General Defences in the Contract Law and

The General Defences in the contarct law

1. Defences:
pp2

2. 1. Volenti Non Fit Injuria
It means ‘where the sufferer is willing, no injury is
done’.
Consent is a defense to negligence where the
claimant freely and knowingly agrees to accept the
risk of harm, so the defendant is not liable for
resulting injury.
In other words, when a person consents to the
infliction of some harm upon himself, it does not
constitute a legal injury and, therefore, is not
actionable.

3. Consent to suffer the harm may be express or implied. It
can be inferred from the conduct of the parties.
Express Consent
E.g. When you send an invitation card and invite somebody
to your house, you cannot sue him for trespass; or When
you submit yourself for surgical operation, you cannot sue
the hospital authorities for doing the same.
Implied Consent
A player in the games of cricket or hockey is deemed to be
agreeing to any hurt which may be likely in the normal
course of the game.

4. Essentials
Consent must be free;
Consent cannot be given to an illegal
act;
Knowledge of risk is not the same
thing as consent to run the risk.

5. a. Consent must be freely given
The consent is not free if it has been obtained by undue
influence, coercion, fraud, misrepresentation, mistake or
the like elements which adversely affect a free consent.
Imprial Chemical Industries Ltd. V. Shatwell, (1964) 3
WLR 329 (HL)
The plaintiff was employed by the defendant on a barge,
and plaintiff received injuries owing to the breaking of a
defective rope by which the barge was being pulled.
It was held that there was no implied consent to bear the
risk on the part of the plaintiff as he had no knowledge of
the defective rope.

6. Hall v. Brooklands Auto-Racing Club, (1939) 1 KB 205
The plaintiff was a spectator at a motor car race being held at
Brooklands on a track owned by the defendant company.
During the race, there was collision between two cars, one of
which was thrown among the spectators, thereby injuring 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, the defendant was not liable.

7. b. Consent cannot be given to an illegal act
No consent can legalise an unlawful act or an act which is
prohibited by law and when the tort, is of such a character is
to amount to a crime.
e.g. fighting with naked fists, duel with sharp swords are
unlawful and even though the parties may have consented,
yet the law will permit an action at the instance of the
plaintiff.

8. c. Knowledge of risk is not the same thing as
consent to run the risk
Smith v. Baker, 1891 AC 325
In this case, the plaintiff worked in a cutting on the top of
which a crane of ten jibbed carrying heavy stone over his
head while he was drilling the rock face in the cutting. Both
he and employers knew tht there was a risk of stones falling,
but no warning was given to him of the moment at which
any particular jibbing commenced. A stone from the crane
fell upon him and injured. The House of Lords defendants
were liable.

9. Exception to the rule
Rescue Cases
Doctrine of assumption of risk does not apply where plaintiff
has under an exigency caused by defendant’s wrongful
misconduct, consciously and deliberately, faced a risk, even
of death to rescue another from imminent danger of
personal injury or death, the defence of leave and licence is
not applicable to the plaintiff, whether the person
endangered was one to whom he owed a duty of protection
as a member of his family, or was a mere stranger to whom
he owed no such duty.

10. Haynes v. Harwood, (1935) 1 KB 146
The defendant negligently left his horses unattended in a
crowded street, a boy threw a stone at them and they ran
helter-skelter. The plaintiff, constable on duty, perceiving
the danger to the lives of the persons, ran out and stopped
the horses but was seriously injured. It was held that he was
entitled to recover damages, as the defendant was grossly
negligent, an that the defences of Volenti non fit Injuria and
novus actus interveniens, were held not to apply to the rescue
cases, the act of a third party also intervening and the
voluntarily undertaking the risk by the plaintiff were not
open to the defendant.

11. Dr. J N Srivastava v. Ram Bihari Lal and Others, AIR 1982
M.P. 132
The doctor observed after opening the abdomen cavity that
patient’s appendix was all right but the operation of Gall-
bladder was needful. He proceeded with the operation- later
on the patient died. The Court held that it was not possible
to seek the consent for the Gall-bladder operation. In such
circumstances doctor was not responsible.

12. Baker v. T.E. Hokins and Sons, (1959) 1 WLR 966
A well was filled with poisonous fumes of a petrol driven pump on
account of negligence of the employer, as a result of which two
workmen were overcome by fumes. Dr. Baker was called to rescue
their lives but he was told not to enter the well in view of the risk
involved. Still he preferred to enter the well with a view to sae their
lives. In the attempt of saving them he himself was overcome by
the fumes and he died. The widow of Dr. Baker sued the employer
to claim compensation for her husband’s death. The defendants
pleaded Volenti non fit Injuria.
It was held that the act of rescuer was the natural consequence of
the defendant’s negligent act which he could have foreseen and
therefore, the defence of Volenti non fit Injuria did not apply. The
defendants were, thus, held liable.

13. Distinction between Volenti Non Fit Injuria
& Contributory Negligence
In case of Volenti Non Fit Injuria, the plaintiff is always aware of
the nature and extent of the danger which he encounters, while it
is not so in case of Contributory negligence.
Volenti Non Fit Injuria is a complete defence, whereas in
contributory negligence the claim of the plaintiffs is reduced to
the extent the claimant himself was to blame for the loss.

14. The essential conditions of this defence are:
There must be working of natural forces without any
intervention from human agency, and
The occurrence must be extraordinary and not one which
could be anticipated and reasonably guarded against.

15. Nicholas v. Marshland, (1875) 2 KB 297
The defendant constructed three artificial lakes which were
fed by a natural stream. The lakes were well constructed and
adequate in al normal circumstances. However, they were
destroyed by a very heavy rainfall of quite exceptional
violence, with the result that the plaintiff’s bridges were
damages.
It was held that the defendant was not negligent and the
accident was due to an act of God.

16. The Law Reform (Contributory
Negligence) Act 1945
The act abolishes the rule by which contributory
negligence on the part of the claimant was a
complete bar to success in a claim, but requires a
reduction in the claimant’s damages where the
claimant’s fault has contributed to the harm
suffered.
 It allows damages to be apportioned based on the
claimant’s share of responsibility for the harm
incurred.