1. Consent or volenti non fit injuria

The literal meaning of the phrase “volenti non fit injuria” is “to a willing person, no injury is done”. It is a legal principle that developed during the 19th century in England as part of the ideas of free market and freedom of contract.
The basic idea behind this principle is that if a person voluntarily agrees or consents to something being done to them, then they cannot later claim that they suffered an “actionable injury” from it.

In simple terms, it means that if you agree or consent to something, you cannot later file a lawsuit claiming you were harmed by that very thing you agreed to. There can be express consent or implied consent based on a person’s actions.

Express consent means directly and clearly stating by words that you agree to something. For example:

• If a patient explicitly allows or permits a doctor to perform an operation, they cannot later sue the doctor for medical negligence/battery.
• If someone gives you permission to enter their land, they cannot sue you for trespassing.
• If someone explicitly agrees to their statement being published, they cannot sue for defamation.

Implied consent means consent that is understood from a person’s actions, even if not expressly stated in words. Consent is more often implied than express in many situations.

Where the injury complained of is something that normally comes with or is incidental to the activity consented to, then the law will imply consent to the risk of that injury.

For example, in a sports game:

• Players implicitly consent to the ordinary risks involved in playing the game. They cannot later sue for injuries that result from normal or usual actions in the game without foul play.
• Spectators also implicitly consent to the risks of watching the game. They understand there is a chance of injury from things like stray balls etc and accept those risks by watching.

In the case of Hall v. Brooklands Auto-Racing Club (1933), this concept of implied consent was applied:

• Spectators had to pay to enter a motor racing track and stands were provided for safe viewing.
• However, some spectators stood outside the railings to watch, where it was more dangerous.
• During a race, two cars collided and one was sent flying into the railings, killing two spectators.
• The court said the owners were not legally responsible because spectators implicitly consented to dangers inherent in watching a fast motor sport. The owners had made viewing areas safe but couldn’t guarantee safety for all potential dangers.

1.1. Q. What constitutes consent? Mere knowledge of the Risk is not consent.

• Bowen L.J. in the case of Thomas v. Quartermaine (1817).
• not to consider “scienti non fit injuria” (meaning that with knowledge, there is no injury) but “volenti” (meaning that there must be voluntary acceptance).
• Elements of consent.
  • Thomas v Quartermaine (1817)
  • Smith v Baker (1891)

It’s essential to note that merely having knowledge about the risks involved does not automatically mean there is consent.

Bowen L.J. emphasized this in the case of Thomas v. Quartermaine (1817). He stated that the principle to consider is not “scienti non fit injuria” (meaning that with knowledge, there is no injury) but “volenti” (meaning that there must be voluntary acceptance).

In other words, simply being aware of the existence of a risk does not prevent someone from taking legal action if they are harmed. For a valid defense based on consent, the risk must have been knowingly and willingly accepted. There are situations where a person may perceive the presence of danger without fully understanding the extent or nature of the risk. This can occur if the person has limited intelligence or lacks complete information about the danger.

Furthermore, there may be circumstances indicating that the risk was not voluntarily assumed. In such cases, the defendant cannot fulfill their legal obligations by solely proving that the person had knowledge of the danger. Knowledge alone does not serve as a conclusive defense.

However, when the knowledge of the risk leaves no doubt that it was voluntarily encountered, the defense based on consent can be applicable. Consent implies having knowledge of the risk, but knowledge alone is not enough. It is only one element of consent. The maxim (a general rule) applies only when there is genuine, free, and voluntary consent. For consent to be valid, all the necessary elements must be present, and it must be given without any kind of force, fraud, or compulsion.

