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Question
Principle: Consent is a good defence for civil action in tort. But consent must include both knowledge of risk and assumption of risk, i.e, readiness to bear harm.
Facts: A lady passenger was aware that the driver of the cab, in which she opted to travel was little intoxicated. The cab met with an accident and lady got injured.
Options
Lady can refuse to pay the fare as she had suffered injuries.
Lady is entitled to claim compensation as she only knew about risk and there was no assumption of risk.
Lady is not entitled to claim compensation as she had knowled ge of the risk.
Driver can take the plea that he was lightly intoxicated.
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Solution
Lady is entitled to claim compensation as she only knew about risk and there was no assumption of risk.
Explanation:
i. The plaintiff knows that there is a risk.
ii. He knowingly agrees to suffer harm.
If only the first point is present, there is only knowledge of the risk, it is no defence because the maxim his volentinon fit injuria. Merely because the plaintiff knows of the harm does not imply that he assent to suffer harm. The reasonable conclusion drawn Lady is entitled to claim compensation as she only knew about the risk and there was no assumption of risk.
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LEGAL PRINCIPLE 'Free consent' defined as - Consent is said to free when it is not caused by
I. coercion as defined in Section 15
II. under influence, as defined in Section 16
III. fraud, as defined in Section 17, or
Iv. misrepresentation, as defined in Section 18
v. mistake, subject to the provisions of Sections 20, 21 and 22 Consent is said to be so caused when it would not have been given but for the existence of such coercion, under the influence, fraud, misrepresentation or mistake. 'Fraud' is defined in which Section?
Given below is a statement of legal principle followed by a factual situation. Apply the principle to the facts given below and select the most appropriate answer.
Legal Principles: A private nuisance may consist of:
1. Any interference with a person’s use or enjoyment of land.
2. The act of wrongfully causing or allowing the escape of deleterious things into another person’s land e.g. water, smoke, smell etc.
Factual situation: D erected a brick grinding machine adjoining the premises of P, a medical practitioner. The dust from the machine polluted the atmosphere and caused inconvenience to P and his patients. Here DECISION:
Apply the legal principles to the facts given below and select the most appropriate answer:
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1. The Tort of Negligence is a legal wrong that is suffered by someone at the hands of another who fails to take proper care to avoid what a reasonable person would regard as a foreseeable risk.
2. The test of liability requires that the harm must be a reasonably foreseeable result of the defendant’s conduct, a relationship of proximity must exist and it must be fair, just and reasonable to impose liability.
3. Volenti non-fit injuria is a defence to action in negligence.
Facts:
X purchased a disused cinema with the intention of turning it into a Multiplex. Six weeks after, X entered the building for the first time, it was set on fire by intruders and destroyed. As a result, the adjacent buildings were also affected and damaged. The cinema building was a target for vandals and children who often played there, but X had had no knowledge of previous attempts to start a fire at the cinema buildings. The owners of the adjacent buildings brought an action for negligence against X on grounds that X failed to take reasonable care for the safety of the buildings by not keeping the cinema locked, making regular inspections and employing a caretaker. Decide whether the occupier of a property owes a duty of care to the adjoining occupiers in respect of acts of trespass on his property resulting in damage to the adjoining properties?
