assignment on volenti non fit injuria

Volenti Non Fit Injuria

Introduction.

Normally, when a person suffers an injury at the expense of someone else’s lack of care or breach of duty, the person who displays such breach of duty is liable to pay damages to the victim. Volenti Non Fit Injuria is a defence that could be used by the defendant to avoid such damages. Volenti Non Fit Injuria is a widely used as a defence in Tort Law. It is often referred to as the defence of consent. The burden of proof lies upon the defendant. The defendant by claiming the defence of Volunti Non Fit Injuria tries to indicate that the plaintiff voluntarily agreed to suffer harm, therefore, later he must not complaint about the same as he consented to it. His consent acts as a strong defence. The consent given could be implied or express and can even be inferred from the conduct of the party.

In law of tort, it is said that no person who has voluntarily waived or abandoned a right can enforce that right later. In Latin, Volenti Non Fit Injuria literally translates to ‘to a willing person, injury is not done’. One cannot invite a guest to their home and later sue them for trespass of their property. Likewise, a sportsperson after signing the contract for a specific season cannot sue the other party for getting injured if the contract explicitly indemnifies the other party of such foreseeable injury or risk. It could be said that the maxim presupposes a tortious act by the defendant. This maxim has wide applicability and we passively witness it in our daily life. Often, people are confused whether this maxim revolves around a legal contract. The answer to this would be no, the application of ‘volenti non fit injuria’ is not restricted to a legal contract, rather the determining factor lies upon the competence of the decision making capacity of the person at the time the consent was given.

Therefore, a minor, who would otherwise possess no legal capacity to consent, would be considered to be capable of making a reasonable assessment of the advantages and disadvantages of a treatment proposed by a physician or a surgeon, and he could give a valid consent.

When the defence of Volenti Non Fit Injuria is available?

For a defendant to plead the defence of ‘volenti non fit injuria’, it is necessary to show that the person (plaintiff) who consented to doing the act gave his consent freely. The consent of the plaintiff would not serve as a good defence if it had been obtained by fraud or under compulsion or under some mistaken impression. Emphasis must also be put on the fact that the act done by the defendant must be the same for which the consent is given.

In order to understand this, we may take the help of a case law. In Lakshmi Rajan v. Malar Hospital Ltd. [i] , the complainant was a married woman. She noticed development of a painful lump in her breast. Although, the lump had no effect on her uterus, during the surgery, her uterus was removed without any reason whatsoever. It was held that the hospital, was liable for deficiency in service. The court held that the patient’s consent for the operation did not imply her consent to the removal of the uterus.

When the defence of Volenti Non Fit Injuria is not available?

1. Consent obtained by Fraud

If the consent is obtained by fraud, it would not serve as a good defence. But it is essential to make note of the fact that mere concealment of facts would not amount to fraud as held in the case of Hegarty v. Shine [ii] . In law of crime, it is said that fraud vitiates consent, if it induces mistake as to the real nature of the act done. Hence, in a case where the accused, a music teacher, induced the victim to engage in sexual intercourse with him on the pretext that the said sexual act would improve her vocals, the accused was held to be guilty of rape.

2. Breach of duty or negligence

The defence of volenti non fit injuria would not stand, if the act is due to a breach of statutory duty. Hence, an employer may not seek the defence of ‘volunti non fit injuria’ if he himself caused the injury suffered by the employee due to a statutory breach of duty.  Nevertheless, where the negligence or breach of statutory duty is on the part of the employee, who knowingly accepts the risk that follows from such breach and the employer is not guilty of negligence or breach of statutory duty, the defendant may seek the defence of ‘volenti non fit injuria’.

In case of negligence on the part of the defendant, his defence under this maxim would not hold. In Slater v. Clay Cross Co. Ltd [iii] , the plaintiff was hit by a train due to negligence on part of the defendant’s servant (driver of the train). The defendant had instructed their drivers to slowdown and blow a whistle while entering the tunnel in order to alert the people walking through the tunnel. Since the driver failed to do so, the plaintiff suffered injuries. The court held the defendant to be liable.

3. Consent Obtained Under Compulsion

In Bowater v. Rowley Regis Corporation [iv] , the court held that “a man cannot be said to be truly willing unless he is in a position to choose freely, and freedom of choice predicates, not only full knowledge of the circumstances on which the exercise of choice is conditional, so that he may be able to choose wisely, but the absence of any feeling of constraint so that nothing shall interfere with the freedom of his will.” A person cannot be said to give consent when he is compelled by some circumstances to take up risky work which he would not have done if he had a free choice. For instance, a labourer may undertake a particular task which he otherwise would not have undertaken. In such situations, the labourer takes up such tasks in order to save his job as he fears that the refusal to comply and take up tasks would deem him unfit for the job in the eyes of his employer and his job would be at stake.

4. Knowledge alone does not equate Consent

If the defendant wishes to apply this maxim, he must prove that the plaintiff knew about the risk and that he agreed to suffer the harm or risk. These two form the pre requisites for claiming this defence. They are the key elements for claiming this defence. These two elements go hand in hand and the absence of the second condition would deem the first condition as an inconclusive defence. Therefore, simply proving that the plaintiff had knowledge of the harm would not be sufficient.

Case Laws on Volenti Non Fit Injuria

Smith v. baker [v].

In this case, the plaintiff was employed as a workman by the defendants for the purpose of cutting a rock. The stones were being moved from one side to another with the help of a crane. The rocks would move above the plaintiff’s head. The plaintiff had once informed the crane driver about the hazards of this activity. One day while working the drill, one of the stones that were being moved, fell on the plaintiff’s head and he suffered injuries. The plaintiff was given no warning whatsoever before transporting the stone.

• Whether or not the plaintiff consented to the risk?
• Whether or not there was any evidence of negligence?

In this case, the plaintiff pleaded the defence of volenti no fit injuria, but this was rejected by the court as mere knowledge of risk on the part of the plaintiff would not suffice in the present case. Lord Halsbury said that the mere knowledge of the risk would not mandatorily implicate consent to the risk. Furthermore, while giving the judgement, Lord Herschell was of the opinion that volenti non fit injuria would not apply to such a case, and that the employer could not invoke it to save himself from the liability of his wrongdoing. He was of the belief that there was certain negligence on the part of the defendant and mere knowledge of risk by the plaintiff would not negate such negligence.

Dann v. Hamilton [vi]

The plaintiff chose to travel by a car in spite of knowing about the driver’s drunken state. The driver was driving negligently which resulted in an accident. The plaintiff then sued the personal representatives of the driver. They pleaded the defence under this maxim.

Whether the defence of volenti non fit injuria be pleaded where the plaintiff voluntarily accepted the risk of travelling with a drunk driver?

