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The claim raised by the defendant in a civil/ criminal proceeding (under Common Law) to avoid the respective liability, is said to be a DEFENCE. The general (unspecific) defences are as follows,
1. Volenti non fit Injuria
(to a willing harm cannot be done) No man can enforce a right that he voluntarily has/ had denounced/ waived. It is also known as the ‘defence of consent’
Essentials to apply the principle
A. Consent must be free The consent provided must NOT be influenced by coercion, any undue influence, fraud, misrepresentation or mistake(s). When a person is incapable of giving his consent due to Insanity Minority, the same given by such a person’s parent/ guardian is sufficient. Consent may be expressed or implied. Aa. Consent must not be obtained by fraud As with regards to concealment of a fact to obtain a consent, is considered fraud only then when it is the DUTY of the one willing to obtain the assent, to reveal the facts. Thus, unless one (the proposer) does not possess any I. Mere concealment of facts does not amount to fraud that would vitiate the consent obtained. II. It is the duty of the proposer to reveal the facts that would be otherwise if concealed, would lead to the introduction of a misunderstanding as to the real nature of the act is considered. Ab. Consent must not be obtained under compulsion (Usually arises in master- servant relationship) Consent given under compulsion is NOT free consent. Since,
Compulsion refers to the absence of freedom of choice. (Absence of feeling of compulsion/ being compelled refers to the absence of feeling of constraint) Is Volenti non fit Injuria applicable here? Thus, there is no application of ‘Volenti non fit Injuria’ when a servant is compelled to do work inspire of his protests (hesitation). B. Knowledge AND willingness The person providing the assent should possess the complete (adequate) knowledge of that which one consents to, and the willingness to suffer/ undergo the consequences (foreseeable) of the same. Thus, mere knowledge NOT actuated with willingness to undergo the consequences or vice versa, does NOT lead to a free/ valid consent. Thus the principle of ‘Volenti non fit Injuria’ is inapplicable. C. Nature of performance of defendant’s duty (as specified or completely absent) The principle of Volenti can be upheld against the plaintiff if the defendant owed NO DUTY to the plaintiff OR fulfilled the duty AS SPECIFIED before summoning of the act (that led the plaintiff in waiving his right(s)). If not so, and the defendant had performed the duty in a manner that was not specified then the defendant is to held liable and cannot take the defence of free consent.
Exceptions to the principle
- Rescue cases. When the rescued is NOT the defendant, himself When the plaintiff voluntarily encounters a risk to rescue somebody from an imminent danger CREATED BY THE DEFENDANT, he cannot be met with the defence of consent. When the defendant has created a danger to the safety of ‘A’ and he CAN FORESEE that ‘B’ is likely to rescue A out of the danger, The defendant can be held liable by A and B INDEPENDENTLY. The right of the rescuer is an independent right and is NOT derived from those of the victim that s/he rescues Thus, the right of the rescuer are NOT AFFECTED by the defences which the
(It is important to see the connection between the plaintiff’s wrongful act and the harm suffered by him). E.g. If ‘A' and ‘B' proceed to a premises which they intend burglariously to enter, and before they enter B steals A’s watch. A is entitled to sue B for the theft SINCE the theft (by B) is totally UNCONNECTED with the burglary. Contributory Negligence In cases of contributory negligence, the plaintiff is NOT disentitled from claiming compensation BUT the compensation payable to him is REDUCED IN PROPORTION TO HIS OWN FAULT.
4. Inevitable accident
Accident -----> Unexpected Injury (An accident is an unexpected injury) What is an Inevitable accident If the accident could NOT have been, Foreseen and Avoided, in spite of Reasonable care, on defendant's part, The accident is said to be an Inevitable accident. Difference between Inevitable accident and act of God Inevitable accident is SIMILAR (not same) to act of god in the fact that both events are inevitable/ unavoidable. However there is the working of non- natural forces in causing an inevitable accident and not an act of god.
5. Private Defence
The act of application of REASONABLE FORCE to protect one’s own self or property is a self defence. What is a reasonable force? That force which enables the actor (defendant) to be able to just counter the incoming attack from the plaintiff such that is it necessary for his defence, is a reasonable force. Essentials for applicability of Private defence The following essentials need to be met with,
The defendant faces an imminent threat to personal safety/ property from the plaintiff, and The act (of defence) is conducted as the attack continues to take place and not prior or later to it. (E.g. ‘A' would not be justified in using force against ‘B' merely because he thinks that B would attack him some day, OR merely because B had attacked A in the past). Thus both the essentials give rise to URGENCY on the defendant's behalf. However the force employed should not be OUT OF PROPORTION to the urgency of the situation.
6. Mistake
All mistakes arise through incomplete (inadequate) knowledge, i.e. ignorance either of Fact or Law. The law recognises the ignorance of fact to be excusable, however that of law is not. (E.g. A person when wilfully infringing the rights of another cannot take the defence that he was ignorant of the law which he was violating during the infringement. An ignorance of fact is an honest mistake and is excusable in the eyes of law.
7. Necessity
The defence of necessity is applicable in cases wherein the defendant in order to prevent the greater harm had no other choice but to intentionally cause a smaller harm. Distinction between Necessity and Private defence In necessity there is an infliction of harm onto an innocent person whereas in private defence, harm is caused to the plaintiff who is the wrongdoer. Moreover, in necessity the harm (smaller) caused is an intentional one, however in inevitable accident the harm is caused IN SPITE of the best effort to avoid it. Essentials for applicability of the principle The smaller harm caused must be in direct relation to the greater harm, such that if the smaller harm not caused, would eventually lead to the causation