• Essential elements of consent: (i) Knowledge of the risk– The person needs to be aware that a risk or danger exists. They must perceive and recognize the potential for harm. (ii) Understanding of the risk – It’s not enough just to know about a risk. The person must fully comprehend the nature and extent of the risk. They need to understand how and why the risk may cause harm. (iii) Acceptance of the risk – Once the person knows about the risk and understands it, they must voluntarily accept it. They have to consciously choose to take on the risk, not just be aware of it happening. Acceptance requires making a decision to take the risk with full awareness of what it involves. For the Thomas v Quartermaine (1817) case – The plaintiff knew he was working around hot vats and boiling liquids. He understood the danger of falling in could lead to scalding. By choosing to reach under the boiling vat, he accepted the risk of losing his balance and sustaining burns. So he was considered to have consented. In Smith v Baker (1891) – The plaintiff was aware stones could fall from the crane overhead while working. But he did not comprehend the specific operation happening above him until injury. He had knowledge of a general risk but lacked understanding of the immediate risk. So his consent could not be assumed based only on awareness of a danger in the workplace. All three elements – knowledge, understanding, and acceptance – were needed for valid consent in this situation. Exceptions of consent
  1. Consent by fraud: Consent obtained by fraud means that someone has given permission for something based on false information or deception. In legal terms, if consent is obtained through fraud, it is not considered free consent. In the case of R. V. Williams (1923), a music teacher convinced a 16-year-old girl to have sexual intercourse with him by falsely claiming that it was a medical procedure that would improve her voice. The court found the music teacher guilty of rape because he obtained consent through fraud. On the other hand, in a court case called R. V. Clarence, it was decided that it is not considered a crime for a husband to give his wife a sexually transmitted disease, even if she would not have agreed to have sex if she knew about his condition. The court in this case made a distinction from a previous case because the wife’s misunderstanding was not about the actual act of sex, but rather about the outcome of getting infected with a disease.
  2. Consent is given under protest: Consent given under protest means consent that is given unwillingly. It happens when someone agrees to something but clearly expresses that they do not want to do it. Two legal cases help explain this concept:
     1. In Yarmouth v. France, a cart driver was required by his boss to drive a horse that was known to be dangerous and unfit. The driver protested and said he did not want to, but his boss made him do it anyway. While driving the horse, it kicked the driver and broke his leg. The court said his actions were not truly voluntary since he only drove the horse because his boss forced him to despite his protests.
     2. In another case, Bowater v. Rowley Regis Corporation, a cart driver also protested having to drive a horse that was known to bolt and be dangerous. But again his boss made him do it. The horse bolted and injured the driver. The company was found liable because the driver only drove the horse unwillingly after protesting.
     For consent to be valid, a person must truly choose freely without feeling forced or constrained. They need full knowledge of the risks and freedom to make their own decision. If someone protests an action but is forced to do it, their consent is not real or valid according to the law. The risk remains with the person who required the unwilling action, not the person who protested but had no real choice.
  3. Obedience of order of superiors Even if a worker does not explicitly protest an unsafe work condition or order, but simply obeys their supervisor, the courts may still find they did not voluntarily assume the risk. One example is the case Secretary of State v. Rukminibai. In this case:
     • The deceased was a railway employee working as a trollyman under the supervision of a Permanent Way Inspector (PWI).A train approached the trolly in a tunnel. All the trollymen, including the deceased, jumped off to escape.However, the deceased was struck by a part of the trolly and killed after his head hit the tunnel wall.The accident occurred because the PWI was negligent and did not follow safety rules regarding operation of trollies.
     Even though the deceased did not protest any order, he was still acting under the supervision and direction of the PWI at the time. As his superior, the PWI had control over the work situation. The court determined simply obeying orders from a supervisor does not equal voluntarily assuming the risk. The worker is under the control and direction of their superior in these situations, reducing their ability to freely choose to accept a risk. So protest is not necessary – if a worker faces an unsafe situation due to following a supervisor’s order, their consent may still not be considered voluntary in the eyes of the law.
     1. Rescue cases
     The rule called ‘volenti non fit injuria’ means that a person cannot claim damages for an injury if they voluntarily took the risk which caused the injury. However, this rule does not apply in rescue cases. A rescue case is when someone gets injured while trying to rescue or help someone else who is in danger because of another person’s wrong actions. Some key points about rescue cases:
     • If someone is in danger because of what another person did wrong, like leaving a horse carriage unattended which caused an accident, it is expected that people will try to help or rescue the person in danger.The law understands that when a person sees someone else in danger, their natural reaction is to help or rescue them. This is a normal human response.So, if a rescuer then gets injured while trying to help the person in danger, the person who originally caused the danger through their wrong actions is still responsible. Even though the rescuer chose to help, it was a foreseeable result of the first person’s actions.This was recognized in cases like Wagner v International Railway (1921), where a friend tried to rescue someone hit by a train due to railway’s negligence. He got injured and the railway had to pay damages.In other cases like Haynes v Harwood and Baker v T.E Hopkins, people who tried to rescue others in accidents caused by defendants were also given damages, as their rescue acts were foreseeable consequences of the original wrongful acts.So the ‘volenti’ rule does not apply to rescuers as helping others in danger is a normal human response expected in such situations.Persons of tender age and lunatics/people with mental illness:
     • Tender age refers to young children who are not mature enough to understand things fully.
     • Lunatics or people with mental illness may not be able to understand things properly due to their condition.
     • In the eyes of the law, consent given by such people like young children or those with mental illness is not considered valid consent.
     • This is because they may not fully grasp what they are consenting to due to their age or mental state.
     • However, consent given by their guardians or parents can be sufficient.
     • Guardians/parents are legally responsible for the welfare of such people who cannot consent themselves.
     • So if a doctor needs to perform an operation on a young child, the consent given by the child’s parents or legal guardian is enough to protect the doctor.
     • Even though the child themselves did not consent due to their age, getting consent from the parents/guardian fulfills the legal requirement.
     • Similarly, if a person with mental illness needs medical treatment, consent from their appointed legal guardian can make the treatment lawful.
     • In summary, directly obtaining consent from young children, lunatics or mentally ill people is not valid in law. But consent from their parents/guardians acts as a substitute to fulfill the consent requirement.

