly was convened, and
makes no mention at all of the completion of
the work of the Constituent Assembly or its dissolution
• 7. There are, however, much stronger reasons for holding that the provisions of
this article continued in force and remained effective even after the
Constituent Assembly of the State had passed the Constitution of the State. The
most important provision in this connection is that contained in clause (3) of the article
which lays down that this article shall cease
to be operative or shall be operative only
with such exceptions and modifications and from such date as the President may specify
by public notification, provided that the recommendation of the Constituent 35
Assembly of the State referred to in clause (2) shall be necessary before the President
issues such a notification.

• Facts
• On August 5, 2019, the Centre decided to strip the erstwhile State of Jammu and Kashmir
of special status and bifurcate it into two Union Territories. By abrogating Article 370, the
Central Government revoked the special status of Jammu and Kashmir. Several petitions
challenging the abrogation of the provisions of Article 370 and the Jammu and Kashmir
Reorganisation Act, 2019, were referred to a Constitution Bench in 2019.

• Issue
• A Constitution Bench will resume hearing today the batch of petitions challenging the
dilution of Article370 of the Constitution which took away the special status of Jammu
and Kashmir.
• In yesterday's proceedings, Sr Adv Kapil Sibal argued that Article 370 could not be
abrogated as J&K Constituent Assembly never recommended it before its dissolution. The
bench also discussed the 'temporary' nature of the provision.
• A bench comprising Chief Justice of India DY Chandrachud, Justices SK Kaul, Sanjiv
Khanna, BR Gavai and Surya Kant is hearing the matter.

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 • Statement
• The Supreme Court on August 22 termed as “unacceptable” the submission that Article
370 of the Constitution ceased to operate once the term of the constituent assembly of
Jammu and Kashmir ended in 1957 after drafting the State’s Constitution.
• The remark by a five-judge Bench headed by Chief Justice D.Y. Chandrachud came when
senior advocate Dinesh Dwivedi, appearing for intervenor Prem Shankar Jha, argued that
nothing of Article 370, which accorded special status to the erstwhile State, survived once
the Constitution of J&K was enacted on January 26, 1957, and the term of the State’s
constituent Assembly ended.

• 2. Judicial Act
• English Law :
• The Courts and Legal Service Act 1990
• INDIAN Law
• S. 77 and 78 IPC
• Judicial Officers Protecting Act 1850
• Judges Protection Act
• Act of Judge when acting judicially

• S. 77. Act of Judge when acting judicially.--Nothing is an offence which is done by a Judge
when acting judicially in the exercise of any power which is, or which in good faith he
believes to be, given to him by law.

• 78. Act done pursuant to the judgment or order of Court.

• 78. Act done pursuant to the judgment or order of Court.--Nothing which is done in
pursuance of, or which is warranted by the judgment or order of, a Court of Justice, if
done whilst such judgment or order remains in force, is an offence, notwithstanding the
Court may have had no jurisdiction to pass such judgment or order, provided the person
doing the act in good faith believes that the Court had such jurisdiction.

• 79. Act done by a person justified, or by mistake of fact believing himself, justified, by law
S. 79. Act done by a person justified, or by mistake of fact believing himself, justified, by law.--
Nothing is an offence which is done by any person who is justified by law, or who by reason of a
mistake of fact and not by reason of a mistake of law in good faith, believes himself to be justified
by law, in doing it.

• Indian laws
• Article 300 Constitution of India:
Suits and proceedings
• Article 300 in The Constitution Of India 1949
• 300. Suits and proceedings(1) The Governor of India may sue or be sued by the name of
the Union and the Government of a State may sue or be sued by the name of the State
and may, subject to any provisions which may be made by Act of Parliament or of the
Legislature of such State enacted by virtue of powers conferred by this Constitution, sue
or be sued in relation to their respective affairs in the like cases as the Dominion of India

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 and the corresponding Provinces or the corresponding Indian States might have sued or
been sued if this Constitution had not been enacted
• (2) If at the commencement of this Constitution(a) any legal proceedings are pending to
which the Dominion of India is a party, the Union of India shall be deemed to be
substituted for the Dominion in those proceedings; and
• (b) any legal proceedings are pending to which a Province or an Indian State is a party, the
corresponding State shall be deemed to be substituted for the Province or the Indian State
in those proceedings

• S.84. When foreign States may sue

A foreign State may sue in any competent Court :
Provided that the object of the suit is to enforce a private right vested in the Ruler of such State
or in any officer of such State in his public capacity.

