Justification In Tort

Dr. C J Rawandale
Professor, Symbiosis Law School, NOIDA
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• Some of these pleas involve the
defendant in denying that he is
liable to the claimant because he
The Basics did nothing wrong to him – [No
Wrong Defences].
• Justifications stand for some
‘general pleas’ that a defendant • Illustration: Volenti Non Fit
in a tort case might be able to Injuria
make to defeat the claim that is
being made against him. • Other pleas take the form of the
defendant arguing he is not liable
to the claimant because, even if
he did something wrong to the
claimant, the claimant still cannot
sue him for reasons of public
policy, or the proper
administration of justice –
[Public Policy Defences].

Dr. C J Rawandale, Professor, Symbiosis Law School, NOIDA 14/11/21

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1. Children

A child who has fulfilled all the

Lack of Capacity requirements for a tort to have
This defence very rarely applies. been committed will have
Three types of person who might committed that tort, whatever their
want to make such a plea can be age.
distinguished.
Jennings v. Rundall (1799)

‘…If an infant commits an assault,

or utter slander, God forbid that he
should not be answerable for it in a
Court of Justice’. – Lord Kenyon
CJ.

Dr. C J Rawandale, Professor, Symbiosis Law School, NOIDA 14/11/21

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• McHale v. Watson (1966)

The seeming harshness of tort law • A 12 year old was being sued in
in subjecting children to the same negligence for throwing a spike
legal requirements as adults is at a wooden post. Unfortunately,
substantially mitigated by the fact the spike cannoned off the post
that in so far as foreseeability of and hit the claimant in the eye.
harm is a prerequisite
•Either to finding a defendant has • The High Court of Australia
committed a tort found that the defendant was
not liable in negligence for the
•Or to holding the defendant liable
claimant’s injury as it would not
for the consequences of a tort that
have been reasonably
he or she has committed,
foreseeable to a typical 12 year
the courts will take into account the old that throwing the spike would
defendant’s age in judging what result in injury to the claimant.
sort of harm was reasonably
foreseeable.

Dr. C J Rawandale, Professor, Symbiosis Law School, NOIDA 14/11/21

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• Morris v. Marsden (1952)

• The defendant suffered from

schizophrenia and attacked the
2. Persons Suffering From claimant, the manager of a hotel at
Mental Illness which the defendant was staying.

Law of Torts does not make any • The court found that the defendant
special exceptions for people knew what he was doing at the
suffering from mental illness. If time he attacked the claimant, but
such a person has fulfilled all the his mental condition meant that he
requirements for committing a tort, did not know what he was doing
then he will be held to have was wrong.
committed a tort.
• He was held liable as he had the
requisite intention to commit that
tort and was held liable to pay the
claimant almost 6000 sterling
pound in damages.

Dr. C J Rawandale, Professor, Symbiosis Law School, NOIDA 14/11/21

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- In respect to torts committed by
its servants or agents;

- In respect of a breach of a duty of

care it owes one of its employees’
3. The Crown as that employees’ employer;

•‘The King can do no wrong’. - In respect of a breach of a duty

attaching to ‘the ownership,
•The Crown Proceedings Act 1947 occupation, use or control of
abrogated this rule to some extent. property’;
Section 2 of the Act provides that
the Crown can be sued in tort, in - In respect of the breach of a
statutory duty which is binding on
the same way that an ordinary people ‘other than the Crown and
person can be: its officers’ and breach of which is
normally actionable in tort.

•Otherwise the old rule of Crown

Immunity from being sued in tort
remains

Dr. C J Rawandale, Professor, Symbiosis Law School, NOIDA 14/11/21

 14/11/21

General Justifications

Dr. C J Rawandale, Professor, Symbiosis Law School, NOIDA 7

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A. Volenti Non Fit Injuria Essentials

• It means ‘ where the suffer is 1. Consent must be free;
willing, no injury is done’.
2. Consent cannot be given to an
• In other words, when a person illegal act;
consents to the infliction of some
harm upon himself, it does not 3. Knowledge of risk is not the
constitute a legal injury and, same thing as consent to run
therefore, is not actionable. the risk.