The court rejected the argument made under the defence of volenti non fit injuria and held the defendants liable. In the view of the court, this defence was not applicable because the degree of intoxication of the driver was not to such an extent where it could be of grave danger.

Bowater v. Rowley Regis Corporation [vii]

The plaintiff was a cart driver and was asked by the defendant’s foreman to drive a horse. They both knew that the horse could bolt due to past incidents. Hence, the plaintiff protested but then followed the order. As expected, the horse bolted and the plaintiff suffered an injury.

Could the defendants plead the defence of volenti non fit injuria and avoid liability?

The court held that volenti non fit injuria could not be applied as the defendants were negligent. In fact, Goddard L.J made an observation that in case of master-servant relation, this maxim must be applied with caution. Subsequently, the plaintiff was entitled to recover.

Imperial Chemical Industries Ltd v Shatwell [viii]

The two brothers (employees), working for the defendant, tried to test detonators without taking prior permission of the employers. The brothers were also in contravention of statutory provisions and the employer’s orders in this matter. This caused them to sustain injuries. They brough an action against the defendants and the defendants pleaded the defence under volenti non fit injuria.

Whether employers could seek the defence of volenti non fit injuria when the employees expressly disobeyed the instructions and would they be liable?

The court held that an employer can plead the defence of volenti non fit injuria if the employee neglects the instructions and possesses knowledge about the risk and the same was applied in this case

Under the law of tort, there are several defences available and the doctrine of Volenti Non Fit Injuria stands out as an excellent defence. Notwithstanding that, there are certain limitations to the applicability of this defence. Rescue cases being one of them. Therefore, when the plaintiff takes up the risk of saving somebody else, the defendant cannot plead the defence of Volenti Non Fit Injuria. This defence can be availed only when the defendant is actually not guilty of any offence as the consent was communicated by the plaintiff. While construing this maxim, the courts must make sure that the two essential elements i.e., knowledge of the risk along with agreement to suffer such risk are present and have been proved by the defendants. Unless and until the defendants prove the presence of both the essential elements, they must not be given the leeway to escape liability.

• The Law of Torts by R.K. Bangia.
• The Law of Torts by Ratanlal and Dheerajlal.
• https://mylegalpartner.wordpress.com/tag/thomas-v-quartermaine/
• https://www.lawteacher.net/cases/dann-v-hamilton.php
• https://simplestudying.com/bowater-v-rowley-regis-corp-1944-k-b-476/
• https://www.lawteacher.net/cases/imperial-chemical-industries-v-shatwell.php
• https://lawtimesjournal.in/volenti-non-fit-injuria/
• https://www.law.cornell.edu/wex/volenti_non_fit_injuria

[i] Lakshmi Rajan v. Malar Hospital Ltd. III (1998) CPJ 586 (Tamil Nadu SCDRC)

[ii] Hegarty v. Shine, (1878) 2 L.R. Ir. 273

[iii] Slater v. Clay Cross Co. Ltd, (1956) 2 All E.R. 625

[iv] Bowater v. Rowley Regis Corporation, (1944) K.B. 476

[v] Smith v. Baker , (1891) A.C. 325.

[vi] Dann v. Hamilton, (1939) 1 K.B 509

[vii] Bowater v. Rowley Regis Corporation, (1944) K.B. 476

[viii] Imperial Chemical Industries Ltd v Shatwell, (1965) AC 656

Also Read – Right of Private Defence in India

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Aayushi Mittra

Aayushi Mittra is a Fifth Year Law Student pursuing 5 Years BLS LLB at SVKM's Pravin Gandhi College of Law. Securing AIR 18 in CS Foundation exams, she wishes to not restrict herself to the ambit of General Corporate Laws, but also wishes to explore various other fields of law like IPR, Cyber Law, Family Law, Capital Markets & Securities Laws and Sports Law. Apart from academics, she immensely enjoys participating in Drafting competitions, MUNs and Article Writing competitions.

volenti non fit injuria

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Volenti non fit injuria is Latin for “to a willing person, it is not a wrong.” This legal maxim holds that a person who knowingly and voluntarily risks danger cannot recover for any resulting injury . This principle was the common-law basis for the assumption of the risk doctrine. 

[Last updated in August of 2021 by the Wex Definitions Team ]

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Volenti Non Fit Injuria: Legal Concept Explained

We can all agree that legal concepts like "Volenti Non Fit Injuria" can be complex and confusing.

But understanding this key legal maxim doesn't have to be so difficult. In this post, you'll get a clear, practical explanation of Volenti Non Fit Injuria, including what it means, when it applies, and how it has been used as a legal defense.

You'll see real-world examples of Volenti Non Fit Injuria cases, learn the key elements required to establish this defense, and be able to distinguish Volenti from other related legal doctrines. By the end, you'll have a solid grasp of this critical negligence defense and its viability in court.

Understanding the Legal Maxim 'Volenti Non Fit Injuria'

Volenti non fit injuria is a Latin legal maxim meaning "to a willing person, no injury is done." It is a common law defence that can be used in tort law cases.

The principle behind volenti non fit injuria is that a person who willingly places themselves in a risky situation accepts that an injury might occur. By assuming this risk, they cannot then sue if an accident does happen.

So in situations where volenti non fit injuria is successfully argued, the defendant would not be liable for negligence as the claimant consented to the risks involved.

Volenti Non Fit Injuria Translation and Pronunciation

Volenti non fit injuria literally translates from Latin to English as:

"To a willing person, no injury is done."

It is pronounced:

vo-LEN-tee non fit in-JOOR-ee-ah

Volenti Meaning and Legal Relevance

As described above, volenti refers to a willing person who consents to a risky activity. By doing so, they assume responsibility for any resulting injury.

This legal maxim emerged from Roman law but became an established defence in English tort law. It is most commonly used in claims involving sports injuries or dangerous activities.

The key relevance of volenti non fit injuria is that it can provide a complete defence. If successfully argued, the defendant would bear no liability for any negligence on their part.

The Role of Consent and Assumption of Risk

Consent and assumption of risk are integral to the volenti defence.

For volenti to apply, the claimant must have fully consented to the activity while understanding and accepting the risks involved. This informed consent and voluntary assumption of risk provides the basis for the defence.

So if an accident does occur, the claimant cannot then sue for compensation. Their prior agreement to participate, acknowledging the dangers present, essentially waives their right to bring a negligence claim later on.

Ultimately, volenti non fit injuria asserts that people should take personal responsibility when they willingly engage in inherently risky pursuits, rather than trying to blame others if it goes wrong.

What is the case of Volenti non fit iniuria?