• s. 85. Persons specially appointed by Government to prosecute or defend on behalf

of foreign Rulers
• 85. Persons specially appointed by Government to prosecute or defend on behalf of
foreign Rulers
• (1) The Central Government may, at the request of the Ruler of a foreign State or at the
request of any person competent in the opinion of the Central Government to act on
behalf of such Ruler, by order, appoint any persons to prosecute or defend any suit on
behalf of such Ruler, and any persons so appointed shall be deemed to be the recognized
agents by whom appearances, acts and applications under this Code may be made or done
on behalf of such Ruler.
• (2) An appointment under this section may be made for the purpose of a specified suit or
of several specified suits, or for the purpose of all such suits as it may from time to time
be necessary to prosecute or defend on behalf of such Ruler.
• (3) A person appointed under this section may authorise or appoint any other persons to
make appearances and applications and do acts in any such suit or suits as if he were
himself a party thereto

• s. 86. Suits against foreign Rulers, Ambassadors and Envoys

• (I) No. foreign State may be sued in any Court otherwise competent to try the suit
except with the consent of the Central Government certified in writing by a
Secretary to that Government :
• Provided that a person may, as a tenant of immovable property, sue without such consent
as aforesaid 6 [a foreign State] from whom he holds or claims to hold the property.
• (2) Such consent may be given with respect to a specified suit or to several specified suits
or with respect to all suits of any specified class or classes, and may specify, in the case of
any suit or class of suits, the Court in which 7 [the foreign State] may be sued, but it shall
not be given, unless it appears to the Central Government that 7 [the foreign State]—
• (a) has instituted a suit in the Court against the person desiring to sue 8 [it], or
• (b) by 1 [itself] or another, trades within the local limits of the jurisdiction of the Court, or
(c) is in possession of immovable property situate within those limits and is to be sued with
reference to such property or for money charged thereon, or (d) has expressly or impliedly
waived the privilege accorded to 2 [it] by this section. 3

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 • [(3) Except with the consent of the Central Government, certified in writing by a Secretary
to that Government, no decree shall be executed against the property of any foreign State.]
• (4) The preceding provisions of this section shall apply in relation to— 4 [(a) any ruler of
a foreign State;]
5 [(aa)] any Ambassador or Envoy of a foreign State;
• (b) any High Commissioner of a Commonwealth country; and
• (c) any such member of the staff 6 [of the foreign State or the staff or retinue of the
Ambassador] or Envoy of a foreign State or of the High Commissioner of a
Commonwealth country as the Central Government may, by general or special order,
specify in this behalf, 6 [as they apply in relation to a foreign State].
• (5) The following persons shall not be arrested under this Code. namely: —
• (a) any Ruler of a foreign State;
• (b) any Ambassador or Envoy of a foreign State;
• (c) any High Commissioner of a Commonwealth country ;
• (d) any such member of the staff of the foreign State or the staff or retinue of the Ruler,
Ambassador or Envoy of a foreign State or of the High Commissioner of a
Commonwealth country, as the Central Government may, by general or special order,
specify in this behalf.
• Opportunity
• (6) Where a request is made to the Central Government for the grant of any consent
referred to in subsection (1), the Central Government shall, before refusing to accede to
the request in whole or in part, give to the person making the request a reasonable
opportunity of being heard.]

• s. 87. Style of foreign Rulers as parties to suits

The Ruler of a foreign State may sue, and shall be sued, in the name of his State:
Provided that in giving the consent referred to in section 86, the Central Government may direct
that the Ruler may be sued in the name of an agent or in any other name.

• s.87A. Definitions of “Foreign State” and “Rulers

• ”(1) In this Part,— (a) “foreign State” means any State outside India which has been
recognised by the Central Government; and
• (b) “Ruler”, in relation to a foreign State, means the person who is for the time being
recognized by the Central Government to be the head of that State.
• (2) Every Court shall take judicial notice of the fact—
• (a) that a State has or has not been recognized by the Central Government;
• (b) that a person has or has not been recognized by the Central Government to be the
head of a State.

