The Law of tort has evolved from its existence.

The Law of tort revolves around damages which means

punishments in torts are usually in the form of liquidated damages. To protect their interest one can apply the
relevant provisions and sometimes One can counterclaim compensation based on certain principles. These
counterclaims are known as defenses. There are many defenses in the law of tort. Some of these are
negligence, necessity, inevitable accidents, etc
Whenever a case is brought against the defendant for the commission of a tort and all the essential elements of
that wrong are present, the defendant would be held liable for the same. Even in such cases, the defendant can
avoid his liability by taking the plea of the defenses available under the law of torts.
Some defences are particularly relating to some offences. In the case of defamation, the defences available are
fair comment, privileges and justification, etc.
Let’s see what are these defences available to a person under the law of tort and how can it be pleaded along
with some of the important cases.
When a plaintiff brings an action against the defendant for a tort committed by him, he will be held liable for it, if there
exists all the essential ingredients which are required for that wrong. But there are some defences available to him using
which he can absolve himself from the liability arising out of the wrong committed. These are known as ‘General defences’
in the law of tort.
Some examples of the defence are:
When you yourself call somebody to your house you cannot sue your guests for trespass;
If you have agreed to a surgical operation then you cannot sue the surgeon for it; and
If you agree to the publication of something you were aware of, then you cannot sue him for defamation.
A player in the games is deemed to be ready to suffer any harm in the course of the game.
A spectator in the game of cricket will not be allowed to claim compensation for any damages suffered
•Consent, volenti non fit injuria
•When plaintiff is the wrongdoer,
•Inevitable accident,
•Act of God,
•Act in relation to Private
Defence
•Necessity
•Mistake
•Act done in respect to
statutory authority
•Consent, volenti non fit injuria
•Volenti non fit injuria is an often-quoted form of the legal maxim formulated by the
Roman jurist Ulpian which reads in original: Nulla iniuria est, quæ in volentem fiat. It is
widely regarded as a defence for the commission of a Tort around the world. It is found
in the English Common Law System, the Scottish Law, the law in The United States
and in Canada.
•Volenti non fit injuria protects the practitioner from liability for an Act causing injury
to a patient, which falls within the express or lulled consent of the plaintiff. The one
who voluntarily agrees to suffer harm is not allowed
to complain for that and, one’s consent is a good defence against oneself. This is so
because the harm voluntarily suffered does not constitute the legal injury. No man can
enforce a right, which he has voluntarily waived or abandoned.

The very first defence that comes under the General Defences in Torts Law is Volenti
Non Fit Injuria,which is also known as defence for consent. This principle has been
summarized in the latin maxim, VOLENTI NON FIT INJURIA, which is translated as
Voluntarily Suffered. The term Volenti Non Fit Injuria is a Latin maxim which refers to
a willing person, an injury is not done. It is a common law doctrine, according to this
doctrine the person who voluntarily gives consent for any harm to suffer would not be
liable to claim any damages for the same and this consent serves as a good defence
against the plaintiff.
The person who himself voluntarily waived or abandoned his right cannot have any claim over it. Provided this
doctrine is only applicable to the extent that a normally prudent person would have assumed to have suffered the risk.
From the plaintiff’s point of view, it can also be termed as ‘consent to run a risk’. In this context, the defendant can run out of risk
and can prevent himself from the tort liability arising out of the first case. That is if, for example, consent given to a person for
visiting his house can save him from the trespass to land

In Hall v. Brooklands Auto Racing Club, the plaintiff was a spectator of a car racing event and the track on which the race was
going on belonged to the defendant. During the race, two cars collided and out of which one was thrown among the people who
were watching the race. The plaintiff was injured. The court held that the plaintiff knowingly undertook the risk of watching the
race. It is a type of injury which could be foreseen by anyone watching the event. The defendant was not liable in this case