The legal doctrine of volenti non fit injuria, commonly translated as "to a willing person, injury is not done", establishes that a person who willingly places themselves in a position where harm might result cannot bring a claim against another party for any resulting damage. This is based on the principle that by consenting to undertake an action despite awareness of the risks, the injured party has implicitly agreed to waive their right to sue for any injuries sustained.

The doctrine has its origins in Roman law but became widely adopted in English common law. It functions as a complete defence in tort lawsuits involving negligence claims. If successfully argued by the defendant, it results in the plaintiff being barred from compensation even if the defendant is proven negligent.

For volenti non fit injuria to apply, several key elements must be satisfied:

• The plaintiff had actual knowledge of the risk and willingly assumed it
• The risk was sufficiently clear and unambiguous
• The plaintiff had adequate capacity to make the decision with full autonomy

The rationale is that it would be unfair to hold the defendant legally responsible when the plaintiff made an informed choice to encounter the risk. However, the plaintiff must have consented to the specific risk that caused the damage rather than just general awareness of potential dangers.

The doctrine continues to be frequently cited in lawsuits related to dangerous sports and activities. It also applies to some workplace accident litigation when risk factors were evident to the employee. Overall, volenti non fit injuria remains an important negligence defence in tort law.

What is the defense of Volenti non fit iniuria?

Volenti non fit injuria is a common law defense that means "to one who is willing, no harm is done." It is used in tort law cases where a plaintiff (the person bringing the lawsuit) has knowingly and willingly put themselves in a risky situation and thus assumed the risk of injury.

The key elements that need to be proven for this defense to succeed are:

• The plaintiff had actual knowledge of the risk and fully appreciated its nature and extent
• The plaintiff voluntarily agreed to encounter that risk

For example, if someone voluntarily participates in a dangerous sport like skydiving and gets injured, they typically cannot sue for damages since they willingly and knowingly assumed the risks involved.

So in summary, volenti non fit injuria provides a complete defense when it can be shown that the plaintiff knew about and accepted the risk that resulted in their injury. It is based on the legal and ethical principle that one cannot complain about self-inflicted harm that was understood and agreed to beforehand.

Which case did the defence of volenti non fit injuria succeed?

The defence of volenti non fit injuria, meaning "to a willing person, injury is not done", has succeeded in several notable cases in English tort law. Here is a brief overview of three key cases where this defence was successfully raised:

In Haynes v Harwood [1935] 1 KB 146, the plaintiff was injured during a game of cards when the defendant jokingly threw a small bun at him. The court held that the plaintiff had voluntarily consented to participate in the game and assumed the risk.

In Cutler v United Dairies [1933] 2 KB 297, the plaintiff was a milk roundsman who continued working despite knowing his horse was vicious. He was kicked and injured by the horse. The court ruled that he voluntarily assumed the risk by continuing to work with a known danger.

In Nettleship v Weston [1971] 2 QB 691, a learner driver injured her instructor. The court held that as an instructor, he had consented to take the risk of injury from a learner's potential mistakes.

So in all three cases, the defence succeeded because the plaintiffs had willingly assumed obvious risks that resulted in their injuries. The courts deemed that since they consented to face those dangers, they could not later seek damages.

What is the difference between contributory negligence and volenti non fit injuria?

Volenti non fit injuria is a complete defence in tort law, while contributory negligence only reduces the amount of damages a plaintiff can recover.

Volenti Non Fit Injuria

Volenti non fit injuria means "to a willing person, no injury is done." It is a full defence that bars a plaintiff from any recovery if they voluntarily assumed the risk that resulted in their injury.

For volenti non fit injuria to apply, the plaintiff must have:

• Full knowledge of the nature and extent of the risk they were undertaking
• Voluntarily agreed to accept that risk

If proven, it acts as a complete defence, meaning the plaintiff cannot recover any damages from the defendant, even if the defendant was negligent.

Contributory Negligence

Contributory negligence occurs when the plaintiff's own negligence contributed to their loss or injury. For example, if a plaintiff failed to take reasonable precautions to protect themselves, and this failure contributed to their injury.

Contributory negligence is not a complete defence. It only reduces the amount of damages the plaintiff can recover in proportion to their degree of fault. So if a plaintiff was found 25% responsible for their own injury due to their contributory negligence, their damage award would be reduced by 25%.

The key difference is volenti non fit injuria bars all recovery, while contributory negligence only reduces damages proportionate to the plaintiff's fault.

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The doctrine of volenti non fit injuria in negligence defences.

The legal doctrine of Volenti non fit injuria, often referred to by its Latin name, establishes consent or assumption of risk as a defence in negligence cases. Translating to "no injury is done to one who consents," it means that one cannot bring a claim if they willingly placed themselves in a risky situation. However, its applicability as a full or partial defence is complex.

Is Volenti Non Fit Injuria a Complete Defence?

Volenti non fit injuria can potentially act as a complete defence in English tort law, eliminating liability for negligence. However, for it to apply, the plaintiff must have fully understood and voluntarily accepted the risk that resulted in damage or injury. If established, it can completely bar a claim.

However, courts increasingly consider it a partial defence used alongside contributory negligence principles to reduce damages. This accounts for negligence on both sides rather than eliminating liability. So in practice, while theoretically a full defence, Volenti often combines with other defences.

Volenti Non Fit Injuria vs. Comparative Negligence

Comparative negligence differs from Volenti in that it apportions percentages of fault rather than barring claims. If both parties acted negligently, damages get reduced based on each party's contribution to the damage. However, if the plaintiff fully comprehended and accepted the risk under Volenti, it can still completely bar a claim regardless of the defendant's negligence.

So while comparative negligence reduces damages proportional to fault, Volenti focuses strictly on the plaintiff's actions without considering the defendant's negligence. In some cases, Volenti and comparative negligence may apply concurrently to account for consent alongside shared liability.

Acts of the Claimant and Consent

For Volenti to apply as a defence, the plaintiff's actions must demonstrate full awareness and voluntary acceptance of the particular risk. This consent eliminates the duty of care and prevents claiming compensation for associated damage.

Reckless conduct itself does not necessarily indicate consent. Plaintiffs must have actual knowledge of the specific risk that caused the injury and willingly encounter it for Volenti to succeed as a defence. Simply acting negligently does not amount to consent. So the applicability of the Volenti doctrine heavily emphasizes the claimant's state of mind and scope of consent.

Volenti Non Fit Injuria in Specific Contexts

Explore the application of the Volenti doctrine in various legal contexts, such as sports and property law.

Volenti Non Fit Injuria in Sports

The Volenti non fit injuria defence is commonly used in cases involving injuries sustained during sporting activities. Participants in sports are generally deemed to have consented to the inherent risks involved. However, the consent is not absolute. The defence applies only to foreseeable risks that are an accepted part of the sport. Reckless or intentional acts that cause injury may still lead to liability.