• SUITS AGAINST RULERS OF FORMER INDIAN STATES

S. 87B. Applications of sections 85 and 86 to Rulers of former Indian States.—
• 8 [(I) In the case of any suit by or against the Ruler of any former Indian State which is
based wholly or in part upon a cause of action which arose before the commencement of
the Constitution or any proceeding arising out of such suit, the provisions of section 85 and sub-
sections (1) and (3) of section 86 shall apply in relation to such Ruler as they apply in relation to
the Ruler of a foreign State.]

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 • Annexation of Jhansi
• Secretary of State in Council of India v Kamachee Boye Sahab:
PC 9 Jul 1859
• ‘The transactions of independent states between each other are governed by other laws
than those which municipal courts administer: such courts have neither the means of
deciding what is right, nor the power of enforcing any decision which they may make.’
Lord Kingsdown said: ‘The transactions of independent states between each other are
governed by other laws than those which municipal courts administer: such courts have
neither the means of deciding what is right, nor the power of enforcing any decision
which they may make.’

2. Judicial Act
• English Law :
• The Courts and Legal Service Act 1990
• INDIAN Law
• S. 77 and 78 IPC
• Judicial Officers Protecting Act 1850
• Judges Protection Act
• Act of Judge when acting judicially
• Act of Judge when acting judicially.

• S. 77. Act of Judge when acting judicially.--Nothing is an offence which is done by a Judge
when acting judicially in the exercise of any power which is, or which in good faith he
believes to be, given to him by law.

• 78. Act done pursuant to the judgment or order of Court.

• 78. Act done pursuant to the judgment or order of Court.--Nothing which is done in
pursuance of, or which is warranted by the judgment or order of, a Court of Justice, if
done whilst such judgment or order remains in force, is an offence, notwithstanding the
Court may have had no jurisdiction to pass such judgment or order, provided the person
doing the act in good faith believes that the Court had such jurisdiction.

• 79. Act done by a person justified, or by mistake of fact believing himself, justified, by law
S. 79. Act done by a person justified, or by mistake of fact believing himself, justified, by law.--
Nothing is an offence which is done by any person who is justified by law, or who by reason of a
mistake of fact and not by reason of a mistake of law in good faith, believes himself to be justified
by law, in doing it.
• Indian laws
• JUDICIAL ACT
When a Judge acts within jurisdiction no act ion lies for acts done or words spoken by a Judge in
the exercise of his judicial office, although his motive is malicious and the acts or words are not
done or spoken in the honest exercise of his office. 29This doctrine has been applied not only to
the superior courts, but also to Judges of inferior courts including the court of a Coroner and a
Court-martial.

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 • JUDICIAL ACT
It is essential in all courts that the Judges who are appointed to administer the law should be
permitted to administer it under the protection of the law independently and freely, without favour
and without fear. This provision of the law is not for the protection or benefit of a malicious or
corrupt Judge, but for the benefit of the public, whose interest it is that the Judges should be at
liberty to exercise their functions with independence and without fear of consequences.

• 34 McC v. Mullan,
(1984) 3 All ER 908 (916) : (1984) 3 WLR 1227
• The principle behind the common law rule of immunity of a Judge, whether of superior
court or inferior court, from an act ion when he acts within jurisdiction, although
maliciously and contrary to good faith, has been stated to be that “if one judge in a
thousand acts dishonestly within his jurisdiction to the detriment of a party before him, it
is less harmful to the health of society to leave that party without a remedy than that nine
hundred and ninety-nine honest judges should be harassed by vexatious litigation alleging
malice in the exercise of their proper jurisdiction.”

• JUDICIAL ACT
• Section 108(2) of the Courts and Legal Services Act, 1990. Magistrates also enjoy the same
immunity as judges while acting within their jurisdiction.
• 3. Executive Acts
• “ An officer are liable for torts committed by the officers in the course of employment
except when they are committing sovereign acts”
• Private Person?

• 4. Statutory acts
• “ If the legislature authorizes the doing of an act which if unauthorized would be a
wrong no action would be maintained for that act, on the ground that no court can
treat that as a wrong which the legislature has authorized an consequently the
person who has suffered that loss would have no remedy unless the legislature
deems feel fit”
• Damnum Sine Injuria

• 5. Volenti non fit injuria

• Meaning – where the suffered is willing no injury is done.
• Harm suffered voluntarily does not constitute a legal injury.