2. Inevitable accident

Inevitable accident means an accident that cannot be avoided even if reasonable care is taken.

• It is an accident whose consequences could not have been foreseen or avoided through reasonable care and skills.
• Acts of God like natural disasters are sometimes called inevitable accidents. But it is better to consider them separately from accidents caused by human acts or omissions.
• For an accident to be called inevitable, it must have occurred due to some act or omission by the defendant or people they are responsible for.
• Even if the defendant or their staff did something that led to the accident, they will not be liable if the accident could not have reasonably been avoided through proper care.
• For example, if a driver suddenly became unconscious for an unknown medical reason and lost control of their car, hitting someone, they would not be held responsible. This is because they could not foresee or control the loss of consciousness.
• In the past, a person was always held responsible for injuring someone, even by accident, under trespassing laws. But courts later recognized inevitable accident as a defense.
• One case found that a member of a shooting party accidentally injuring someone would not be liable, if the jury decided they were not negligent in any way.
• So to claim an inevitable accident, the defendant must show the accident was truly unforeseeable and unavoidable despite taking proper reasonable care in their actions. Only then will they not be held responsible legally.
• In Fardon v Harcourt Rivington case, the defendant parked his car with his dog inside and went into a shop, leaving the dog unattended.
• While alone, the dog became excited and broke the back window with its paws/nose. Glass shards injured the plaintiff’s eye as he walked by.
• The plaintiff argued the defendant was negligent by leaving the dog unattended in the car on a public road. Precautions like tying up the dog could have been taken.
• The House of Lords had to decide if this was a case of inevitable accident, clearing the defendant of liability.
• Lord Dunedin ruled that the dog breaking the window was an “unlooked for event” that a reasonable person would not expect to guard against.
• While some precautions were suggested, people only need to consider “reasonable probabilities”, not “fantastic possibilities”.
• If a danger is so unlikely that no reasonable person would consider it, then it can be claimed as an inevitable accident.
• However, if the danger was real and foreseeable, then the defendant had a duty of care. Failing to take precautions would make them negligent.
• So the defence is limited to truly unforeseeable dangers, not ones a reasonable person would have guarded against.

3. Act of God or Vis major or Damnum Fatale

• Lord Mansfield described it as something that occurs due to nature’s forces, not human acts.
• In reality, everything that happens involves both natural forces and human actions. We can’t even walk or eat unless nature helps us.
• To decide if something is an Act of God or a human act, we need to look at what the main or primary cause was – natural forces or human actions.
• Some examples:
  • If a ship is driven onto shore by a very strong wind storm, or a building collapses during an earthquake or is hit by lightning – the main cause is natural forces, so this would be considered an Act of God.
  • But if a collision happens just because of fog, or a fire spreads because of wind – the main cause is not natural forces or an Act of God, but human actions.