Factors considered by courts include the rules of the sport, the skill level of participants, safety equipment used, and more. For example, in Haynes v Harwood, a professional jockey was denied damages for injuries suffered during a horse race, as he was aware of and accepted the risks. However, overly dangerous conduct may exceed the scope of consent.

Volenti Non Fit Injuria Occupiers' Liability

The Volenti doctrine can interact with the Occupiers’ Liability Act 1984 in premises liability cases. Where a visitor engages in an activity with full knowledge and awareness of risks on an occupier’s premises, they may be deemed to have consented to potential injury.

However, s.2(3) of the Act states that warning signs do not, in themselves, exclude an occupier’s duty of care. The visitor’s consent must be informed and voluntary. If occupiers fail to adequately warn visitors or mitigate risks, Volenti may not apply as a defence.

Employment and Volenti Non Fit Injuria

In the employment context, the Volenti defence is restricted in its application. Employers have a duty of care to provide a safe working environment. Employees do not consent to excessive risks merely by agreeing to work. However, if employees voluntarily engage in inherently high-risk activities against advice, the defence may succeed.

Overall, the applicability of Volenti non fit injuria depends heavily on the specific facts and context of each case. It is not an absolute defence but rather requires judges to conduct a nuanced evaluation of what risks were reasonably foreseeable and consented to by claimants.

Establishing the Defence: Key Elements and Burden of Proof

To successfully establish the Volenti defence, the defendant must prove certain key elements. These include:

Proving Informed Consent

The defendant must show that the plaintiff had full knowledge of the risk and voluntarily consented to it. This means proving:

• The plaintiff was aware of the nature and extent of the risk
• The risk was clear and unambiguous
• The plaintiff voluntarily agreed to accept the risk

The defendant bears the burden of proving informed consent. They must show consent was given with full appreciation of the dangers.

Demonstrating Voluntary Assumption of Risk

The defendant must also demonstrate the plaintiff voluntarily assumed the risk that resulted in damage. Key factors in determining voluntariness include:

• Absence of coercion or pressure
• Whether a reasonable alternative was available
• The plaintiff's age and capacity

If consent was obtained by force or coercion, the defence will fail.

Exclusion of Coercion in Consent

Consent must be given freely and voluntarily, without coercion or duress. If the plaintiff felt obliged to accept the risk, the defence will not succeed. Factors considered include:

• Imbalances of power in the relationship
• Whether consent was gained through deception
• If refusing consent had negative consequences

Coerced consent invalidates the defence. The defendant must prove consent was given entirely freely.

Legal Precedents and Landmark Cases

Review significant cases that have shaped the understanding and application of the Volenti non fit injuria defence.

Case Analysis: Haynes v. Harwood

The Haynes v. Harwood case in 1935 established that the defence of volenti non fit injuria applies even where the plaintiff is not fully aware of the nature or extent of the risk. In this case, the plaintiff (Haynes) knew there was some risk of injury from participating in a dangerous sport but did not have full knowledge of the risk. However, the court still held that by willingly participating, he had accepted the risk and could not sue for damages.

This precedent widened the scope of the volenti defence by not requiring plaintiffs to have complete understanding of the risks. It meant that as long as a reasonable person would have recognized the existence of some danger, that is enough for volenti to potentially apply.

Case Analysis: Nettleship v. Weston

The 1971 case of Nettleship v. Weston was significant in establishing that even learners and beginners could be covered under volenti non fit injuria. In this case, the plaintiff (Nettleship) allowed the defendant (Weston), a complete novice at driving, to drive a car. The defendant crashed the car, injuring the plaintiff.

The court ruled that despite Weston's inexperience, Nettleship had willingly accepted the obvious risks of allowing an unskilled driver to operate the vehicle. By consenting to ride with Weston, Nettleship took responsibility for any potential injuries.

This expanded the defence to apply even when the defendant lacks skill, experience or knowledge, as long as the plaintiff understands the general nature of the risks involved.

Case Analysis: Tomlinson v Congleton Borough Council

In the 2003 Tomlinson v Congleton Borough Council case, the court determined that the volenti principle only applies to risks that are inherent to an activity. If the injury arises from a danger outside the ordinary risks, consent can not be inferred.

In this case, Tomlinson suffered catastrophic brain injuries after diving into a lake whose depth he did not realize. The court ruled that this hidden danger went beyond the typical risks of swimming and diving. By distinguishing between inherent and extraneous risks, the precedent narrowed the scope of volenti non fit injuria.

Case Analysis: Ratcliff v McConnell

The 1999 case of Ratcliff v McConnell introduced the concept of ���comparative knowledge” in determining whether volenti applies. It established that the plaintiff must have actual knowledge of the particular risk that caused the injury - not just general awareness of some danger.

In this incident, Ratcliff (an experienced horse rider) was injured after a horse bolted out of control with McConnell (a novice rider) on board. The court ruled that despite Ratcliff's general experience with horses, she did not have full understanding of the specific risk posed by McConnell's inability to control the horse.

This added a nuanced comparative knowledge assessment in applying volenti, requiring plaintiffs to be informed of the precise danger that manifested, even if they recognized broader risks.

Comparative Analysis with Other Legal Doctrines and Principles

The Volenti non fit injuria principle establishes that a person who willingly places themselves in a risky situation cannot sue for any resulting injuries. This legal doctrine has important relationships with other core principles in tort law.

Distinguishing Volenti from Contributory Negligence

Contributory negligence suggests a plaintiff's failure to exercise reasonable care contributed to their injuries. However, it only reduces damages proportionately. Volenti provides a complete defence by barring claims entirely. Further, Volenti applies even without negligence by the defendant. The key distinction is voluntary assumption of risk under Volenti versus carelessness by the plaintiff under contributory negligence.

Volenti and the Defence of Consent

Consent provides a defence against battery and similar intentional torts. The plaintiff's permission absolves liability. Similarly, Volenti bars claims if the plaintiff accepted known risks. However, Volenti only covers injuries from inherent dangers in an activity. Separately, consent applies to intended contact by the defendant regardless of inherent risks.

The Interplay between Volenti and Occupiers' Liability

The Occupiers' Liability Act 1984 limits property owners' duty of care to visitors who willingly accept risks. This aligns with Volenti. However, the Occupiers' Liability Act only reduces liability. Volenti completely eliminates claims. Further, Occupiers' Liability relies on posted warnings, whereas Volenti focuses on plaintiffs' actual awareness of dangers.