Free consent
Consent should be expressed or implied
Scienti non fit injuria/ knowledge of risk
Consent to an illegal contract
Exceptions
Consent to an illegal act
In rescue case
Negligence
Statutory Duty
For taking the defence of Volenti Non Fit Injuria it is necessary that:
a. The consent must be free
It is necessary that for pleading the defence of Volenti Non Fit Injuria the consent so obtained by the defendant must be
free that is it should not be obtained by coercion fraud or through any other means. If such methods are used to obtain the
consent the defence would fail in getting the relief. Though it is also necessary that the act should only be done to the
extent till the permission is granted exceeding the limit would also lead for non-application of relief. For example, if a
postman is allowed to enter the house for delivering the dak, but if he went inside the house without permission he would
be liable for trespass. Similarly, if the invited guest is asked to sit in the drawing room, he without any permission enters
the bedroom he can be liable for trespass.
As in the case of Lakshmi Rajan vs. Malar Hospital Ltd. III1998 CPJ 586 the women of aged 40 noticed the lump in her
breast. The lump has no effect on her uterus, but during surgery, her uterus was removed without any justification. It was
held that the hospital authorities were liable for deficiency in service. It was also held that the patient’s consent for
operation did not imply her consent for removal of the uterus.
The Risk must be known to the Plaintiff: When the plaintiff has the knowledge that the act is going to cause harm or
loss and in spite of that accepts to do it, agreeing to suffer the injury, then the defendant will not be liable for such an
act. But only having the knowledge about such a risk is not enough for the application of this maxim. However, having
knowledge of such a risk is not enough for the application of this defence, the principle of Scienti non-fit injuria is
recognised, which means that mere knowledge only constitutes a partial defence and does not amount to consenting
to the risk
In the case Morris v Murray, 1990 2 QB 6; [1991] 2 WLR 195; the plaintiff and the defendant had been
drinking together, after which they boarded a flight on the plane which was being flown by the defendant
himself. The plane crashed and the plaintiff was injured. Here, the Judge stated that the Defendant could
rely on the defence of volenti non fit injuria as knowledge could be easily inferred from the facts
, the plaintiff chose
to travel in Defendant's plane, even though he knew that The defendant was drunk. The plane crashed,
causing injuries to him. The defence of volenti non-fit Injuria is applied when there is “complete
knowledge of the danger” and proof of the person consenting to it. Although knowledge of the danger
can also be used as to be evidence of consent to suffering it. Here in this case, the plaintiff knew that his
friend was drunk and still got in a plane with this knowledge and thus, the court held that the defendant
could not be held liable, and getting in the plane with him was consent enough for the maxim to be
applicable.
Wooldridge v. Sumner, [1963] 2 QB 43
The plaintiff, Mr Wooldridge, who was a photographer at a horse race, was injured by the horse belonging to the
defendant, Sumner, which was ridden in a competition by Ron Holladay, who was a skilled and experienced horseman.
Judgment
The Court of Appeal held that Sumner owed no duty of care to Wooldridge in this case. As a spectator, Wooldridge
accepted the risks involved in a horserace he came to watch. As a reasonable participant in the race, which is a fast and
competitive sport, the horseman was expected to concentrate on the race and not on the spectator. In the course of a fast
moving competition such as this one, he could be expected to make errors of judgment. As long as the damage was not
caused recklessly or deliberately, the participant in a race could not be held liable for the spectators injuries because he
was not negligent, i.e. not in breach of his duty.
2. Consent should not be obtained by fraud:
It is necessary that the consent so obtained by fraud would be void and the defence would not be available under such
circumstances. As in the case of R. vs. WilliamsThe defendant was a singing coach and he had convinced a 16-year-old
student to have sexual intercourse with him by telling her that it will help her in improving her voice and singing. The
defendant was held liable by the Court because the consent was obtained by fraud.
Whereas in the other case of R. vs. Clarence in this case, it was held that a husband was not liable for an offence when the
husband failed to make her aware of his condition. Under the first case the girl was not knowing the nature of activities being
done, she was under the misconception of the surgical operation was being done and therefore the accused was liable and the
defence was not available for him. Whereas in the second case the wife knew the nature of the act being done regardless that
she didn’t know its consequences. Since the consent was given knowingly and without any fraud, the husband was able to save
himself.
c. Mere knowledge does not imply assent:
For the successful defence of the doctrine it is necessary that
The plaintiff know that the risk is there
He, knowing the same, agreed to suffer the harm
Mere completion of the first condition doesn’t imply the successful defence as the knowledge doesn’t imply for agreement
suffer the risk involved.
As in the case of Bowater vs. Rowley Regis Corporation the plaintiff was a cart driver who was asked by the defendant’s
foreman to drive a horse which they both knew was liable to bolt. The plaintiff protested but later took out the horse in
obedience to the order. The horse was bolted and the plaintiff was injured thereby. It was held that the defence of Volenti Non
Fit Injuria can’t be applied as because the first it was master-servant relationship where the master knew the and have
knowledge about the risk involved in the act, and also the cart driver didn’t give consent freely as he has to follow his masters
order and therefore the plaintiff’s claim was granted, and the defence failed.
Negligence of the defendant
To apply the doctrine successfully it is further necessary that the act must be done to such an extent to which the
consent has been given. As in the case of Slater vs. Clay Cross Co. Ltd, 1956 2 ALL E.R. 625 in this case, the
plaintiff was injured by the train driver by the defendant’s company, while she was walking along a narrow tunnel on
a railway track which was owned and occupied by the defendant’s company. The plaintiff was having the knowledge
of the same, and so does the company owner that the tunnel was used by the public and therefore it was instructed to
the driver of the trains to give a whistle before passing from that tunnel. Due to the negligence of the train driver,
who have forgotten to give whistle the lady got injured. It was held that the lady took the risk of passing to that track,
but she doesn’t give the consent to the risk of the driver’s negligence.

