DEFENCES IN
TORT
GENERAL DEFENCES
1. Volenti non fit 5. Act of God
Injuria / consent
6. Private Defence
2. Illegality
7. Necessity
3. Mistake
8. Statutory Authority
4. Inevitable accident
What is a Defence?
A Defence, if proven, would negate liability
on part of the defendant for his wrongful act
or omission.
The burden lies on the defendant to prove
his defence.
Consent / VOLENTI NON FIT
INJURIA
The maxim basically means “no wrong is
done to one who consents”
‘One who has invited or assented to an act
being done towards him cannot, when he
suffers from it, complain of it as a wrong.’
- Smith v Baker & Sons (1891) AC 325
VOLUNTI NON FIT INJURIA
DEFINITION &
requirements of the
defence
LIMITATIONS
1. Mere knowledge does
not necessarily imply 2. Consent must be
consent freely given
3. Consent not
Employer applicable in rescue 4. Consent of child
Bowater
Smith cases and disabled
Kanagasapathy persons not 100%
Medical cases
ICT v Shatwell Haynes v Harwood valid
Rogers
Cutler v United Dairies
Tan Ah Kau
Passenger Foo Fio Na
Lee Geok Theng
Nettleship
Morris
Sports spectators
Wooldridge
Hall
CONSENT/
VOLENTI NON FIT INJURIA
VNFI is a complete defence that applies
where the Df can prove that the Pf knew of
the risk of harm or injury and knowing so,
has voluntarily submitted or consented to
that risk.
Burden of proof – on Df – to prove that the
Pf had knowledge of the risk and consented
to it freely.
Essential elements;
1. knew of the risk of harm
2. voluntarily submitted or consented –
consent was freely given.
If the Df succeeds, the Pf will not have a
remedy in tort.
VNFI operates in 2 ways;
Consent Voluntary assumption of
Willingness of the Pf of risk
what would amount to a tort Willingness of the Pf to
Eg: Pf allows the doctor to run the risk of injury
inject arm If there is going to be a
Eg: Pf allows man in house breach, the Pf waives his
Eg :Pf allows a punch in a rights
boxing match - (what abt Eg: signing a consent form
biting off ear???) b4 a medical operation
Intentional torts Negligence cases
Limitations to VNFI
1. Mere knowledge does not imply consent
2. Consent must be freely given
3. Consent not applicable in rescue cases
4. Consent of Children and mentally
disabled person – not 100% valid
1. Mere knowledge does not
necessarily imply consent
Not sufficient to prove that if the Pf had
knowledge of the harm, he automatically
consents to it.
Eg 1: Employer and workman
Past – easy for employer to prove defence
of VNFI when his worker was injured in the
course of employment.
Employers would allege that the worker had
knowledge of the risk in the job and
therefore impliedly consented to it.
But this was not so after the case of Smith v
Baker
Case 1 : Smith v Baker
Facts : Worker was aware (had knowledge of the
danger) of his job – both knew
Injured – Stones fell on him from a crane at quarry
Brought action against employer
Employer – tried Defence of VNFI
Court (HOL) held – Mere continuance in the work
does not indicate that the Pf consented to the harm.
Defence not successful
Very important for Df to prove that the Pf
has agreed not to hold the Df liable by
consenting to the breach of duty or waiving
his right of action.
Case 2 Kanagasapathy v Narsingam
Facts: Toddy tapper – complained – mossy
growth that made steps slippery
Injured
Df – pleaded VNFI
Sessions Ct relied on the case of Smith – held
defence not succeesful – employer liable – did
not provide safe system of work
The maxim is Volenti non fit injuria and not
“scienti non fit injuria”
Case 3 : Imperial Chemical Industries
v. Shatwell
Facts: 2 brothers working in a quarry – agreed to
disregard the employers orders - tested
detonators without taking precaution
1 brother injured - explosion
Sued the other brother and employer (VL)
Df – pleaded VNFI
Held : Pf knew the risk of injury and his conduct
showed that he had fully consented to it.
Df not liable (defence successful)
Eg 2 : Passenger cases
Taking a ride in a persons car / motorbike –
do you consent to be injured?
Taking a ride with a friend you know has no
licence,
Or with a drunk person
Or a ‘mat rempit’
Case1 : Lee Geok Theng v
Ngee Tai Hoo
Facts: Pf Pillion rider – of defendant who
used to ride with the front wheels lifted
Pf repeatedly requested him not to
Pf fell and injured – claimed damages
Df – pleaded VNFI
Court : Not sufficient to Pf had Knowledge.
Must show that Pf accepted for himself the
risk of injury
Case 2: Nettleship v Weston
Nettleship (Pf) was asked by Mrs. Weston (Df) to teach her
driving using Mr. Weston’s car. – they were friends
Pf asked for the insurance documents to check and ensured
that the car was under a fully comprehensive insurance
cover.
Pf agreed
Pf Injured – when Df panicked - hit lamp post – Pf sued
Df – pleaded VNFI
HELD : VNFI did not apply – Why ?
Inquiring about the insurance cover indicated that he did not
consent to run the risk of injury
Case 3: Morris v Murray
Pf and Df drinking alcohol all day
Then they decided to go on a flight as the Df had a
pilot licence
After take off, plane crashed and Pf injured.
Does Defence of VNFI apply or does it come under
the exception/limitations ?
COA held that VNFI applied as the PF had
consented to the risk of by flying with a drunken
pilot
Eg 3: Sports spectator cases
When you go to watch a sport do you
consent to be injured?