In summary, while Volenti shares aspects with other defences, its scope is distinct in barring injury claims when plaintiffs knowingly and voluntarily assume inherent risks in activities. Understanding its intersections and departures from related legal principles is key to applying Volenti appropriately.

Conclusion: The Viability of Volenti Non Fit Injuria as a Negligence Defence

The Volenti non fit injuria doctrine establishes that plaintiffs who willingly assume the risk of harm cannot sue for any resulting injuries. While a potentially useful negligence defence, its applicability depends on the specific circumstances of each case.

Recapitulation of the Volenti Doctrine

The key principles of Volenti non fit injuria include:

It applies when the plaintiff has willfully accepted a known risk of harm. This consent can be express or implied.

The defense argues the plaintiff cannot sue for injuries resulting from risks they agreed to take on.

Volenti has been applied in cases involving sports injuries, dangerous jobs, and hazardous premises.

There are limitations around minors, intoxication, and what constitutes valid consent.

Assessing the Strength of Volenti as a Defence

When applicable, Volenti can fully absolve defendants of liability. However, its viability as a defence depends on several factors:

Meeting the burden of proof for valid consent and awareness of risks.

The reasonableness of plaintiff's actions given the circumstances.

Whether contributory negligence or comparative negligence doctrines apply.

Ultimately, Volenti non fit injuria remains situationally useful but hard to guarantee as an airtight defence against negligence claims.

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IPSA LOQUITUR

Tort: Volenti Non Fit Injuria

Volenti non fit injuria, establishing the defence, the requirements.

To establish the defence of  volenti non fit injuria , the defendant must show that:

• The claimant had fully-informed knowledge about the risk; and
• The claimant voluntarily agreed to waive their right to sue if the risk manifested, or otherwise indicated that they assumed the risk themselves and so would not sue:  Nettleship v Weston  [1971] 2 QB 691.

Ordinarily, an express indication that the claimant is waiving their right to sue is needed. However, the courts will sometimes infer that the claimant has voluntarily assumed responsibility for their risk from their actions.

Fully-Informed Knowledge

The claimant must be capable of appreciating any obvious risks and understanding what he is doing. This may not be the case if he is too drunk or incapacitated. It is not enough that the claimant is merely disinhibited, however:  Morris v Murray  [1991] 2 QB 6. 

It does not matter that the claimant, having understood the risk, thought that it would nor happen to him:  Imperial Chemical Industries Ltd v Shatwell  [1965] AC 656. 

The courts are generally reluctant to imply a waiver, without express agreement, from the mere fact that the claimant engaged in a risky activity with knowledge of the risk:  Smith v Baker  [1891] AC 325.  However, the court may infer a waiver in cases based on the following factors:

If their employer ordered the claimant not to perform the action, whether serious measures were taken to enforce the order or the claimant was under pressure or encouragement from a superior to do the act:  Imperial Chemical Industries Ltd v Shatwell  [1965] AC 656.

The claimant incited, co-operated or assisted the defendant in creating the risk (with knowledge that what he was doing was risky): Morris v Murray [1991] 2 QB 6.

There was no need (beyond the claimant’s entertainment) or compulsion for the claimant to do the risky act: Morris v Murray [1991] 2 QB 6.

The risk was serious and obvious: Morris v Murray [1991] 2 QB 6.

Possibly where there was no social or physical inconvenience in avoiding the situation, though this is a weak factor which must be supported by others:  Dann v Hamilton [1939] KB 509.

This will be a determination based on degree and the facts of the particular case.

When Does the Defence Not Apply?

Protective duties.

The defence of  volenti non fit injuria  cannot be relied on where the purpose of the defendant’s duty was to protect the claimant from doing the relevant risky action:  Kirkham v Chief Constable of Greater Manchester  [1990] 2 QB 283.

Motor Vehicle Accidents

Volenti non fit injuria  is unavailable where the claimant is the passenger in a motor vehicle accident: Road Traffic Act 1988 , s 149(3). 

Volenti Non Fit Injuria Quiz

Test yourself on the principles of volenti non fit injuria .

What factors are relevant to whether the claimant waived liability for risk for the purposes of volenti non fit injuria ? (Five answers)

Incorrect .

What two matters must the defendant show to establish the defence of volenti non fit injuria ?

Incorrect . See Nettleship v Weston.

When is the defence of volenti non fit injuria unavailable to the defendant?

Can a defendant rely on the defence of volenti non fit injuria if the claimant understood the risk but was disinhibited by drugs or drink?

Incorrect . Drink or drugs are only relevant if they impair the claimant's ability to understand or appreciate the risk: Morris v Murray.

What is the effect of establishing the defence of volenti non fit injuria ?

Incorrect . Volenti non fit injuria is a complete defence.

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volenti non fit injuria

• A Latin principle stating that someone who willingly enters a risky situation cannot claim damages for any harm that results
• According to the principle of volenti non fit injuria, he could not sue for injuries from the bull-riding competition because he knowingly participated.
• She attempted to sue the company for stress, but her complaint was dismissed under the rule of volenti non fit injuria, as she had willingly taken on the high-pressure job.
• The court ruled volenti non fit injuria and therefore, since he knew the risks of extreme sports, he could not claim for the injuries he received.
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Volenti Non Fit Injuria – A Critical Analysis

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Student at CMR University, School of Legal Studies, Bengaluru, India.

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The term "tort" comes from the Latin word "tortum," which literally means "to twist." It refers to twisted, deformed, or illegal behaviour, as well as behaviour that is not straight. The tort law that is currently used in India is based on English law that has been adapted to Indian situations and amended by Indian legislative acts. Its beginnings may be traced back to the creation of British courts in India. The harm that is caused willingly does not establish a legal injury and therefore is not actionable. This notion is encapsulated in the maxim volenti non fit injuria, which directly translates to "anything which a man consents to cannot be reported of as an injury." The theory is only applicable to the risk that a reasonable person would have accepted as a result of his or her activities. Voluntary harm does not create a legal injury and is thus not actionable. A right that has been freely relinquished cannot be enforced. In this paper, the researcher will be discussing the application of maxim at different places during covid – 19. Furthermore, it also emphasises the various elements of this maxim, its limitations, and its impact on laws with different interpretations through each case law. In tort law, the defence of volenti non-fit injuria is one that has a restricted scope. At times, the defendant's carelessness may preclude the employment of the defence of volenti non-fit injuria. Other times, the extent of the defence is constrained by other limits outlined earlier in the article. Lastly, this paper suggests the wider clarification on the assent of knowledge in this maxim.