It’s not enough for something to just involve natural forces to be an Act of God defense. The natural event must be so unexpected that a reasonable person could not be expected to predict or anticipate it happening.

Nichols v. Marsland (1876): The only reported English court case where this defense was successfully used involved unusual flooding. The defendant had built dams and lakes. Then extremely heavy rainfall happened that was unprecedented – more than anyone could reasonably expect. This caused the dams and banks to burst, damaging bridges. The court said the defendant could not have foreseen such an extraordinary rainfall, so they were not liable.

In summary, for an Act of God defense, the natural event must be the primary cause and very unexpected/unforeseeable, not just involve nature along with human actions.

Though the legal principle from the case Nichols v. Marsland has never been directly challenged, the decision received some criticism.

The House of Lords (the highest court in the UK at the time) got a chance to examine this issue in another case called Greenock Corporation v Caledonian Railway.

In this new case, the Greenock Corporation had built a paddling pool for children in the natural stream bed as part of a new park. This altered the natural course of the stream. Then an extraordinary rainfall happened.

The stream overflowed at the paddling pool location. This meant a large volume of water that would normally have been safely carried away by the stream in its original path now flooded nearby railway property instead.

In this new case, the court held the Greenock Corporation liable – the “Act of God” defense did not work.

The new case was distinguished from Nichols v. Marsland on the grounds that the rainfall, while extraordinary, was not unprecedented for Scotland like it had been in the earlier case.

Some of the Lords also expressed doubt about the jury’s previous finding in Nichols v. Marsland that the rainfall was unprecedented.

It was also pointed out that in Nichols v. Marsland, the defendant had not interfered with the natural stream course. But in this new Greenock case, altering the paddling pool location did interfere with the natural course.

So in summary, while the core legal principle was not directly challenged, this new case differed on the facts and received some criticism of the earlier decision and jury findings.

4. Act of a Stranger

For someone to be held legally responsible (liable) in a tort case, there has to be some act or failure to act by that person or someone they are responsible for.

If the plaintiff’s injury is caused by the act of a “stranger” or third party, then normally the defendant cannot be made to pay compensation.

However, if the act of the stranger is something the defendant could reasonably have foreseen and guarded against, then it will not excuse the defendant from liability.

In one case (North Western Utilities Ltd. v. London Guarantee etc. Co. Ltd.), a public utility company supplied natural gas to a city.

While constructing sewers underground, the city authorities fractured a joint in one of the gas company’s main pipes. This caused gas to leak out and spread through the soil.

The gas then entered the basement of a nearby hotel, where it ignited and destroyed the building.

The court held the gas company was liable, even though the pipe was damaged by the city authorities (a third party).

This was because the sewer construction work was very conspicuous and had gone on for a long time. So the gas company should have foreseen this risk and taken steps to guard against damage by the third party’s operations.

So in summary, acts of strangers usually excuse liability, but not if the defendant could reasonably have anticipated and prevented the third party actions that led to injury.

5. Mistake

Mistakes can be of fact or of law.

For mistakes of law, there is a famous legal maxim that “ignorance of the law is no excuse”. This means you cannot avoid liability just by claiming you did not know the law.

Generally, mistakes of fact are also not an excuse to avoid legal liability for a tort.

Even though the strict liability rule for trespassing has changed to require proof of intention or negligence, a wrongdoer is still held responsible for an unavoidable mistake.

In one case (Baseley v. Clarkson), the defendant mistakenly mowed and took some grass from the plaintiff’s land while mowing his own land. He claimed it was a boundary mistake.

But the court held this mistake of fact was no grounds to avoid liability for trespassing.

In another case (Hollins v. Fowler), the defendant mistakenly delivered some goods to the wrong address. This mistake was also held not to avoid liability for the negligence.

So in summary – claims of mistakes, whether of law or fact, are usually not accepted as valid excuses to avoid legal responsibility for torts like trespassing or negligence, even if the mistakes were unavoidable or occurred by accident. Ignorance or mistake does not negate liability.