Dr. C J Rawandale, Professor, Symbiosis Law School, NOIDA 14/11/21

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• Express Consent

• When you send an invitation

1. Consent Must Be Free card and invite somebody to
your house, you cannot sue him
for trespass
Consent to suffer the harm may be • When you submit yourself for
‘express’ or ‘implied’. surgical operation, you cannot
sue the hospital authorities for
It can be inferred from the conduct doing the same.
of the parties.
• Implied Consent

• A player in the games of cricket,

hockey, rugby or boxing is
deemed to be agreeing to any
hurt which may be likely in the
normal course of the game.

Dr. C J Rawandale, Professor, Symbiosis Law School, NOIDA 14/11/21

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• The consent is not free if it has • Imperial Chemical Industries

been obtained by: Ltd. V. Shatwell, (1964) 3 WLR
329 (HL)
• Undue Influence,
• Coercion, • The plaintiff was employed by
• Fraud, the defendant on a barge, and
• Misrepresentation, plaintiff received injuries owing
• Mistake or to the breaking of a defective
• The Like Elements. 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.

Dr. C J Rawandale, Professor, Symbiosis Law School, NOIDA 14/11/21

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• Hall v. Brooklands Auto- • It was held that the plaintiff

Racing Club, (1933) 1 KB 205 impliedly took the risk of such
injury, the danger being inherent
in the sport which any spectator
• The plaintiff was a spectator at a could foresee, the defendant
motor car race being held at was not liable.
Brooklands on a track owned by
the defendant company. • Arthur v. Anker, [1996] 3 All ER
783, [1997] QB 564
• During the race, there was
collision between two cars, one • A motorist, who parked his car
of which was thrown among the on his private land after having
spectators, thereby injuring the been given notice that the
plaintiff. landowner objected and might
clamp his wheels, was deemed
to have consented when this
occurred.

Dr. C J Rawandale, Professor, Symbiosis Law School, NOIDA 14/11/21

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• Vine v. London Borough of • Murray v. Harringay Arena Ltd

Waltham Forest [2000] 4 All ER [1951] 2 All ER 320
169

• A car driver felt sick, turned • The defendants were held not
hurriedly into a private car park, liable where a young spectator
got out and was sick a shot was struck in the eye by a
distance away. She returned to hockey puck.
find the car wheels clamped.
There was a warning notice, but
it was partly obscured by
another vehicle.

• She recovered damages

because she had not consented
to the risk of clamping.

Dr. C J Rawandale, Professor, Symbiosis Law School, NOIDA 14/11/21

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Game of Cricket:
2. Consent cannot be given Raman Lamba had been hit on the
to an illegal act temple while fielding, without
helmet, at short leg. The ball hit
• No consent can legalise an him so hard that the ball
unlawful act or an act which is rebounded to Khaled Mashud, the
prohibited by law. wicket keeper. He succumbed to
the injuries on February 23, 1998.
• Illustration:
On Alcwyn Jenkins failed to see
• Fighting with naked fists, duel the ball hurtling towards the
with sharp swords are unlawful stumps from the boundary and
died when it hit him on the head.
and even though the parties The South Wales Cricket
may have consented, yet the Association Honorary Chairman
law will permit an action at the Neil Hobbs, a friend of Mr. Jenkins
instance of the plaintiff. said: …Umpires do get hit by the
ball occasionally, but the chances
of a fatality must be less than one
in a million. No one can believe it.

Dr. C J Rawandale, Professor, Symbiosis Law School, NOIDA 14/11/21

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3. Knowledge of risk is not
the same thing as consent • Smith v. Charles Baker & Co,
[1891] AC 325
to run the risk
• 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

that 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 held that

defendants were liable.

Dr. C J Rawandale, Professor, Symbiosis Law School, NOIDA 14/11/21

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• The defendants operated a railway
which passed through a tunnel. For
many years, local residents walked
Slater v. Clay Cross Co. Ltd. through the tunnel when she was hit
(1956) by one of the defendant’s train and
was injured.
• The claimant sued the defendants,
claiming that the defendants’ driver
had been negligent in the way he had
driven the train; he had not kept a
proper look-out and so on.
• The defendant argued that the
claimant’s claim should be dismissed
on the ground that when the claimant
walked through the tunnel she had
voluntarily taken a risk that she would
be hit by an oncoming train.
• The Court of Appeal held that when
the claimant walked through the
tunnel she did not willingly take a risk
that a train driver would negligently
run into her.