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International Journal of Law Management and Humanities, Volume 5, Issue 4, Page 184 - 189

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volenti non fit injuria

• Law of Torts Subject-wise Law Notes
• April 22, 2023

The principle of volenti non fit injuria is a fundamental doctrine in tort law that applies in situations where a person willingly exposes themselves to a known danger or harm. It is based on the concept that if a person voluntarily assumes the risk associated with an activity, they cannot later claim compensation for any injury or harm that results from that activity.

Meaning of  volenti non fit injuria

“Volenti non fit injuria” is a Latin legal term that means “to a willing person, no injury is done”. In the context of torts law in India, the principle of volenti non fit injuria means that if a person voluntarily agrees to accept the risks associated with a particular activity, then they cannot later claim compensation for any harm or injury that results from that activity. volenti non fit injuria is one of the general defences in law of torts .

For example, if a person participates in a dangerous sport like skydiving or bungee jumping, and they sign a waiver acknowledging the risks involved, then they may not be able to sue for damages if they are injured during the activity. This is because they have voluntarily assumed the risk and waived their right to seek compensation.

In the case of Hall v. Brooklands Auto Racing Club , the plaintiff attended a car race where two vehicles collided. As a result of the collision, one of the cars flew into the audience, injuring the plaintiff who was in attendance. The defence of volenti non fit injuria was raised, arguing that the plaintiff had voluntarily assumed the risk of such harm by attending the race.

However, there are certain exceptions to the principle of volenti non fit injuria, such as cases where the harm was caused by deliberate or reckless conduct, or where there was a breach of statutory duty.

Essentials of volenti non fit injuria

There must be a voluntary acceptance of risk.

This means that the person must have had knowledge of the risk associated with the activity and must have willingly accepted that risk. For example, if a person participates in a dangerous sport like rock climbing or scuba diving, they are assumed to have accepted the risk associated with those activities.

The acceptance of risk must be informed

This means that the person must have been fully aware of the nature and extent of the risks involved in the activity. This can be done through disclosure, warning, or waiver. For example, a person who signs a waiver acknowledging the risks associated with an activity is considered to have given informed consent to the risks.

The person must have had the capacity to give consent

This means that the person must have been of sound mind and capable of making an informed decision to accept the risk. For example, a person under the influence of drugs or alcohol may not have had the capacity to give informed consent to the risks associated with an activity.

The acceptance of risk must be voluntary

This means that the person must not have been coerced or forced to participate in the activity. For example, if a person is forced to participate in a dangerous activity against their will, they cannot be said to have accepted the risk associated with that activity.

The risk must be a legal risk 

This means that the risk must be one that is recognized by law as being acceptable. For example, a person who voluntarily participates in a boxing match cannot later claim compensation for any injuries sustained during the match, as boxing is a legally recognized sport.

The risk must be proportionate to the benefit obtained

This means that the benefit obtained from the activity must be greater than the risk involved. For example, if a person risks injury by participating in a sport, but the benefit obtained is personal satisfaction or enjoyment, then the risk may be considered disproportionate to the benefit.

Consent in volenti non fit injuria cases

One limitation is that the principle may not apply if the person was not fully aware of the risks involved in the activity. For example, if a person is not given adequate warning or disclosure about the risks associated with a particular activity, they may not have given informed consent to those risks. In such cases, the principle of volenti non fit injuria may not be applicable, and the person may be able to claim compensation for any harm or injury suffered.

Another limitation is that the principle may not apply if the person was coerced or forced to participate in the activity . For example, if a person is threatened with physical harm if they do not participate in a dangerous activity, they cannot be said to have willingly assumed the risk associated with that activity. In such cases, the principle of volenti non fit injuria may not be applicable, and the person may be able to claim compensation for any harm or injury suffered.

A further limitation is that the principle may not apply if the p erson was not capable of giving informed consent to the risks involved in the activity. For example, if a person is mentally incapacitated or under the influence of drugs or alcohol, they may not be capable of making an informed decision to assume the risks associated with a particular activity. In such cases, the principle of volenti non fit injuria may not be applicable, and the person may be able to claim compensation for any harm or injury suffered.

Additionally, the principle may not apply if the harm suffered by the person was not a foreseeable consequence of the activity. For example, if a person is injured in a car accident while participating in a legal street race, they may be able to claim compensation for their injuries, as the harm suffered was not a foreseeable consequence of the activity. In such cases, the principle of volenti non fit injuria may not be applicable, and the person may be able to claim compensation for any harm or injury suffered.

Furthermore, the principle may not apply if the person was acting under a mistake or misapprehension of fact. For example, if a person participates in an activity believing that it is safe, but later learns that it is not, they may be able to claim compensation for any harm or injury suffered. In such cases, the principle of volenti non fit injuria may not be applicable, and the person may be able to claim compensation for any harm or injury suffered.

volenti non fit injuria cases

In Ravindra Padmanabhan (Dr.) v. Lakshmi Rajan and Anr. , the plaintiff underwent surgery to remove a tumour on her breast. However, the doctor also removed her uterus during the procedure, despite it being unrelated to the tumour. The court held the defendants liable, and as such, rejected the defence of volenti non fit injuria.

Similarly, in the case of Padmavati v. Dugganaika , the plaintiffs had requested a ride in the defendants’ jeep. While travelling in the vehicle, one of the wheel screws came loose, causing the jeep to crash and resulting in the death of one of the plaintiffs. The court held that the defence of volenti non fit injuria would apply, and thus, the defendants were not liable, as the plaintiffs had assumed the risk of potential injury by riding in the jeep.

Limitations of volenti non fit injuria

The principle of volenti non fit injuria is a fundamental doctrine in tort law that applies in situations where a person willingly exposes themselves to a known danger or harm. It is based on the concept that if a person voluntarily assumes the risk associated with an activity, they cannot later claim compensation for any injury or harm that results from that activity. However, there are limitations to the application of this principle in certain situations.

Rescue Cases

The defence referred to in this question is likely the doctrine of volenti non fit injuria, which is a legal principle that states that a person who voluntarily assumes the risk of harm cannot subsequently claim damages for that harm.

Rescue cases are generally considered to be an exception to this defence. This is because, in rescue cases, the person who enters a dangerous situation to save another person is not considered to have voluntarily assumed the risk of harm. Instead, the rescuer’s actions are seen as reasonable and necessary, and they are typically not barred from recovering damages for any injuries they sustain.

An example of a rescue case that illustrates this principle is a situation where a bystander jumps into a river to save a drowning child. In this scenario, the bystander is not considered to have voluntarily assumed the risk of harm, as their actions were motivated by a desire to help another person. If the bystander is injured during the rescue attempt, they may be able to bring a claim for damages against any parties who were responsible for the dangerous situation, such as the owner of the property or the person who created the hazard.