Limitation:
The scope of Doctrine is curtailed in Rescue cases and unfair contract terms Act, 1977
Inspite of the fact that the plaintiff has consented to suffer the harm, he may still be entitled to his action against the
defendant in these exceptional cases

Rescue cases form an exception in the applicability of the doctrine.

When the plaintiff voluntarily jumps into the risk for saving somebody else, happened because of the wrongful act of
the defendant he will not be eligible to find shelter under the doctrine Volenti Non Fit Injuria.
The Latin terminology of novus actus interveniens or nova
causa interveniens is characterised as the action of an
independent third party.
if the rule of novus actus interveniens is strictly applied,
what happens when the wrongdoer has by his negligence
caused danger to someone or something, and injury was
caused to a third party in his course of rescuing that someone
or something? Does the act of rescue amount to an
intervening act so that the wrongdoer is absolved from
liability?
Duty Owed to Rescuers
Where a person, by his negligence, creates a situation that
calls for rescue, he is subject to two duties – a primary duty
to the imperiled victim, and a secondary duty to the rescuer.
The rationale behind this is simple: although the wrongdoer
might owe no duty of care to the rescuer in the first place, the
wrongdoer’s negligence has created a dangerous situation
which invites the rescue and the wrongdoer ought, as a
reasonable man, to have foreseen the likelihood of
intervention by a rescuer.
As in the case of Haynes vs. Harwood, [1935] 1 KB 146
here the defendant’s servant brought and left two-horse van in the town near a police station unattended in the street. to do some
other work . Nearby there were some children playing and A boy from one of them threw a stone towards the horse and horse
bolted as a result the horse started running here and there. This created danger to women and children in the street living nearby.
A policeman saw the horses were hassled by the children and dived into the scene to prevent the danger. Though he succeeded
but was severely injured in doing so. Defendant was held liable, even when the defendant pleaded that he was just a policeman
and was doing his duty. It was held that the plaintiff who was a police officer went to stop the horses and in doing so he got
injured and brought a case against the owner for damages. so the defendant liable because the defence of volenti non-fit injuria
does not apply in a rescue case.
When the defendant by his negligence has created danger to the safety of some A and he can foresee that somebody else, say B,
is likely to rescue A out of danger, the defendant is liable to both A and B. The right of the rescuer is not affected by the defences
which the defendant may be able to plead against victim. The right of the rescuer is an independent right and is not derived from
that of the victim. The victim may have been guilty of contributory negligence or his right may be excluded by contractual
stipulation but still the rescuer can sue
In the case of Videan v British Transport Commission [1963] 2 Q.B. 650, a station master was killed while trying to rescue his
child, who had walked onto the defendant’s railway lines, from being run over by a motor-trolley driven by an employee of the
defendant. In deciding whether the station master’s widow can recover compensation on behalf of the station master from the
defendant, the Court found that the trolley driver was negligent in not keeping a proper look-out and travelling too fast. The
Court also found that his negligent driving had caused an emergency which invited rescue. Therefore, the Court ruled that station
master’s act to rescue his child was not an intervening act and thus the defendant was vicariously liable for its employee’s
negligence.
Baker vs. T.E. Hopkins & son in this case, due to the fault on the defendant’s side, the well was filled with the poisonous fumes
of the petrol driven pump. Two of his workmen were to overcome by those fumes. Dr Baker was called to save them, he was also