5.1. Exception

For torts, the person who is the defendant must have acted with bad intentions for them to be found responsible. This is called proving malice or intent.

Therefore, if the person who caused the harm had a mistaken but honest belief at the time, it can be considered a valid defense.

If the defendant made a mistake but thought they were doing the right thing, this can prevent them from being legally responsible.

For example, if someone is accused of maliciously prosecuting an innocent person, it’s not enough to just show the person made a mistake in prosecuting. The prosecution must have been done with actual bad intentions.

Similarly, if someone is accused of lying about another person to damage their reputation (defamation), an honest mistake in their statement can be a defense. As long as they did not intend to lie.

The same applies to fraud or deceiving claims. If the defendant just made an accident and did not mean to deceive, they cannot be held responsible.

Even for falsely arresting or imprisoning someone, a reasonable mistake in believing they had the legal right to do so can prevent legal responsibility in some situations.

Additionally, if an employee makes a mistake that takes their actions outside the normal scope of their job, their employer cannot be responsible for the employee’s legal claim (called vicarious liability). [Poland v. Parr (1927)]

In summary, mistakes generally do not remove legal responsibility. But for certain legal claims requiring bad intentions, an honest mistaken belief by the accused person can prevent them from being found legally responsible. This is to not punish people for accidental harms in some situations.

6. Necessity

Sometimes, a person may not be held legally responsible even if they intentionally caused harm or damage to someone else’s property. This is called the defense of necessity.

It applies in emergency situations where causing some harm was necessary to prevent a greater harm. A few examples:

• If a house is on fire and threatening other homes, you can pull it down to stop the fire from spreading, even if you damage the house.
• If a building is in danger of collapsing onto a road or highway, you can destroy it to prevent accidents, even if you damage the property.
• Doctors can give medical aid like operation to an unconscious patient without their permission, if it’s needed to save their life.
• If a road is blocked and in an emergency, a vehicle can drive onto neighboring land without the owner’s permission to get through.
• If someone on a bicycle is about to fall, they can hold onto a passerby to prevent falling, without it being considered battery/assault.

BASIS OF DEFENCE

1. The defense is based on protecting people (medical aid),
2. public safety (pulling down burning houses), or
3. self-protection (mooring during a storm).

CONDITION OF REASONABLENESS

1. The interference must be reasonable.
2. It must be necessary, done carefully without causing more harm than necessary, and
3. The harm prevention must be proportional to the harm caused.

It only applies in emergency situations where some controlled damage or interference is the only way to prevent greater harm. One cannot claim necessity for planned/ intentional harm. It allows well-intentioned acts to help others or prevent bigger risks in emergencies.

10. Plaintiff the wrongdoer-Ex turpi causa non oritur actio

The phrase “Ex turpi causa non oritur actio” means that a legal claim cannot arise from a base or wrongful cause. This principle is a well-known defense in contract cases. It has also been used in some tort cases to prevent the plaintiff (the person bringing the lawsuit) from recovering damages when they have been involved in a wrongful act themselves.

The principle essentially states that if the plaintiff’s own wrongful conduct is the root cause of their damages, they cannot seek compensation for those damages.

An example of this principle in action is the case of Hegarty v. Shine. In this case, a woman sued her romantic partner for transmitting a venereal disease to her. However, the court held that her claim could not succeed because it fell under the maxim “ex turpi causa non oritur actio.” This means that since her own wrongful conduct (being involved in an immoral relationship) was the cause of her harm, she could not recover damages.

Another case that illustrates this principle is Siveyer v. Allison. In this case, a woman agreed to live with a married man based on false representations made by him. Despite being deceived, she was not allowed to sue him for deceit because her own participation in the immoral association was considered a base cause under the maxim.

Furthermore, when two individuals engage in an unlawful fight and both suffer injuries as a result, neither of them can recover damages in a tort case. This is because both parties are equally responsible for their own injuries due to their participation in the unlawful act.

In summary, the maxim “ex turpi causa non oritur actio” serves as a defense that prevents a plaintiff from seeking legal remedies or damages when their own wrongful conduct is the primary cause of the harm they suffered. This principle applies in both contract and tort cases and is based on the idea that one cannot benefit from their own wrongful actions.