DEFENCES TO

INTENTIONAL TORTS
 OUTLINE
• Volenti non fit injuria
• Contributory negligence
• Illegality
• Self defence
• Defence of another / property
• Necessity
• Mistake
• Consent
• Discipline
• Lawful arrest
 A.VOLENTI NON FIT INJURIA
• A direct translation of the latin
phrase volenti non fit injuria is, 'to one
who volunteers, no harm is done'.
• Where the defence of volenti applies it
operates as a complete defence absolving
the Defendant of all liability.
• The defence of volenti non fit
injuria requires a freely entered and
voluntary agreement by the claimant, in
full knowledge of the circumstances, to
absolve the defendant of all legal
consequences of their actions.
 Nettleship v Weston [1971] 3
WLR 370
• The defendant was a learner driver. She was taking lessons from a

friend. The friend checked that the defendant's insurance covered her

for passengers before agreeing to go out with her. On one of the

lessons Mrs Weston turned a bend, Mr Nettleship told her to

straighten the wheel but Mrs Weston panicked and failed to straighten

the wheel. She approached the pavement and Mr Nettleship grabbed

the handbrake and tried to straighten the wheel but it was too late.

She mounted the pavement and hit a lamp post. Mr Nettleship

fractured his knee.

• The defendant raised the defence of volenti non fit injuria in
that in agreeing to get in the car knowing she was a learner,
he had voluntarily accepted the risk.
• Held:

A learner driver is expected to meet the same standard as a

reasonable qualified competent driver. Volenti did not apply as
he had checked the insurance cover which demonstrated he
did not waive any rights to compensation.
 White v Blackmore [1972] 3 WLR
296
• Mr White was killed at a Jalopy car race due negligence in the way
the safety ropes were set up. The wheel of a car got entangled in a
safety rope some way away. The master stake and ropes were
winched from the ground. The deceased was catapulted some 20
feet and died from his injuries. Mr White was a driver in the race but
at the time of the incident he was between races and standing close
to his family. He had signed a competitors list which contained an
exclusion clause.
• There was also a warning sign at the entrance to the
grounds which stated that Jalopy racing is dangerous
and the organisers accept no liability for any injury
including death howsoever caused. The programme
also contained a similar clause. His widow brought an
action against the organiser of the event who
defended on the grounds of volenti and that they had
effectively excluded liability.
 • Held:

The defence of volenti was unsuccessful. Whilst it

he may have been volens in relation to the risks
inherent in Jalopy racing, he had not accepted the
risk of the negligent construction of the ropes.
However the defendant had successfully excluded
liability (Lord Denning MR dissenting).
 LORD DENNING MR:
• “No doubt the visitor takes on himself the risks inherent in motor racing, but he
does not take on himself the risk of injury due to the defaults of the organisers.
People go to race meetings to enjoy the sport. They like to see the
competitors taking risks, but they do not like to take risks on themselves, even
though it is a dangerous sport, they expect, and rightly expect, the organisers
to erect proper barriers, to provide proper enclosures, and to do all that is
reasonable to ensure their safety. If the organisers do everything that is
reasonable, they are not liable if a racing car leaps the barriers and crashes
into the crowd. But, if the organisers fail to take reasonable precautions, they
cannot excuse themselves from liability by invoking the doctrine of volenti non
fit injuria: for the simple reason that the person injured or killed does not
willingly accept the risks arising from their want of reasonable care”.
 B. CONTRIBUTORY
NEGLIGENCE

• This defence is applicable to trespass to

persons.

• It does not apply to any other intentional

torts.
 Murphy v Culhane [1976] 3 All ER
533
• In April 1975 the defendant was convicted on a plea of guilty of the

manslaughter of the plaintiff's husband, M. The plaintiff alleged that the

defendant had unlawfully assaulted and killed M and claimed damages

under the Fatal Accidents Acts 1846–1959 and the Law Reform

(Miscellaneous Provisions) Act 1934. The defendant admitted that he had

pleaded guilty to manslaughter and that M had died as a result of his

assault, but alleged that the assault had occurred during a criminal affray

which M had initiated with others for the purpose of assaulting the

defendant. He claimed that M, inter alia was guilty of contributory

negligence in that his death was caused in part by his own fault in initiating

or participating in the criminal affray.