told about the risk involved in the same.
Even after that, he jumped into the well knowingly of the danger involved. But soon after he was driven out from there although,
on the way to the hospital he died. The widow of Dr Baker sued the workman’s employer for compensation. It was held that the
defendant was liable for the compensation, as it was the rescue case. Even though he voluntarily agreed to take the risk, the
plaintiff was liable to compensation.
Yet another case of Smith vs. Baker the plaintiff was an employee working for the defendant for cutting the rock through a drill.
The working of his was at the same place from where the stones were being conveyed from one place to another. During his
working hours, the stone felt over his head from which the plaintiff got injured. As a result, he files a suit against the defendant.
The defendant took the plea that the plaintiff was aware of the risk involved in the working and therefore pleaded the defence of
volenti non fit injuria. Against which the judgment was given by the House of Lords that as there was only knowledge of the risk
but not the assumption of it and therefore the defence failed and the claim was maintained
Section 2 of unfair contracts terms act-Negligence liability.
(1)A person cannot by reference to any contract term or to a notice given to persons generally or to particular persons exclude or
restrict his liability for death or personal injury resulting from negligence.
(2)In the case of other loss or damage, a person cannot so exclude or restrict his liability for negligence except in so far as the term
or notice satisfies the requirement of reasonableness.
(3)Where a contract term or notice purports to exclude or restrict liability for negligence of a person’s agreement to or awareness
of it is not of itself to be taken as indicating his voluntary acceptance of any risk.
Distinguish between Volenti Non Fit Injuria and contributory negligence.
Difference between the two is as follows:
1.Volenti Non Fit Injuria is a complete defence, while contributory negligence is a defence based part of the fault of the defendant.
2.In contributory negligence plaintiff as well as the defendant both is negligent while in volenti non fit injuria the plaintiff himself
gives consent for the harm to suffer.
3.In case of volenti non fit injuria the plaintiff is aware of the act and the harm being suffered while in contributory negligence he
did not have any knowledge about the act although he ought to have known it
An act of God is described in Tennant v Earl of Glasgow (1864 2 M (HL) 22) as: "Circumstances which no human foresight
can provide against, and of which human prudence is not bound to recognize the possibility, and which when they do occur,
therefore, are calamities that do not involve the obligation of paying for the consequences that may result from them.“
Pollocks define it as – “An operation of natural forces so unexpected to anticipate it.“
Salmond defines it as – “Act of God are those that a man cannot prevent by exercising reasonable caution. Such occurrences
are the consequence of natural processes and are incompatible with human intervention”.
Lord Mansfield defines it as – “An act of god is something in opposition to the act of man.”
Act of God or Vis Major
An act of God is a general defense used in cases of torts when an event on which the defendant has no control over,
occurances and the damage is caused by the forces of nature. In those cases, the defendant will not be liable in law of
tort for such inadvertent damage. Act of God defined as circumstances which no human foresight can provide against
any of which human prudence is not bound to recognize the possibility, and which when they do occur, thus the
calamities that do not involve the obligation of paying for the consequences that result from them
Act Of God Or Vis Major
The ‘Act of God' defence is based on the tort law principle that liability must be founded on a fault and that a person
cannot be penalized where the fault is that of a 'vis major' where all precautions were taken, and a casualty still
occurred.