Formula 1, races…..
Spectators do not consent to the be injured
but may run the risk of injury to himself as a
result of the action of the players
Mere knowledge does not imply consent.
Examine the facts of the case
Wooldridge v Sumner
Facts : Pf was spectator cum and photographer –
went too close to the edge of the arena –
sustained injuries when the horse skidded
Pf injured –sues Df
Df not liable
Held: Spectators at sporting events have
voluntarily assumed the risk of any harm caused
by the players, providing it does not result from
intentional or reckless behaviour of the Df.
Merely because PF went to the dangerous
sport did not mean he accepted the risk of
being injured.
If PF is injured, the organisers (DF) would
have to prove that they had taken all
reasonable means to keep the place free
from danger.
If DF has discharged that duty then he will
not be liable
If DF has not, then he can be found to be
liable.
Because when spectators go to watch
sports, it is always assumed that the
organiser’s have taken sufficient precaution
They go with the assurance that they will
not be injured.
Held : spectators at sporting events have
voluntarily assumed the risk of any harm
caused by the players, providing it does not
result from intentional or reckless behavior
of the Df.
Hall v. Brooklands Auto Racing Club
Spectators injured when 2 cars collided.
Df’s held not liable as they had discharged
their duty in ensuring the stand was free
from danger.
No negligence in this case.
Limitation 2 :
Consent Must Be Freely Given
“A man cannot be said to be truly ‘willing’
unless he is in a position to choose freely,
and the freedom of choice predicates, not
only full knowledge of the circumstances
…. (and) nothing shall interfere with the
freedom of his will”
Per Scott LJ in Bowater v Rowley Regis
Corp
Bowater’s Case
Facts: Worker (Pf) given horse for duty –
knew it was highly excitable and playful. Pf
protested – But since orders ahd been
made he had no choice but to use it.
Injured and sued the Df
Did he give his consent freely?
Df’s defence of VNFI could not apply
Pf did not voluntarily accept the risk
Medical cases for limitation 2–
Rogers v Whitaker
Facts: Pf – disability in right eye – Dr
recommended surgery would definitely improve
the eye – Pf agreed
After surgery, the left eye inflammed and became
totally blind
Pf sued for $808,564
Dr liable (appeals dismissed)
Consent not freely given as Pf was not told of the
risk of the operation
Tan Ah Kau v GOM
Pf signed 2 blank forms that were never
explained to him before the operation.
Dr just told him that without the operation
he would not be able to walk.
Court held Pf needed to understand the
nature and consequences of their consent
because if there is high risk involved
(paralysis), they usually opt out.
Foo Fio Na v Dr Soo Fook Mun &
Hospital Assunta
When the Pf was asked to sign admission
papers she was also signing consent to an
operation without her knowing it.
Then doctor told her that she needed a
minor op but it was in fact a major op to her
spinal cord with risk of paralysis. But she
was not told.
Consent not freely given if the patient is not
told of the risk of the treatment.
Limitation 3
Consent not applicable to rescue cases
In rescue cases it is as though the Pf
deliberately exposes himself to risk of injury
But a defence of VNFI cannot stand
because;
1. Pf is acting under moral and social duty
2. cannot be said to be acting completely
voluntarily. He is a rescuer, not a volunteer
Rescuer is not a volunteer
1.Defendant
– creates a
situation of
danger
Victim in
danger
2. Plaintiff
(RESCUER)
Rationale
A person who creates a situation of danger
must foresee that a rescuer is likely to
come to the assistance of the victims.
Also foreseeable that the rescuer might
suffer injury; therefore should get a remedy
Haynes v Harwood
Df left his horse and carriage on a crowded
street. Horses bolted away when a boy
threw a stone at them
Pf saw some women and children in danger
– He dashed out to stop the horses and
was injured
VNFI could not be raised against him
Court raised 3 important pples of law;
1. Is it foreseeable that a rescuer would try
to save the person in a situation of danger
If yes, the Df owes a duty of care to him
2. Rescuer is acting under social and moral
duty – voluntariness not complete
3. Consent must be given before or at the
time of the conduct but in rescue it is not
However, if there is no real emergency
created be the Df, the defence of VNFI may
be raised.
Cutler v United Dairies
Pf tried to pacify an unruly horse in an open
field where there was no one in danger
Court held that Pf was merely a volunteer
and not a rescuer
Df Pf
Read:
Chadwick v British Railway Board
Baker v TE Hopkins
Baker v T.E. Hopkins
Dr. descended a gas filled well to rescue 2
workmen who had fallen in. He was also
overcome by the fumes and attempts to pull
him out failed as the rope got stuck – he
died
Employer tried to used defence of VNFI -
failed
The employer may however, try to use 2
other methods to disconnect themselves
from liability.
1. Novus actus intervenience – an
intervening act that broke the chain of
causation ( the rope getting stuck)
2. Contributory negligence – an
unreasonable act of rescue
Limitation 4:
Consent of children and mentally
disabled persons not valid
GR – consent for a child must be obtained from
parents / guardian. WHY?
Common law states that age of a child should be
16 and above if his consent is to be accepted by
the court as valid
However, even if the child is below 16, his
consent may be valid, if it can be proved that he is
mature enough to understand the situation
Gillick v West Norfolk
S. 2 Age of Majority Act 1971( Malaysia)
18
Mentally disabled
Consent usually by Guardian or Court
Even w/o consent – if doctor thinks its for
best interest of patient