 Held:
• Irrespective of the admission by the defendant of his plea of guilty, he was
entitled to raise defences in civil proceedings following his conviction. There
were matters which might not only aggravate or mitigate the damages
awarded, but also provide a complete defence to liability for the tort
complained of. It might be found that M, by taking part in the affray, had
deprived himself of a cause of action or had taken the risk on himself.
Moreover, even if the plaintiff were entitled to damages, they could be
reduced, since M's death might be the result partly of his own fault. The
facts ought to be investigated.
C. ILLEGALITY (EX TURPI CAUSA
NON ORITUR ACTIO)
• The defence of illegality means that a person
cannot rely on their illegal act or conduct to
found an action against another person.

• The Latin maxim, "ex turpi causa non oritur

actio", means "out of an illegal act there can
be no cause of action“.
• A person, who, for example, is injured by the negligent act of
another person while he himself is doing an "illegal" act, may not be
allowed to sue that negligent person.
• The defence preserves the integrity of the legal system ie, the
desirability of not allowing a claimant in a civil action to obtain "profit"
from an illegal act.

• The defence rests on a principle of public policy that the courts will
not assist a plaintiff who has been guilty of illegal or immoral
conduct.
 Tay Kian Hock v Kewangan
Bersatu Bhd [2002] 4 MLJ 411
• For the defence of ex turpi causa non oritur actio to

succeed in tort, the defendant must have established

that the plaintiff's conduct was so clearly reprehensible

as to justify its condemnation by the court and that the

conduct was so much a part of the claim against the

defendant as to justify refusing any remedy to the

plaintiff.
• In the instant case, conversion was perpetrated by the plaintiff
himself. Had the spray pump not been hidden and available for
repossession at JL Teknik's factory, the defendant would have
repossessed it without any hassle. Having taken over the business
of JL Teknik together with its equipment, the plaintiff was duty bound
to keep the spray pump under his custody and hand over the same
to the defendant's appointed repossessors. As such, the plaintiff's
conduct was so reprehensible as to justify its condemnation by the
court. Further, that conduct formed so much of an integral part of the
conversion that it would be wholly against public conscience to allow
the plaintiff to succeed.
 D. SELF DEFENCE
• This defence is relevant in a case on
trespass to person.
• The general principle is that, when a person
being attacked, he must take reasonable
steps to defend himself, especially in
situations where he does not have the time or
opportunity to get help.
• REQUIREMENTS NEEDED TO BE CONSIDERED BEFORE
INVOKING THIS DEFENCE
• 1. Whether it is reasonable for the defendant to use violence
in defending himself (reasonableness).

• 2.The level of violence employed must be proportionate to the

plaintiff’s act (proportionality).

• It is a question of fact, whether the violence employed by the

defendant is justifiable in the circumstances.
Cockroft v Smith [1705] 2 Salk 642

• In 1705, a lawyer bit off the finger of a clerk during

a scuffle in court.
• This was held to be a not reasonable response to
the clerk's threat, which involved thrusting his
fingers towards the lawyers eyes.
• This case established the idea that self-defence
must be in proportion.
 Lane v Holloway [1968] 1 QB 379

• The plaintiff, aged 64, and the defendant, aged 23, were neighbors.

One day, on July 21, 1966, while the plaintiff, who had returned from

a public-house, was enjoying the air with a neighbour, the

defendant's wife shouted abuse at them from her first-floor bedroom

window. The plaintiff replied: "Shut up, you monkey-faced tart."

When the defendant asked the plaintiff what he had said to his wife,

the plaintiff replied: "I want to see you on your own," implying a

challenge to fight.
• The defendant came out into the courtyard in pyjamas and dressing-

gown. He moved close to the plaintiff, causing the latter to think that

he might be struck. The plaintiff threw a punch at the defendant's

shoulder. The defendant then drew his right hand from his pocket

and punched the plaintiff very severely in the eye. The blow caused

a most severe wound, entailing 19 stitches, an operation, and a

month in hospital.

• On the plaintiff's claim for damages for assault, the defendant

claimed that the plaintiff's injuries were caused or contributed to by

the fault of the plaintiff himself.