Dr. C J Rawandale, Professor, Symbiosis Law School, NOIDA 14/11/21

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• Doctrine of assumption of risk
does not apply where plaintiff
has under an exigency caused
Exception: Rescue Cases 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.

Dr. C J Rawandale, Professor, Symbiosis Law School, NOIDA 14/11/21

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Haynes v. Harwood, (1935) • The defendant negligently left his
1 KB 146 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, and The
defence of Volenti non fit Injuria was
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.

Dr. C J Rawandale, Professor, Symbiosis Law School, NOIDA 14/11/21

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Dr. J N Srivastava v. Ram
Bihari Lal and Others, AIR • The doctor observed after
opening the abdomen cavity that
1982 M.P. 132
patient’s appendix was all right
but the operation of Gall-bladder
was needful. He proceeded with
the operation- later on the
patient died.

• It was not possible to seek the

consent for the Gall-bladder
operation.

• In such circumstances doctor

was not responsible.

Dr. C J Rawandale, Professor, Symbiosis Law School, NOIDA 14/11/21

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• A well was filled with poisonous fumes
Baker v. T.E. Hokins and of a petrol driven pump on account of
Sons, (1959) 1 WLR 966 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 save 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.

Dr. C J Rawandale, Professor, Symbiosis Law School, NOIDA 14/11/21

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Volenti Non Fit Injuria Contributory Negligence

• The plaintiff is always aware of • The plaintiff is not aware of the
the nature and extent of the nature and extent of the danger
danger which he encounters, which he encounters
while it is not so in case of
Contributory negligence. • Partial Defence: the claim of the
plaintiffs is reduced to the extent
• A complete defence the claimant himself was to
blame for the loss

Dr. C J Rawandale, Professor, Symbiosis Law School, NOIDA 14/11/21

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B. Act Of God | Vis Major

“Act of God - circumstances which Illustration:
no human foresight can provide
against any of which human • The Falling Of A Tree,
prudence is not bound to • A Flash Of Lightening,
recognise the possibility, and which • A Tornado,
when they do occur, therefore, are • Storms,
calamities that do not involve the • Tempests,
obligation of paying for the
• Tides,
consequences that result from
• Volcanic Eruptions,
them”.
• A Flood,
• Earthquake

Dr. C J Rawandale, Professor, Symbiosis Law School, NOIDA 14/11/21

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Essentials
1. There must be working of • Greencock Corporation v.
natural forces without any Caledonian Railway Co. (1917)
intervention from human
agency, and • This defence is available in
circumstances which no human
2. The occurrence must be foresight can provide against,
extraordinary and not one and which human prudence is
which could be anticipated and not bound to recognise the
reasonably guarded against. possibility.

Dr. C J Rawandale, Professor, Symbiosis Law School, NOIDA 14/11/21

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Nicholas v. Marshland, • The defendant constructed three

artificial lakes which were fed by
(1875) 2 KB 297
a natural stream. The lakes were
well constructed and adequate
in all normal circumstances.

• An extraordinary rainfall burst

the banks of artificial lakes on
the defendant s property and the
floodwater destroyed a number
of bridges owned by the county
council.

• It was held that the defendant

was not negligent and the
accident was due to an act of
God.

Dr. C J Rawandale, Professor, Symbiosis Law School, NOIDA 14/11/21

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• The defendants constructed a concrete
paddling pool for children in the bed of
Greenock Cop v. Caledonian the stream and to do so they had to
Rly, [1917] AC 556 alter the course of the stream and
obstruct the natural flow of the water.

• Owing to the rainfall of extraordinary

violence, the stream overflowed at the
pond, and a great volume of water,
which would normally have been carried
off by the stream, poured down a public
street into the town and caused
damage to the claimants’ property.

• The House of Lords held that the

rainfall was not an act of god and the
defendants were liable. It was their duty
‘so to work as to make proprietors or
occupiers on a lower level as secure
against injury as they would have been
had nature not been interfered with”.

Dr. C J Rawandale, Professor, Symbiosis Law School, NOIDA 14/11/21

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C. Inevitable Accident
• An inevitable accident is that • Krishna Patra v. Orissa State
which could not possibly, be Electricity Board, AIR 1997
prevented by the exercise of Orissa 109
ordinary care, caution and skill.
• “Inevitable accident as an event
which happens not only without
the concurrence of the will of the
man, but in spite of all efforts on
his part to prevent it” – Orissa
High Court.