Vis major is defined, as A loss that results immediately from a natural cause without the intervention of man, and could
not have been prevented by the exercise of prudence, diligence, and care.

According to Salmond an act of God includes those acts which a man cannot avoid by taking reasonable care. Such
accidents are the result of natural forces and are incoherent with the agency of man.

Thus it is an act which is due to natural causes directly and exclusively without human intervention, and that it could
not have been prevented by any amount of foresight and pains and care reasonably to have been expected from him i.e.
the defendant. According to Lord Mansfield, act of god is defines as it is something in opposition to the act of man.
Essentials
The act should result from a natural force.
No human intervention.
Extraordinary in nature
Elements Of Act Of God
Natural Causes:
An act of God is an uncommon, extraordinary and unforeseen manifestation of the forces of nature, or a misfortune or
accident arising from inevitable necessity. An act of god cannot prevent by reasonable human foresight and care.

The effect of ordinary causes may be foreseen and avoided by the exercise of human care. For example, the fact that rain will
leak through a defective roof is foreseeable by an ordinary man. In case of foreseeable causes, failure to take the necessary
precautions constitutes negligence, and the party injured in the accident may be entitled to damages. An act of God, therefore,
is so extraordinary and devoid of human agency that reasonable care would not avoid the consequences. Therefore in such
cases the injured party has no right to damages.

An Occurrence Not Reasonably Forseeable

The basic and prime element of an act of god is the happening of an unforeseeable event. For this, if the harm or loss was
caused by a foreseeable accident that could have been prevented, the party who suffered the injury has the right to
compensation. However, the damage caused by an unforeseen and uncontrollable natural event is not compensable as it could
not have been prevented or avoided by foresight or prudence of man.
Moreover, courts are of the opinion that the act of God defence exists only if the event is so exceptional and could not
have been anticipated or expected by the long history of climate variations in the locality. It is constructed by only the
memory of man i.e. recorded history. The courts may demand expert testimonies to prove that an event was
unforeseeable.

