Unit II — General Defences & Vicarious Liability

“He who consents cannot complain of injury.” — volenti non fit injuria

General Defences

Even where all the ingredients of a tort exist, the defendant may escape by pleading a recognised general defence:

flowchart TD
    A["General Defences"]:::root
    A --> B["Volenti non fit injuria<br/>(free, informed consent<br/>to the risk)"]:::leaf
    A --> C["Inevitable accident<br/>(no care could prevent it)"]:::leaf
    A --> D["Act of God<br/>(unforeseeable natural force)"]:::leaf
    A --> E["Necessity / Private defence<br/>(lesser harm to avert greater;<br/>reasonable self-protection)"]:::leaf
    A --> F["Statutory authority<br/>(law authorised the act)"]:::leaf

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Volenti non fit injuria — a plaintiff who freely and with knowledge consented to the risk cannot complain of resulting harm. But knowledge is not consent (scienti non fit injuria), consent must be free (not under compulsion — Smith v. Baker, 1891), and it does not cover the defendant’s own negligence or rescuers (Haynes v. Harwood, 1935).
Inevitable accident — an unforeseen harm that no reasonable care could have prevented (Stanley v. Powell).
Act of God (vis major) — a natural event so extraordinary and unforeseeable that no human foresight could guard against it (Nichols v. Marsland — an unprecedented rainfall).
Necessity — intentionally causing a smaller harm to prevent a greater one; private defence — reasonable, proportionate force to protect oneself or one’s property.
Statutory authority — an act the legislature has authorised is no tort, provided it is done without negligence.

Vicarious Liability — Master & Servant

A master is liable for the torts of his servant committed in the course of employment — respondeat superior (“let the master answer”) and qui facit per alium facit per se (“he who acts through another acts himself”). A servant is one whose employer controls how the work is done; an independent contractor decides that himself (and the employer is generally not liable for his torts).

“In the course of employment” is the battleground: it covers an authorised act, a wrongful or unauthorised mode of doing an authorised act (Limpus v. London General Omnibus Co. — a driver racing against orders), and even acts done for the servant’s own benefit if within the scope of duty (Lloyd v. Grace, Smith & Co. — a fraudulent clerk). But a “frolic of his own” — an independent journey on the servant’s private business — takes him outside employment, and the master is not liable.

State Liability for Torts of Servants

The State can be sued for its servants’ torts (Art. 300 traces back to the East India Company’s liability). The old line distinguished sovereign functions (immune) from non-sovereign functions (liable): P. & O. Steam Navigation (1861); State of Rajasthan v. Vidyawati (1962, liable — a government jeep driver’s negligence) vs Kasturilal v. State of U.P. (1965, immune — police seizure). Modern courts have shrunk the sovereign shield almost to nothing, awarding compensation under Arts. 32/226 for violations of fundamental rights (Nilabati Behera v. State of Orissa, 1993).

✏️ Sample Solved Problem (IRAC Method)

Problem: A bus driver is given printed instructions not to race with or obstruct other buses. In disobedience he races, obstructs a rival omnibus and causes a collision that damages it. Is the employer liable?

I — Issue

Whether an employer is vicariously liable when the servant causes harm while disobeying an express prohibition.

R — Rule

A master is liable for a wrongful or unauthorised mode of doing an authorised act, even one done against express orders, so long as it falls within the scope of employment.
Limpus v. London General Omnibus Co. (1862): a driver who, contrary to written instructions, obstructed a rival’s bus and caused a collision was acting in the course of his employment — the master was liable; the prohibition went to the manner of doing the very job he was employed to do (driving).

A — Analysis

The decoy is the express prohibition — it tempts the conclusion that disobedience puts the act outside employment. Limpus squarely rejects that: driving the bus was the servant’s job; racing and obstructing were merely a prohibited way of doing that authorised work, not a separate private venture. He had not gone off on a “frolic of his own”; he was driving the employer’s bus on the employer’s route. A prohibition limiting how the job is done does not narrow the scope of employment.

C — Conclusion

The employer is vicariously liable. The driver’s disobedient racing was a wrongful mode of performing his authorised duty, committed in the course of employment (Limpus v. London General Omnibus Co.).

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