Dr. C J Rawandale, Professor, Symbiosis Law School, NOIDA 14/11/21

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Stanley v. Powell, • The plaintiff, who was engaged

in carrying cartridges and game
(1891) 1 QB 86
for the party, was hit by a shot
fired by the defendant while on
an organised pheasant shoot
when the shot glanced off a tree
before hitting the plaintiff.

• It was held that the defendant

was not liable.

Dr. C J Rawandale, Professor, Symbiosis Law School, NOIDA 14/11/21

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National Coal Board v. • A colliery company preceded the

National Board, had buried an
Evans, (1951) 2 KB 861 electric cable in the county
council s land.

• The county council s contractor

damaged the cable while
excavating land and the fact that
electric cable was buried under
the land was not known to the
council or contractor.

• It was held that in these

circumstances, neither the
council nor the contractor would
be liable for damage of cable
and the defence of inevitable
accident was allowed.

Dr. C J Rawandale, Professor, Symbiosis Law School, NOIDA 14/11/21

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D. Necessity
• Necessity knows no law. • Illustration:

• The exception of necessity is • One arresting and restricting the

based on the maxim Salus movement of the drunken
person who is likely to cause
Populi Suprema Lex i.e. the danger to the people at large,
welfare of the people is the can successfully plead necessity
Supreme Law. as a defence.

• This is intentional damage to • However, one who puts live

prevent even greater destruction electric wires on his land to stop
or in defence of the realm. the trespassers cannot
successfully avail this defence if
he does not give notice, warning
of such dangerous thing.
Dr. C J Rawandale, Professor, Symbiosis Law School, NOIDA 14/11/21
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• A fire broke out on A’s land. A’s

servants were busy in
Cope v. Sharpe, (1912) extinguishing the fire, the
gamekeeper of C (who had
shooting rights over A’s land)
set fire to some strips of heather
extinguished between the fire
and some nesting peasants of C,
in a shot, while the fire was by
A’s servants.

• A sued the gamekeeper for

trespass.

• The Court held that the

gamekeeper was not liable for
there was a real and imminent
danger to the game which
justified the action taken by the
defendant.

Dr. C J Rawandale, Professor, Symbiosis Law School, NOIDA 14/11/21

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• The Supreme Court held that

under the law of tort necessity
Limits of The Defence Of
is a plausible defence, which
Necessity enables a person to escape
liability on the ground that the
acts complained of are
Olga Tellis v. Bombay
necessary to prevent greater
Municipal corporation, damage, inter alia, to himself.
(1985) 3 SCC 545
• So the trespass on some
property cannot be justified
always on the basis of necessity.

• The defence is available if the

act complained of was
reasonably demanded by the
danger or emergency .

Dr. C J Rawandale, Professor, Symbiosis Law School, NOIDA 14/11/21

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• Nothing is an offence merely by

Section 81, Indian Penal Code reason of the being done with
the knowledge that it is likely to
cause harm, if it be done without
any criminal intention to cause
harm, and in good faith for the
purpose of preventing or
avoiding other harm to person or
property.

• Explanation: It is a question of
fact in such a case whether the
harm to be prevented or avoided
was of such a nature and so
imminent as to justify or excuse
the risk of doing the act with the
knowledge that it was likely to
cause harm.

Dr. C J Rawandale, Professor, Symbiosis Law School, NOIDA 14/11/21

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Dhania Daji, • A person placed poison in his

toddy pots, knowing that if taken
(1868) 5 BHC (CrC) 59 by a human being it would
cause injury, but with the
intention of thereby detecting an
unknown thief who was in the
habit of stealing the toddy from
his pots. The toddy was drunk
by and caused injury to some
soldiers who purchased it from
an unknown vendor.

• It was held that the person was

guilty under section 328
(causing hurt by means of
poison or any stupefying,
intoxicating or unwholesome
drug or other thing with intent to
commit an offence), and that
section 81 did not apply.