It is Impossible To Prevent By Any Reasonable Precautions And Absence Of Human Agency Causing The Alleged
Damage:
It means practically impossible to resist. Negligence constitutes failure to take the necessary precautions. In an
incident where a human factor was present, even though the harm could not be prevented, the fact that the human
factor exercised reasonable care and precautions to prevent the harm has to be proved if the defence of act of
God has to prevail. If negligence is alleged and proved, then the defence of act of God will fail. If an owner was
negligent in properly maintaining a tree that fell on a passerby, he cannot be exempted from liability by act of God
principle.
In the law of torts, an act of God may be asserted as a type of intervening cause, the lack of which would have avoided the cause or
diminished the result of liability (e.g., but for the earthquake, the old, poorly constructed building would be standing). However,
foreseeable results of unforeseeable causes may still raise liability. For example, a bolt of lightning strikes a ship carrying volatile
compressed gas, resulting in the expected explosion. Liability may be found if the carrier did not use reasonable care to protect against
sparks—regardless of their origins. Similarly, strict liability could defeat a defense for an act of God where the defendant has created the
conditions under which any accident would result in harm. For example, a long-haul truck driver takes a shortcut on a back road and the
load is lost when the road is destroyed in an unforeseen flood. Other cases find that a common carrier is not liable for the unforeseeable
forces of nature
Nichols v Marsland: CA 1876
Flood following heavy rain was not negligent
The defendant was the owner of a series of artificial ornamental lakes, which had existed for a great number of years, and had never previous to
18th June, 1872 caused any damage. On that day, however, after a most unusual fall of rain, the lakes overflowed, the dams at their end gave
way, and the water out of the lakes carried away the county bridges lower downstream.
Held: The jury found no negligence. An exceptionally heavy rainstorm was a sufficient excuse as an act of God, to escape liability under the
rule in Rylands -v- Fletcher. Act of God is not, and never was, the same as inevitable accident or the absence of negligence. The defendant
could not have anticipated the exceptional flood which caused her dam to break; no conduct of hers was a proximate cause of the plaintiff’s
damage.
Mellish LJ distinguished Ryland v Fletcher: ‘But the present case is distinguished from that of Rylands -v- Fletcher in this, that it is not the act
of the defendant in keeping this reservoir, an act in itself lawful, which alone leads to the escape of the water, and so renders wrongful that for
such escape would have been lawful. It is the supervening vis major of the water caused by the flood, which, superadded to the water in the
reservoir (which of itself would have been innocuous), causes the disaster.’ and ‘The remaining question is, did the defendant make out that the
escape of the water was owing to the act of God? Now the jury have distinctly found, not only that there was no negligence in the construction
or the maintenance of the reservoirs, but that the flood was so great that it could not reasonably have been anticipated, although, if it had been
anticipated the effect might have been prevented; and this seems to us in substance a finding that the escape of the water was owing to the act of
God. However great the flood had been, if it had not been greater than floods that had happened before and might be expected to occur again,
the defendant might not have made out that she was free from fault; but we think she ought not to be held liable because she did not prevent the
effect of an extraordinary act of nature, which she could not anticipate.
It was indeed ingeniously argued for the appellant that at any rate the escape of the water was not owing solely to the act of God, because the
weight of the water originally in the reservoirs must have contributed to break down the dams, as well as the extraordinary water brought in by
the flood. We think, however, that the extraordinary quantity of water brought in by the flood is in point of law the sole proximate cause of the
escape of the water. It is the last drop which makes the cup overflow
In the case of Blyth v Birmingham Waterworks Company (1856) 11 Ex Ch 781

The defendants, Birmingham Waterworks Company, were the water works for Birmingham They had been incorporated by statute for the
purpose of supplying Birmingham with water. The statute provided that:
the company should, upon the laying down of any main-pipe or other pipe in any street, fix, at the time of laying down such pipe, a proper
and sufficient fire-plug in each such street, and should deliver the key or keys of such fire-plug to the persons having the care of the engine-
house in or near to the said street, and cause another key to be hung up in the watch-house in or near to the said street. Those pipes were to be
eighteen inches beneath the surface of the soil. The mains were at all times to be kept charged with water. The defendants derived no profit
from the maintenance of the plugs distinct from the general profits of the whole business, but such maintenance was one of the conditions
under which they were permitted to exercise the privileges given by the Act. The main-pipe opposite the house of the plaintiff was more than
eighteen inches below the surface. The fire-plug was constructed according to the best known system, and the materials of it were at the time
of the accident sound and in good order.
The defendant had installed a fireplug into the hydrant near Mr Blyth's house. That winter, during a severe frost, the plug failed causing a
flood and damage to Mr Blyth's house. Blyth sued the Waterworks for negligence
In establishing the basis of the case, Baron Alderson, made what has become a famous definition of negligence:
Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct
of human affairs, would not have done.
The court found that the severe frost would do, or doing something which a prudent and reasonable man would not do. The defendants might
have been liable for negligence, if, unintentionally, they omitted to do that which a reasonable person would have done, or did that which a
person taking reasonable precautions that could not have been in the contemplation of the Water Works. They could only have been negligent
if they had failed to do what a reasonable person would do in the circumstances. Birmingham had not seen such cold in such a long time, and
it would be unreasonable for the Water Works to anticipate such a rare occurrence.
B. Martin offered a concurring opinion, stating that "hold otherwise would be to make the company responsible as insurers."
B. Bramwell delivered a dissenting judgment on the law, but reached the same result on the facts
Its purpose is to act as a last-resort safety device in the event of the water level falling dangerously low: when the top of the
plug is out of the water it overheats, the low-melting-point core melts away and the resulting noisy release of steam into the
firebox serves to warn the operators of the danger before the top of the firebox itself runs completely dry, which could result
in catastrophic failure of the boiler.