• 5. Volenti non fit injuria

• Ilott v. Wilkes (1820)

• was a tort law case where a trespasser injured by a spring gun on the defendant's land was
denied damages because he had voluntarily assumed the risk, establishing the principle
of *volenti non fit injuria (no injury is done to a willing person) in this context. The court
held that the plaintiff, having full knowledge of the danger and knowingly entering the
property, could not recover for his injuries, as he had willingly undertaken the risk.

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 Case Summary
• Facts:
• The defendant had placed spring guns on his land to protect game. The plaintiff was
injured by one of these spring guns while trespassing on the land.
• Legal Principle:
• The case considered the defense of volenti non fit injuria (or consent/assumption of risk).
• Decision:
• The court found the defendant not liable, ruling that the plaintiff had voluntarily
encountered a known risk.
• Cases
• Illot v Wilkis (1820)
• Bird Vs Holbrook (1828)
• Dr laxman Balkrishnan Vs Dr. Trimbak Bapu (AIR 1969 sc 128)

• Volenti non fit injuria

• Bird v. Holbrook
• In, a seminal tort law case from 1828, the English court ruled that a property owner cannot
use a spring gun to protect their property from trespassers without giving any warning,
even if the trespasser is an innocent trespasser like a youth who was injured by the trap.
• The court held that while property owners can use force to defend their property, the force
must be proportionate to the threat and not pose an unreasonable risk of life or serious
bodily harm to another person.
• Holbrook was found liable for battery because his use of the spring gun was an excessive
and wrongful use of force, as he intended to cause serious harm rather than merely protect
his garden.
• Background of the Case
• The defendant, Holbrook, had placed a concealed spring gun in his garden to protect his
tulips from being stolen.
• He failed to post any warning signs about the presence of the dangerous trap.
• The plaintiff, William Bird, was an innocent 19-year-old who entered the garden to retrieve
a pea-hen belonging to his father.

• Bird v. Holbrook
The Legal Issue
• The core question was whether Holbrook's actions of setting a spring gun to defend his
property, which resulted in Bird's injury, were a justifiable act of self-defense or an unlawful
act of violence.
• The Court's Decision and Reasoning
• The court found in favor of the plaintiff, Bird, holding Holbrook liable for damages.
• The decision established that property owners have the right to defend their land but must
ensure that the methods used are reasonable and proportionate to the threat.
• Using a spring gun, which is capable of inflicting severe bodily harm, was deemed an
excessive and unreasonable reaction to a non-violent intrusion.
• The court stressed that a property owner cannot indirectly do that which they are forbidden
to do directly, meaning they cannot cause harm to an innocent trespasser through a hidden
trap.

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 • Volenti non fit injuria
• Volenti non fit injuria
• Essential Conditions
• 1. Consent must be freely given , without duress.
• Consent cant be for illegal acts.
• Knowledge of risk is not the same as running the risk.

• Essential Conditions
• 1. Consent mst be freely given , without duress
• Brunett Vs British Waterways Board (1972) 2 All ER 1353
• White Vs Blackmore ( 1972)

• Essential Conditions
• 1. Consent must be freely given , without duress.
Lakshmi Rajan V. Malar Hospital Ltd.
• [Link] cant be for illegal acts.
Maxim Used : “Ex turpi causa non oritur actio”
Meaning : From an immoral cause,no action arises.

R. V. Williams
• 3. Knowledge of risk is not the same as running the risk.
• Smith v Baker (1891)
• Lakshmi Rajan V. Malar Hospital Ltd.
The case, Lakshmi Rajan v. Malar Hospital Ltd. & Another, involves a patient, Lakshmi Rajan,
who underwent surgery at Malar Hospital for a breast tumor. The surgeon also removed her uterus
without her consent. This case highlights issues of medical negligence and the principle of "volenti
non fit injuria" (that a person who knowingly puts themselves at risk cannot sue for injury).

• Key Points:
• Consent is Crucial:
• Lakshmi Rajan consented to surgery for the breast tumor, but not for the removal of her
uterus.
• The hospital was found liable because the surgeon acted without her informed consent.
• Medical Negligence:
• The removal of the uterus without consent was deemed medical negligence, as the surgeon
• did not have a valid reason to perform the procedure.

• Volenti Non Fit Injuria:

• The hospital attempted to use the defense of "volenti non fit injuria,“
• arguing that Lakshmi Rajan had consented to the surgery. However, the court found this
defense inapplicable because she had only consented to the breast surgery, not the
hysterectomy.