Dr. C J Rawandale, Professor, Symbiosis Law School, NOIDA 14/11/21

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E. Private Defence Indian Penal Code

• No action is maintainable for Section 97 authorises one to
damage done in the exercise of exercise right of private defence to
one s right of private defence of protect one s person and property
person or property provided and also that of other person,
that the force employed for the subject to restriction as placed
purpose is not out of proportion under section 99 that there is no
to the harm apprehended. right of private defence against any
act which does not reasonably
cause the apprehension of death
or of grievous hurt, if done…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.

Dr. C J Rawandale, Professor, Symbiosis Law School, NOIDA 14/11/21

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Turner v. Jagmohan Singh, • A vicious stallion repeatedly

attacked a pair of mares belong
ILR (1905) 27 All. 531 to the carriages in which the
defendant was being driven, and
finally came into the defendant s
compound in spite of attempts
made to prevent him, and
continued his attacks until the
defendant getting hold of a
spear inflicted somewhat severe
wound on the left hind quarter of
the stallion.

• After this the stallion made off,

but subsequently died from the
effects of the wound.

• It was held that the defendant s

action was justifiable and the
owner of the stallion was not
entitled to any damages.

Dr. C J Rawandale, Professor, Symbiosis Law School, NOIDA 14/11/21

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Morris v. Nugent, • The defendant was passing by

the plaintiff ’ s house. The
(1836) 7 C & P 572
plaintiff’s dog ran out, and bit
the defendant.

• On the defendant ’ s turning

round, raising his gun, the dog
ran away and he shot the dog as
it was running away.

• It was held that the defendant

was not justified in doing so. To
justify the shooting of the dog,
he must be actually attacking
the party at the time.

Dr. C J Rawandale, Professor, Symbiosis Law School, NOIDA 14/11/21

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F. Statutory Authority
• Statutory authority means “ an • The basic philosophy behind the
authority or power given by law statutory immunity is that the
to do certain acts”. lesser private right must yield to
the greater public interest.
• If a tort is committed in the
course of any such act, the
injured person will have no claim
unless the act has been done
negligently

Dr. C J Rawandale, Professor, Symbiosis Law School, NOIDA 14/11/21

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Absolute Authority Conditional Authority

• If absolute, then the authority is • The public authority has the power
not liable provided it has acted to act but is under no duty to do so,
reasonably and there is no and it may carry out the relevant
alternative course of action. act only if there is no interference
with the rights of others.
• Illustration: • No one can remove property out of
one’s possession, however traffic
• To acquire land for the laying police can remove vehicle which is
down of the railway track; the obstructing the traffic or is parked
noise and vibration will be in no parking zone.
caused by running the train on it.

Dr. C J Rawandale, Professor, Symbiosis Law School, NOIDA 14/11/21

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Department of Transport v. • “Where a statutory authority is

under a mandatory obligation to
NW Water Authority [1984]
supply a service, whether with a
AC 336 savings or nuisance clause (that
nothing shall exonerate it from
proceedings for nuisance) or
whether without such a clause,
the authority is under no liability
for anything expressly required
by statute to be done, or
reasonably incidental to that
requirement, if it was done
without negligence.”

Dr. C J Rawandale, Professor, Symbiosis Law School, NOIDA 14/11/21

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• “Where the statutory authority is

merely permissible, with no
Dunne v North Western Gas
clause imposing liability for
Board [1964] QB 806 nuisance, the authority is not
liable for doing what the statute
authorises, provided it is not
negligent; but it is liable when
there is a clause imposing
liability for nuisance, even if it is
not negligent.”

Dr. C J Rawandale, Professor, Symbiosis Law School, NOIDA 14/11/21

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Ram Gulam v. Government • Certain ornaments were stolen
of the United Province, from the house of the plaintiff.
(1951) 1 All. 135 On a search made by the police
they were recovered from
another house and produced as
exhibits at the trial of those who
were prosecuted in connection
with the theft. Thereafter they
were kept in the Collectorate
godown from where they were
again stolen and could not be
traced.
• The Plaintiff sued the
Government of the United
Provinces for recovery of the
ornaments, and in the
alternative for the recovery of
their price.
• It was held that the Government
was not liable as the alleged
tortuous act was performed in
discharge of an obligation
imposed by law.

Dr. C J Rawandale, Professor, Symbiosis Law School, NOIDA 14/11/21

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Vaughan v. Taff Vole Rly.