In case of Ramalinga Nadar v. Narayana Reddiar (AIR 1971 Ker 197)

the plaintiff had booked goods with the defendant for transportation. The goods are looted by a mob, the
prevention of which was beyond control of defendant. It was held that event beyond control of the
defendant cannot be said Act of God. It was observed that: “Accidents may happen by reason of the play of natural
forces or by the intervention of human agency or by both. It may be that in either of these cases, an accident may be
inevitable. But it is only those acts which can be traced to natural forces and which have nothing to do with the intervention of
human agency that could be an aid to be acts of God
The very first thought that comes to mind after listening to the term “inevitable accident” is a road
accident. Accident means an unexpected injury and if the same could not have been foreseen and
avoided, in spite of reasonable care on the part of the defendant, it is inevitable accident.
In law, an inevitable accident is a general defense in the law of tort. The inevitable accident which
is also known as unavoidable accident says that a person cannot be held liable for an accident
which was not foreseeable despite all care and caution taken from his side. Law states that a high
degree of precaution is not required, reasonable care is sufficient
Example: If A was driving a car and he was all in his senses and took all due care, but suddenly
due to mechanical part failure his car loses his balance and hits a passer-by. In this case, the driver
would not be liable as he took all precautions from his side. The accident was unavoidable.
Act of God can also be sometimes classed in inevitable accidents.
Example: A was driving a car with all the reasonable care from his part. Suddenly due to heavy rain
and storm the road collapsed and A’s car hit many pedestrians. Here also the driver would not be
liable. It was completely out of his hand.
Sir Frederick Pollock has defined an inevitable accident as, “not avoidable by any such precautions
as a reasonable man, doing such an act then there could be expected to take.”
For the defendant to use the defense of inevitable accident, it is necessary to show two things:
1.There was no intention on the part of the defendant.
2.And, the collision could not have been avoided with reasonable care
The defendant can clearly deny any responsibility but is more difficult to satisfy. The most
prominent defense used by the defendant is that there was an unanticipated blackout just before
the crash. In that case, the defendant has to prove that there was a sudden medical illness.
The defendant was driving a car on the road and suddenly he got a cardiac arrest. Due to this sudden arrest, he hit a passer-by
and on-looker. The matter went to the court and the defendant pleaded the defense of inevitable accident. To support his side,
he even presented the court with his medical history of cardiac arrest. But the judge gave the rule against the defendant. The
honorable judge stated that the defendant could not prove that the arrest was sudden at the time of the accident which was a
necessary element for the plea of inevitable accident.
Secondly, the defendant was well known for his health condition of cardiac arrest. He should have not taken the risk of
driving. Therefore, the accident was not unforeseeable and could have been avoided. By driving with his serious illness,
therefore, he should be held liable for the accident.
In the case of Chow-Hidasi v. Hidasi, 2011 BCSC 583, the defense of an inevitable accident was accepted by the court.
In this case, the plaintiff is the wife and the defendant is the husband. Both husband and wife were traveling along a mountain
road. The defendant was well aware of the slippery road so took all the precautions. He was traveling below 100kmph. But
somehow the car lost the balance. The defendant pulled the emergency brakes which couldn’t stop the car and the car hit the
near barrier, injuring the plaintiff.
The plaintiff sued the husband stating that he was rashly driving and didn’t take the precautionary measures. The defendant
took the pleading of an inevitable accident. The court accepted the defense stating that the car lost the control because of the
mechanical failure which was totally out of the hands of the defendant.
Facts of the case – A. Krishna Patra vs Odisha State Electricity Board 2 (1998) ACC 367,
1998 ACJ 155, AIR 997 ORI 109
FACTS: A couple while walking on the streets of Odisha, the wife met with a dangerous accident. The
wife came into contact with a live conductor which was totally damaged n lying on the road naked.
As her condition was critical, she was taken to the hospital where she died. The petitioner, her
husband, claimed compensation of Rs. 1,00,000 from the Odisha state electricity board.
 The petitioner stated that the mishap was exclusively due to negligence. Proper care and caution were not taken
on the part of the electricity board; hence the board should be held liable for the compensation. The electricity
board argued that the incident was an inevitable accident. The incident was out of their control. Soon after an
electrical inspector was appointed to examine the status of the conductor and the reason for its fall. Surprisingly,
the electrical inspector showed a different picture of the case. The live conductor had outlived its age. It’s already
been more than 30 years and was very weak. The reason for the fall was its aging and has become mechanically
unsound. The police investigation report also stated that the death of the women was due to electrification.
ISSUES:
1) Was the whole incident an inevitable accident?
2) Does the electricity board owe any duty of care towards the woman?
3) Should the electricity board be held liable for the death of the woman?
This case involves the concept of inevitable accidents and negligence. ” Negligence is the breach of duty caused by the omission
to do something which a reasonable man, guided by those considerations which ordinarily, regulate the conduct of human affairs
would do or doing something which a prudent and reasonable man would not do. Actionable negligence consists in the neglect of
the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill.