Another example of a rescue case might involve a firefighter who enters a burning building to save people trapped inside. In this scenario, the firefighter’s actions are also considered to be reasonable and necessary, and they would not be barred from bringing a claim for damages if they were injured while performing their duties.

In both of these examples, the rescuers are not considered to have assumed the risk of harm, as their actions were taken in order to save another person’s life or prevent harm. As such, they would generally not be precluded from recovering damages based on the doctrine of volenti non fit injuria.

The case of Haynes v. Harwood (1935), 1 KB 146 , involved a servant of the defendant who brought two horses into town near a police station, leaving them unattended to perform other work. When the horses became agitated by children, they broke free. The plaintiff, a police officer, attempted to stop the horses and was injured in the process. He subsequently brought a case against the owner for damages. The court found the defendant liable, as the defence of volenti non fit injuria did not apply in this rescue scenario.

Illegal Acts

The legal principle referred to in this question is likely the doctrine of volenti non fit injuria, which is a defence in tort law that holds that a person who voluntarily assumes the risk of harm cannot subsequently claim damages for that harm.

One exception to the application of this defence is when the harm that results from the plaintiff’s conduct is the result of an illegal act. In such cases, the defendant may still be held liable for any injuries that the plaintiff suffers, regardless of whether the plaintiff voluntarily assumed the risk of harm.

For example, suppose a person engages in illegal street racing and crashes their car, sustaining injuries as a result. The other driver involved in the accident may still be held liable for any injuries that the illegal street racer suffers, even if the illegal street racer voluntarily assumed the risk of harm by engaging in illegal activity. This is because the defendant’s conduct in engaging in street racing was also illegal and was a contributing factor to the accident.

Another example of this exception could be where a person trespasses on another’s property and is injured by a hazard on the property. In this scenario, the defendant may still be held liable for any injuries that the trespasser suffers, even if the trespasser voluntarily assumed the risk of harm by entering the property without permission. This is because the defendant’s failure to ensure the safety of their property, despite knowing that trespassers might enter, was a contributing factor to the injury.

Negligence of the defendant

One exception to the application of this defence is when the harm suffered by the plaintiff is a result of the defendant’s own negligence. If the defendant’s negligence contributes to the plaintiff’s injury, the plaintiff may still be able to recover damages, even if they voluntarily assumed the risk of harm.

For example, suppose a person agrees to go bungee jumping and signs a waiver acknowledging the risks of the activity. If the bungee jumping company fails to properly secure the equipment, causing the person to fall and sustain injuries, the company may be liable for the person’s injuries, even if the person voluntarily assumed the risk of harm. This is because the company’s negligence in failing to properly secure the equipment was a contributing factor to the person’s injury.

Similarly, if a person agrees to participate in a contact sport and signs a waiver acknowledging the risks of injury, but the opposing team engages in illegal or reckless conduct, causing the person to sustain injuries, the opposing team may be liable for the person’s injuries, even if the person voluntarily assumed the risk of harm. This is because the opposing team’s negligence or intentional misconduct was a contributing factor to the person’s injury.

Volenti Non Fit Injuria And Contributory Negligence

Volenti non fit injuria and contributory negligence are two different legal concepts in tort law, although they are sometimes confused with each other. Both concepts relate to a plaintiff’s conduct in relation to their own injury, but they differ in their application and legal consequences.

Volenti non fit injuria is a defence that may be raised by a defendant in a tort action. It holds that a plaintiff who voluntarily assumes the risk of harm cannot subsequently claim damages for that harm. In other words, if a plaintiff knowingly and voluntarily undertakes an activity that carries a risk of harm and is injured as a result, they cannot hold another party liable for their injuries.

Contributory negligence, on the other hand, is a doctrine that can operate as a complete defence to a tort claim. It arises when the plaintiff’s own negligence contributes to their injury. If a plaintiff’s own negligence contributes to their injury, they may be barred from recovering any damages from the defendant.

The key distinction between the two concepts is that volenti non fit injuria involves the plaintiff’s voluntary assumption of a known risk, while contributory negligence involves the plaintiff’s failure to exercise reasonable care for their own safety.

For example, suppose a person goes skiing and signs a waiver acknowledging the risks of the activity, including the risk of collisions with other skiers. If the person is injured in a collision with another skier, they may not be able to recover damages from the other skier based on the defence of volenti non fit injuria, as they voluntarily assumed the risk of injury. However, if the person was not wearing a helmet at the time of the collision, they may also be found to have contributed to their own injuries through their own negligence, and may be barred from recovering damages from the other skier based on contributory negligence.

The doctrine of volenti non fit injuria is an important legal principle in tort law that limits a plaintiff’s ability to recover damages for the harm they voluntarily assumed. The doctrine applies where the plaintiff knowingly and voluntarily undertakes an activity that carries a risk of harm, and the harm suffered is a result of that activity. 

However, there are exceptions to this defence, including where the harm is a result of the defendant’s own negligence, where the plaintiff is acting to rescue another person, and where the activity in question is illegal. 

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Volenti Non Fit Injuria: Essentials And Exceptions

• There must be an express or implied consent to face the risk. The consent must be free. If the consent of the plaintiff is obtained by fraud, compulsion, or mistake induced by the defendant, then it is not consent and it does not act as a defence also.
• The injury or loss must not be caused by the wilful intention of the defendant.
• The defendant should not be negligent. If he is negligent, this doctrine is not applicable.
• This doctrine is not applicable to illegal acts, e.g., illegal gunfight, sword fight etc.
• This maxim is not applicable to rescue cases or cases of saving persons in danger.
• https://articles.manupatra.com/article-details/Volenti-Non-Fit-Injuria-An-Analysis
• https://thelegallock.com/volenti-non-fit-injuria-and-its-cases/
• https://lawcorner.in/volenti-non-fit-injuria/
• Law of Torts, Usha Jaganath Law Series
• https://lawsstudy.com/the-doctrine-of-volenti-non-fit-injuria-case-and-exception/
• https://desikaanoon.in/exceptions-to-the-principle-of-volenti-non-fit-injuria/

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Volenti non fit injuria - Concept, Meaning and Case Laws

Volenti non fit injuria – concept, meaning and case laws | overview introduction origin essential elements application of volenti non fit injuria burden of proof important case laws on volenti non fit injuria introduction 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… read more ».

Volenti non fit injuria – Concept, Meaning and Case Laws | Overview Introduction Origin Essential elements Application Of Volenti non fit injuria Burden of Proof Important Case Laws on Volenti non fit injuria Introduction 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,...

Volenti non fit injuria – Concept, Meaning and Case Laws | Overview

Introduction.