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 • 3. Knowledge of risk is not the same as
running the risk.
• Rescue Cases
• When a plaintiff voluntarily encounters a risk to rescue somebody from an imminent
danger created by the wrongful act of the defendant,he can’t use the defence of Volenti
Non Fit Injuria.

Case Laws For Rescue Cases :-

• Haynes V. Harwood
Haynes v Harwood 1 KB 146 is a UK Court
• Appeal case where a police officer, Haynes, was injured stopping a runaway horse-drawn
van.
• The case established that a negligent party is liable for damagesto a rescuer who intervenes
to prevent harm to the public from the initial negligence, even if the rescuer's specific
actions were not directly foreseen.
• The court rejected the defendant's argument that a child's action of throwing a stone broke
the chain of causation, deeming Harwood's servant negligent for leaving the van
unattended on a busy street
• Where such an incident was a foreseeable risk.

• Haynes V. Harwood
Facts
• Harwood's servant left a horse-drawn van unattended on a busy street.
• A boy threw a stone at the horses, causing them to panic and bolt.
• Police constable Haynes, on duty in the police station, saw
• the horses running loose with a
• woman and children in their path.
• Haynes ran out to stop the horses and was injured in the process.
Issue
• Was the defendant, Harwood, liable for the injuries sustained by
• Haynes, the police officer who intervened
• to save others from the danger created by Harwood's negligence?
Decision
• The court ruled in favor of the plaintiff, Haynes.
• They held Harwood liable for the injuries suffered by Haynes.
• Rescue Cases
• Barnard Vs Osborn Garret And Co
• (1924) 1 KB 548
• Wagner Vs International Railways
• (1921) 232 NY 176
• Bockpitt Vs Oates (1968)
• 1 AER 1145
• Cutler Vs United Dairies (1933) 2 KB 297
• Cutler Vs United Dairies (1933) 2 KB 297
• Cutler v United Dairies (1933) 2 KB 297 is a UK case in tort law that illustrates the defense
of volenti non fit injuria (a person is not injured if they freely consent to the risk).

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• The court ruled that a man injured while trying to stop a horse was volens, meaning he
consented to the risk, because there was no immediate human danger or compelling duty
to act.
• Cutler Vs United Dairies (1933) 2 KB 297
• Case Context
• The case involves a scenario where a driver's horses bolted, and the plaintiff, Cutler,
intervened to stop them, resulting in his injury. The legal issue was whether Cutler could
claim damages from United Dairies, the owner of the horses, despite his involvement in
the incident.
• Legal Principle
• The court applied the defense of volenti non fit injuria, which requires that the claimant
must have voluntarily assumed the risk of injury with full knowledge of its nature and
extent.
• Outcome
• The court found that Cutler was volens because:
• No immediate human danger: Unlike in other rescue cases, there was no immediate
danger to human life.
• No compelling duty: Cutler was not under any duty to act.
• Voluntary undertaking: He voluntarily undertook the role of restraining the horse,
knowing the danger involved.
• Bockpitt Vs Oates (1968)
1 AER 1145

National Insurance Company Vs Anusha Nair

• Entitlement Of Claimant Only 13 Years Child —
• Claimant only 13 years child
• Cannot be presumed to have knowledge of her brother being statutorily disqualified —
Further by riding on it as pillion rider is voluntarily taking risk — Driver of car after seeing
rider of motorcycle not slowing down vehicle — Driver of car taking risk voluntarily
• Applying doctrine of volenti non fit injuria, claimant entitled to compensation.
• (B) Torts - Negligence - Claimant only 13 years child - Cannot be presumed to have
knowledge of her brother being statutorily disqualified - Further by riding on it as pillion
rider is voluntarily taking risk –
• Driver of car after seeingrider of motorcycle not slowing down vehicle –
• Driver of car taking risk voluntarily –
• Applying doctrine of volenti non fit injuria, claimant entitled to compensation.
• Maxims - 'Volenti non fit injuria' –
• Applicability.
• Motor Vehicles Act (59 of 1988) S.4— (Para10)

• 5. Parental and Quasi Parental Authority

• In Rex Vs New Port
• (1929)
• In the case of Rex v. Newport Justices (1929), a student was punished with five strokes
with a cane by the schoolmaster because the student was found smoking a cigarette on his
way home from school.