The essential element of inevitable accident:

1) The accident should have been unforeseeable.
2) The event was out of scope and had no means to avoid it.
3) Reasonable care and caution should be taken.
 Essential elements of negligence:
1) The defendant must own a duty of care to the plaintiff.
2) There must be legal damage sustained by the plaintiff.
3) There must be a breach of duty on the part of the defendant.
ANALYSIS:
As we can gather from the fact that the live conductor was naked and lying on the crowded street. It is very obvious that in
such a crowded place anyone can come in contact with the conductor which is very dangerous for human life. Electricity
board claiming that the whole incident was an inevitable accident. All proper due care was taken and the accident was out of
scope. But as we can see from the report of the electrical inspector the state of the conductor was not great. It was overused
and already aged. There is a clear indication of negligence on the part of the electricity board. Moreover, an endeavor which
is indulged in a perilous or inalienably risky industry which represents a potential danger to the wellbeing and security of the
people working there and living in the encompassing territories, owe a duty to make sure that no mischief results to anybody
because of unsafe or innately hazardous nature of the action.
After analyzing the fact, it can be concluded that the incident was not an inevitable accident. Proper due care was not taken.
The electricity board has not examined the conductor from time to time. This accident could have been avoided by regular
inspection of the conductors and the wires. We can see that all the elements necessary to prove the negligence is present.
Electricity boards should be held liable for the death of women. But the electricity board pleaded the defense of inevitable
accident which was rejected by the court and compensation was awarded for Rs. 50,000 to the defendant
Brown v Kendall, 1850 6 Cush
Holmes v Mather, 1857 L.R. 19 Ex.
Stanley v Powell, 1891 11 Q.B. 86
Padmavati v Dugganaika, 1975 1 Kam. LJ . 93
Assam State Coop., etc. Federation Ltd v smt. Anubha Sinha, A.I.R. 2001 Guwahati