 Held:
• The defendant’s reaction was not
proportionate to the plaintiff’s act.
• The defendant should not have taken the
plaintiff’s word as a challenge due to the age
difference.
• This showed that the violence was
unreasonable and unjustified.
 E. DEFENCE OF ANOTHER
• Extension of the scope of self-defence.
• The general principle is that a person may
act in order to defend his children, wife or
husband, and other members of his or her
family.
• Again, the force used must be reasonable
and proportionate in the circumstances.
• Therefore, the question that need to be considered is: “Was it
reasonable for the defendant to protect the other person in
this way?” and “whether the force is necessary in the
circumstances?”
• The relationship between the defended and the defender is on
factor in determining the reasonableness of the defendant’s
act.
• A person may also defend a stranger against any violence
that is prohibited by the law.
 F. DEFENCE OF PROPERTY
• This defence rests on the principle that a person is
justified in using reasonable force in order to
defend his property, be it land or goods.
• The defence may be raised by a person who has
either possession in fact or the right to immediate
possession, as against a trespasser.
 Creswell v Sirl [1947] 2 All ER 730
• The plaintiff’s dog and another dog were chasing the defendant’s sheep, as

a result of which the defendant’s sheep miscarried. The defendant saw what

was happening. The defendant in thinking that the dogs were strays and

therefore it would be dangerous to catch them, shot the dogs.

• The court held that for the defendant to use the defence of property he must

prove firstly, that the sheep was in actual danger and the danger must be

imminent. Secondly, the defendant must prove that if the attacking dogs

were left at large, they will renew their attack so that his sheep would

consattntly be subjected to real and imminent danger.

• The court found out that the defendant had satisfied both requirements.
• A person who has the possession in fact of, or the immediate right to
possess land, may use reasonable force in order to prevent a
trespasser from entering his land or to oust that trespasser from his
land.
• Therefore, placing barbed wires or spiked railings on the confines of
one’s land may be considered as reasonable act in deterring
trespassers from entering the land.
• This right to protect one’s land/property does not extend to placing
deadly implements so as to cause the trespasser to suffer grave
bodily injuries.
 Depue v Flatau [1907] 100 Minn 299
• Depue was a cattle buyer. He came to the Flatau's house on their

invitation to examine some cattle before purchase however it was too

dark to properly examine them. He asked if he could stay overnight in

order to examine the cows in the morning, but the defendants refused

– but they invited him for dinner. After dinner, when he was getting

ready to leave he collapsed on the floor. It was clear at this point that

he was very ill. He asked again to stay overnight, but again his request

was denied.
• The son practically carried him out to his horse
and buggy, put him on, threw the reigns over his
shoulders and sent him on his way. Depue was
found the next day almost frozen; he had fallen off
his buggy less than a mile down the road and
spent the entire night outside in the cold. He had
to have several fingers amputated.
• Held: The defendant was held liable to the
sick trespasser (the plaintiff) for removing
him from the premises into the snow.
 G. NECESSITY

• This defence is relevant to all forms of

intentional torts.

• The basis of this defence is a mixture of

charity, he maintenance of the public good
and self protection.
• In Southwark London Borough Council v
Williams [1971] 2 All ER 175, Lord
Denning said that to use the defence of
necessity, a great danger must be
imminent, or the act was done in order to
save lives.
 1. PRIVATE NECESSITY
• A defendant who pleads the defence of private
necessity is in effect pleading that his intentional
act of trespass to the plaintiff is justified and
necessary to prevent greater damage to himself or
to another.
• One of the factors that is taken into consideration
is whether life is being threatened in the situation.
 Leigh v Gladstone [1909] 26 TLR
139
• The plaintiff, a women’s right activist, was arrested
and imprisoned. She went on a hunger strike and
in order to save her life, the prison wardens force-
fed her. The plaintiff claimed for battery.
• The court held that the prison officers may raise
the defence of private necessity as their
intervention was lawful in order to protect her from
her own folly.
• The defence of necessity has been allowed in a
situation where the doctor operated on an
unconscious patient in order to save the
patient’s life, and where the doctor believed that
she was giving appropriate care to a mentally
incapacitated patient- F v West Berkshire Health
Authority [1989] 2 All ER 545
 Rigby v Chief Constable of
Northamptonshire [1985] 2 All ER 985
• In 1977 the plaintiffs' shop was burnt out
when police fired a canister of CS gas into
the building in an effort to flush out a
dangerous psychopath who had broken into
it. The canister set the shop ablaze. At the
time the canister was fired into the shop there
was no fire-fighting equipment to hand.
• The plaintiffs brought an action for damages against
the defendant, the chief constable, alleging trespass,
the escape of a dangerous thing, nuisance and
negligence, and contended that the defendant ought to
have purchased and had available a new CS gas
device, rather than the CS gas canister, since the new
device involved no fire risk. The defendant had
considered acquiring the new device but had deferred
a decision to do so pending tests by the Home Office.
• In his defence the defendant pleaded the defence
of necessity, but the plaintiffs contended that such
a defence was not available since the necessity
had been brought about by the police's own
negligence, as it would have been a reasonable
precaution to have acquired the new device and
he had not done so.
 HELD:
• In regard to the action in trespass, the defence of necessity was
available in an action for trespass provided there was no negligence
on the part of the defendant in creating or contributing to the
necessity. Having regard to the fact that there had been a
dangerous psychopath in the building whom it was necessary to
arrest, and since the police had not been negligent in not having the
new CS gas device, the only course of action open to the police had
been to fire the canister, and the defence of necessity therefore
succeeded in the plaintiff's action for trespass.
 2. PUBLIC NECESSITY
• This defence may be used when the defendant acts in the
defence of his country or community.