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 • 6. Authorities of necessity.
Three classes
• Cases of Public Necessity
• Cases of Private Necessity
• Olga Tellis v Bombay Municipality (1985)
• Cases where Assistance given without consent as a matter of necessity
• Episode 3.3: Intentional Torts Privileges: Private and Public Necessity
• [Link]
• 7. Insanity as a torts defense
• Reason for inquiry
• First, enquiring as to the extent to which tort law is, and should be, sensitive to the role
that luck plays in our lives?
• Secondly, its necessity to consideration of its relationship with the defense of
involuntariness. Are the bodily movements of an insane person truly voluntary?
• Thirdly, the position that tort law takes in relation to the defendant's insanity has
implications for the persuasiveness of certain accounts of tort.

• Cases
• In Adamson v Motor Vehicle ( 1957) 58 WALR 56 CSC).
• Williams v Hays143 NY 442 (1894).
• Tindale v Tindale 22 [1950] 4 DLR 363 (BCSC).
• Delahanty v Hinckley 799 F Supp 184 (DDC 1992).
• Summary
• (1) Insanity per se is not an absent element defense. This is because no tort includes
sanity on the part of the defendant as one of its elements.
• (2) Nevertheless, insanity can occasionally function as an absent element defense
indirectly. (eg of the action in deceit).
• (3) The breach element of the tort of negligence cannot be negated indirectly by
insanity on the part of the defendant. This is because the fact that the defendant
was insane at the material time is ignored in determining the standard of care.
• (4) Insanity is not an affirmative defense to any tort
• s. 36. Right of private defence against act of a person of unsound mind, etc.
• 36. When an act, which would otherwise be a certain offence, is not that offence, by reason
of the youth, the want of maturity of understanding, the unsoundness of mind or the
intoxication of the person doing that act, or by reason of any misconception on the part
of that person, every person has the same right of private defence against that act
which he would have if the act were that offence.

• 8. Private Defence
• “ Ever person has a right to protect his person or property and for this purpose he
can use necessary force. Thus if a person uses necessary force to protect his person
or property and cause harm to another person no action can lie against him”
• Conditions
• Imminent Danger
• Proportionate Force

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• Private Defense
• Morris Vs Nugent ( 1830)

IPC
• S. 96 – Nothing is an offence which is done with in the exercise of the right of private
Defense
• S. 97. Right of private Defense of body and person
• S. 98 – Right of Private Defense against the person of Unsound Mind

• Private Defense of Property

• Private Defense of Property
• 37. (1) There is no right of private defense,–
• (a) against an act which does not reasonably cause the apprehension of death or of grievous
hurt, if done, or attempted to be done, by a public servant acting in good faith under colour
of his office, though that act, may not be strictly justifiable by law;
• (b) against an act which does not reasonably cause the apprehension of death or of
grievous hurt, if done, or attempted to be done, by the direction of a public servant acting
in good faith under colour of his office, though that direction may not be strictly justifiable
by law;
• (c) in cases in which there is time to have recourse to the protection of the public
authorities.
• (2) The right of private defence in no case extends to the inflicting of more harm than it
is necessary to inflict for the purpose of defence.
• When right of private defence of body extends to causing death.

• 38. The right of private defence of the body extends, under the restrictions specified in
section 37, to the voluntary causing of death or of any other harm to the assailant, if the
offence which occasions the exercise of the right be of any of the descriptions hereinafter
enumerated, namely:—
• (a) such an assault as may reasonably cause the apprehension that death will otherwise be
the consequence of such assault;
• (b) such an assault as may reasonably cause the apprehension that grievous hurt will
otherwise be the consequence of such assault;
• (c) an assault with the intention of committing rape;
• When right of private defence of body extends to causing death.
• (d) an assault with the intention of gratifying unnatural lust;
• (e) an assault with the intention of kidnapping or abducting;
• (f) an assault with the intention of wrongfully confining a person, under circumstances
which may reasonably cause him to apprehend that he will be unable to have recourse to
the public authorities for his release;
• (g) an act of throwing or administering acid or an attempt to throw or administer acid
which may reasonably cause the apprehension that grievous hurt will otherwise be the
consequence of such act.

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• When such right extends to causing any harm other than death.
• 39. If the offence be not of any of the descriptions specified in section 38, the right of
private defence of the body does not extend to the voluntary causing of death to the
assailant, but does extend, under the restrictions specified in section 37, to the voluntary
causing to the assailant of any harm other than death.