Co. (1860) 5 H&N 679

• The defendants were not liable

for fires caused by sparks from
engines since they were obliged
to operate a railway and had
done so with proper care.

Dr. C J Rawandale, Professor, Symbiosis Law School, NOIDA 14/11/21

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Metropolitan Asylum District
Board v. Hill, (1889) LR 4 PC • A local authority being empowered by
a statute to erect a small-pox hospital
628
was restrained from erecting it at a
place where it was likely to prove
injurious to the residents of the
locality.

• The authority to construct a hospital

was construed as impliedly
conditional only, i.e. to erect the
hospital provided that the hospital
authorities selected a site where no
injurious results were likely to be
caused to others.

Dr. C J Rawandale, Professor, Symbiosis Law School, NOIDA 14/11/21

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Fisher v. Ruislip-Northwood • The local authority had, by

statute, been given power to
UDC, (1945) erect air-raid shelters on the
highway. In the black-out, Fisher
drove his motor cycle into such a
shelter, and was injured. When
sued for the tort of public
nuisance, the Council pleaded
that it had statutory authority to
put up the shelter.

• The defence failed, because the

Council could, even in the black-
out, have put up small, shaded
warning lights for motorists. The
Council only had statutory
authority on condition that it was
exercised with care for the
safety of others.

Dr. C J Rawandale, Professor, Symbiosis Law School, NOIDA 14/11/21

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G. Parental Or Quasi H. Judicial Or Quasi

Parental Authority Judicial Act

Dr. C J Rawandale, Professor, Symbiosis Law School, NOIDA 14/11/21

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I. Mistake Exceptions
• The general rule is that mistake, • Malicious Prosecution: If a
whether of the law or of fact, is police officer or private
no defence in tort. prosecutor commences a
prosecution under the mistaken
belief that the plaintiff is guilty
• The maxim ignorantia legis but the plaintiff turns out to be
non excusat i.e. ignorance of innocent, this will provide a
the law is no excuse, applies. defence to an action for
malicious prosecution.
• Illustration: • False Imprisonment: If a police
officer, without a warrant, arrests
• A trespass to land is actionable the plaintiff in the mistaken belief
per se. so a trespass on to land of reasonable suspicion that a
which the trespasser mistakenly person has committed an
but honestly believes belongs to arrestable offence, the police
him, or he believes he has right officer is not liable for false
imprisonment. The police officer
of entry to, can be liable for has to show he had grounds for
trespass. his beliefs.
Dr. C J Rawandale, Professor, Symbiosis Law School, NOIDA 14/11/21
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J. Contributory Negligence
| Plaintiff’s Own Default
• This defence is normally raised • In England, the Law Reform
to actions for negligence. (Contributory Negligence) Act,
1945 provides that in such
• It arises when damage is cases the court shall reduce the
suffered partly by the fault of the damages by an amount
defendant and partly by the fault proportionate to the claimant’s
of the claimant. share of responsibility.

• The defendant, therefore,

attempts to reduce the damages
by proving that the claimant was
himself partly responsible.

Dr. C J Rawandale, Professor, Symbiosis Law School, NOIDA 14/11/21

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• Mrs. Sayers found herself

locked in a public lavatory.
Sayers v. Harlow (1958)
Unable to summon help, she
tried to climb out over the
top of the door. She found
this impossible and, when
climbing back down, allowed
her weight to rest on the
toilet roll which ‘true to its
mechanical requirement,
rotated. Mrs. Sayers fell and
was injured.

• It was held that 75% of her

injury was the fault of the
Council for providing a
defective lock which
jammed, and 25% was her
own fault.

Dr. C J Rawandale, Professor, Symbiosis Law School, NOIDA 14/11/21

 48

• Stapley v. Gypsum Mines Ltd • Froom v. Butcher (1976)

(1953)
• A front seat passenger injured in
• Two miners who worked, in a car accident had his damage
breach of instructions, under a reduced by 25% because he
dangerous roof were held 80% had not worn a seat belt.
contributory negligent.

Dr. C J Rawandale, Professor, Symbiosis Law School, NOIDA 14/11/21

 49

Questions, If Any?

Thank You!

Dr. C J Rawandale, Professor, Symbiosis Law School, NOIDA 14/11/21