• Dewey v White 173 ER 1079

• A stack of chimneys belonging to a house close to a highway,

which, by reason of a fire, were in immediate danger of falling

on the highway, were thrown down by some firemen.

• Held, that they were justified in so doing, and were not

answerable for damages unavoidably done to an adjoining

house of a third person.

 H. MISTAKE
• In intentional torts, mistake is not a valid defence as the important
requirement is the intention on the part of the defendant to do the
act in question.
• Mistake may be accepted as a valid defence in limited
circumstances.
• For an example, a police officer who arrests someone whom he
reasonably suspects to be committing a seizable offence but who is
in fact not committing such an offence may justify his actions on
grounds of lawful arrest and therefore the mistake may be raised as
a defence in an action for false imprisonment.
 I. CONSENT
• Consent by the plaintiff may be given expressly or
impliedly, inferred from his conduct.
• The existence of duress or threats would vitiate
consent.
• The consent must be given only after the plaintiff
has been fully informed of all the relevant risks.
 CONSENT IN RELATION TO
MEDICAL TREATMENT
• Consent is a significant issue in the area
of medical treatment as any physical
contact with a patient without his consent
is prima facie a battery.
Chatterton v Gerson [1981] QB 432
• In order to establish trespass to the person a patient had to
show that she did not consent to the operation; that, where a
doctor failed to explain in broad terms the nature of the
operation, the patient could not consent to it and, in such
circumstances, any consent given would be unreal and an
action would lie in trespass; but that the plaintiff, on her own
evidence, understood the general nature of the operation and,
accordingly, her consent was a real consent.
• In a situation where the patient is
unconscious, and where the patient may be
of unsound mind, the courts have held that
doctors would not be liable if the purpose of
the intended treatment was to save life and
was in the best interests of the patient.
 J. DISCIPLINE

• This defence is relevant to the tort of

trespass to person, particularly battery and
false imprisonment.

• The purpose of the defendant’s act is to

punish the plaintiff.
• At common law, a headmaster and a schoolteacher had

the right to use reasonable force on order to discipline

the pupils under their tutelage.

• Reasonable force depends on whether it is necessary in

the circumstances to commit what would otherwise
amounts to assault, battery or false imprisonment on the
pupil so as to maintain order in the classroom or school.

• School rules and parental instructions are factors that

will be taken into consideration in deciding whether the
teacher’s conduct is reasonable- Craig v Frost [1936] 30
QJP 140
 Ryan v Fildes [1938] 3 All ER 517
• The plaintiff, a schoolboy of 10 years of age, was by reason of
his lack of discipline boxed on the ear by his schoolmistress.
As a result of the blow, which was found not to have been a
violent one, the boy became deaf in one ear. The class in
which the boy was working at the time of the accident was a
large one consisting of 46 boys.

• The court held that, the blow, though a moderate one,

exceeded reasonable and lawful correction.
 K. LAWFUL ARREST
• The defence of lawful arrest may justify what

would otherwise amount to false imprisonment,

battery or interference with goods.

• A police officer who reasonably suspects that a

seizable offence is being committed may effect

an arrest without a warrant under the Criminal

Procedure Code.
• Reasonable suspicion includes the arrest of the
‘wrong’ offender provided that the circumstances
were such that a reasonable man would have
suspected that the plaintiff was the offender
concerned- Tan Eng Hoe v AG [1933] MLJ 151
• A police officer who conducts a search may take
away any articles found on the person arrested
and these articles will be placed in safe custody or
brought to the court as evidence of crime.
• This justifies what would otherwise amounted to
interference with goods.
END OF LECTURE
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