S. 40. Commencement and continuance of right of private defence of body.

40. The right of private defence of the body commences as soon as a reasonable apprehension
of danger to the body arises from an attempt or threat to commit the offence though the
offence may not have been committed; and it continues as long as such apprehension of danger
to the body continues.

• 9. Inevitable Accident
• “Accidents occurring which are beyond control may be termed as inevitable accidents.
• The defense is based on negligence.
• They are such accidents which could not have been averted even while exercising best judgement and even
applying great caution and care.
• The defense may be established by the person who asserts it.

• Stanley V. Powell
• In the case of Stanley v Powell, heard in the Court of Appeal (Civil Division) in 1891, the
central issue was whether the defendant, Powell, was liable for the injury sustained by the
plaintiff, Stanley, during a shooting party. Stanley was injured when a shot fired by Powell
ricocheted off a tree and struck him in the eye.
• The injury was deemed accidental, with no evidence of negligence on Powell’s part.
Initially, a jury found Powell not to be acting negligently and awarded Stanley £100 in
damages. However, upon agreement by both parties, the case was referred to the judge for
a final decision.

• Issue Raised
• Whether the defendant was liable for the plaintiff’s injury caused by a shot fired from the
defendant’s gun, even though the injury was accidental and not due to the defendant’s
negligence or intentional act.
• Arguments
• The plaintiff argued that the defendant should be liable because the injury was caused by
a shot fired from the defendant’s gun.
• The defendant argued that he was not liable because the injury was accidental and not
caused by his negligence or intentional act.
• Stanley v Powell Judgement
• The court held that the injury was accidental and that the defence of an inevitable
accident was available. Since the injury was not caused by the defendant’s negligence or
intentional act, the defendant was not liable for the plaintiff’s injury. The judgement in
favour of the defendant was upheld

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 Inevitable Accident

• Cases
• Minu B Mehtav Balkrishna Ramchandra Nayas( AIR 1977 SC 1248)
• Executive Engineer, M.I. Division Vs Niranjan Behra ( AIR 1995 Ori 81)

• 10. Act of God ( Vis major)

• Cases
• Nicolas Vs Marshland (1876 2 Ex.D.1.)
• Greenrock Corp. V. Caledonian Ry(1917 A.C. 556.)
• Act of God ( Vis major)
• Vohra Sadikbhai RajakbhaiVs St of Gujarat (2016) 4 SCC Civ 664

• 10. Act of God ( Vis major)

• Sir Fredrick Pollock
“ An act of god is so unexpected that no human force or skill could reasonable be expected
to be anticipate it “
• John Salmond
“ An act of god include those act which a man cannot avoid even by taking reasonable
care. Such accidents are a result of natural force and are unconnected with the agency of man”
• Condition
• Operation of natural force
• Extraordinary cant be anticipated reasonably

• [Link] a Wrongdoer
• Principle
“ The plaintiff Is not disabled from recovering by reason of being himself a wrongdoer
unless some lawful act or conduct on his part is connected with the harm suffered by him
as part of the same transaction.”
• “One must come to justice with clean hands”
• Saunders v Edwards
(1987) 2 AER 651
• Pitts v Hunt (1990) 3 AER
• The learned judge then considered the various defences which had been raised by the first
defendants.

• Firstly he held that the plaintiff could not maintain an action which was based on or arose
out of criminal conduct on his part, "ex turpi causa non oritur actio.
• Secondly that on the grounds of public policy the law would not recognize in the
circumstances of this claim that a duty of care was owed by the deceased to the appellant.
• Thirdly that, even if the appellant would ordinarily have been owed the normal duty of
care, the risk of injury was so glaring and obvious, he must be taken to have willingly
accepted any risk of injury involved, "violenti non fit injuria"

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• 12. Act causing slight harm
• De Minimis non curate lex
• The law does not take account of trifling acts.
• S. 95 IPC
• 95. Act causing slight harm.—nothing is an offence by reason that it causes, or that it is
intended to cause, or that it is known to be likely to cause, any harm, if that harm is so
slight that no person of ordinary sense and temper would complain of such harm.

• 12. Act causing slight harm

• (Holdford v Bailey ) (1849)

• Cases
• The Reward ( 1818 ) 165 ER 1482
• R vs R Ling (1954 ) 109 CCC 306

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