• Essential elements
• Application Of Volenti non fit injuria
• Burden of Proof
• Important Case Laws on Volenti non fit injuria

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 doctrine is not of recent origin but it is well connected with the newly born doctrine of informed consent , which originated only less than 30 years back in America. [1]

II. Essential elements

Consent to suffer the harm may be express or implied. An example of express consent is submitting to a surgical operation.

An example of implied consent is where a player or a spectator in the game of cricket or football is deemed to be agreeing to any hurt, which may be likely in the normal course of the game. [2] However, if there is a deliberate injury caused by another player or a spectator suffers injury due to negligent act of players, or if a surgeon negligently performs an operation, the defence of ‘ volenti ‘ cannot be pleaded. Thus, the act causing the harm must not go beyond the limit of what has been consented. Consent to operate on the left eye is not necessarily a consent to operate on the right.

This maxim speaks that a person can sue for the Injury for which he has expressly or impliedly assented. This means there is no ‘breach of a legal right against one who is a willing party’. In other words, it can be said that where the patient knows the risks involved in treatment and he knowingly consents to the risk, he can be set with the deface of “volenti non fit injuria” or assigned person of risk. A patient cannot enforce a right which he has voluntarily abandoned. [3] “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.

III. Application Of Volenti non fit injuria

The maxim has a double application: First, it applies to the intentional acts which would otherwise to tortuous , viz. Consent to physical harm which would otherwise be an assault; Secondly, it applies to consent to run the risk of accidental harm, which would otherwise be actionable as due to the negligence of the person who caused it, viz. a master is not liable for an injury inflicted on a servant who has undertaken the service knowing the risks incidental thereto. The maxim is based on the sound principles of justice and good sense. [4]

According to volenti non fit injuria, the patient who has voluntarily consented to run the risk, cannot claim for the injury caused by the act he has agreed to. But the defence can be pleaded successfully only when the plaintiff knew the nature and consequences of treatment which he took into account when he assumed the risk. Thus, the most important factor determining the applicability of maxim requires free and full consent i.e., informed consent of the plaintiff patient, not the knowledge .

Knowledge of the risk is only one of the elements, which is to be taken into account along with other circumstances, to determine whether the plaintiff has agreed to take the risk upon himself. [5]

The “volenti non fit injuria” does not protect the defendant where there is a breach of statutory duty causing injury to plaintiff though right to sue sight have been waived or abandoned by the plaintiff. The mere fact that a patient has agreed to undergo particular treatment or operation implies that he agrees to bear inherent risks but it does not follow that he has assented to the risks of recklessness or negligence on the part of practitioners. [6]

IV. Burden of Proof

The onus lies on the practitioner to prove that plaintiff’s consent was secured fully and freely. It is not sufficient to say that the patient was aware of the risks and dangers involved in the treatment. To take it as valid consent, the patient must have agreed to run the risks involved in the light of the knowledge as to hazards, side effects and consequences of treatment. It hardly matters what was expressed or implied.

V. Important Case Laws on Volenti non fit injuria

1. hall v. brooklands a uto r acing c lub [7].

Plaintiff was a spectator, during car race, there was a collision between two cars, one of the cars thrown among the spectators, thereby injuring the plaintiff. Here the defendant was not held liable. The maxim volenti non-fit injuria was applied.

2. Padmavati v. Dugganaika [8]

While the driver was taking petrol at the petrol pump, two strangers took a lift in a jeep. Suddenly, the front-wheel failed and the Jeep becomes uncontrolled, both the strangers were thrown away, one of them instantly died and another was injured. Here plaintiff was not held liable because strangers voluntarily took lift.

3. Wooldridge v. Sumner [9]

A photographer was taking a photo in a horse show unfortunately he fell into horse course and was injured by the galloping of a horse. Here also the defendant was not liable.

4. Smith v. Baker & sons [10]

The plaintiff was an employee of the defendant and the site where he used to work had a crane which carried rocks over their heads. The plaintiff had also complained to the defendant about it. One day the plaintiff was injured because of these rocks falling on him and thus he sued the defendant for damages. It was held that the defendant was liable and had to pay damages to the plaintiff because the plaintiff had consented to the danger of the job but not to the lack of care.

5. R v. Williams [11]

The 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.

6. Haynes v. Harwood [12]

The servant of the defendant brought two horses in the town near a police station and left them to do some other work. The horses were hassled by the children and they broke free, seeing them in rage 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. The court held the defendant liable because the defence of volenti non-fit injuria did not apply in a rescue case.

7. Slater v. Clay Cros Co. Ltd. [13]

The plaintiff was hit by a train in the tunnel of the defendant railway company. The railway company had given instructions to all the drivers of its trains that they have to blow the whistle at the entrance of the tunnel and they should also slow the speed of the train but the driver did not follow these instructions and negligently drove it inside the tunnel, as a result of which the plaintiff was injured.

The defendant had taken the defence of volenti non fit injuria but the Court held that this defence could not be applied because even though the plaintiff took the risk of walking inside the tunnel, this risk was enhanced by the negligence of the driver. Thus, when a plaintiff gives his consent to take some risk, there is a presumption that the defendant has not been negligent.

[1] Chakraborty, C., Law of Consumer Protection, New Delhi, Dwivedi Law Agency (2017).

[2] Bangia, R.K, Law of Torts, Eighteen Edition Allahabad, Allahabad Law Agency (2005).

[3] Bag, R.K., Law of Medical Negligence and Compensation, Lucknow, Eastern Law House, (1996)

[4] Charles, J. Lewis, Criminal Negligence, A Practical Guide, 6th Ed., Total Pub. (2006)

[5] Gandhi, B.M., Law of Tort, Lucknow, Eastern Book Company, (2018).

[6] Fleming, Johan.G, The Law of Torts, The Law Book Co5th Ed., Sydney (Australia).

[7] [1933] 1 KB 205

[9] [1963] 2 QB 43

[10] (1891) AC 325

[11] (193) 1 KB 340

[12] (1935), 1 KB 146

[13] 1956 2 QB 264

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VOLENTI NON FIT INJURIA- DEFENSE IN TORT

Table of Contents

VOLENTI NON FIT INJURIA – DEFENSE IN TORT

In law of torts if a person does any unlawful act which results into injury to some other person, he/she is held liable and has to pay the damages or find any other remedy as determined by the court to the victim suffered. But in some situations even when a person suffers some damage due to some act of another person, he/she cannot claim damages because of presence of some defenses in law of tort.

A simple translation of the roman legal maxim ‘ volenti non fit injuria ’ is that the things which are suffered voluntarily are not fit or deemed to be an injury. Also, an injury cannot arise out of a voluntary act and in this the consent of the plaintiff acts as a defense.

For e.g. If X has a car whose brakes do not work and Y knowing about the conditions of the car still chooses to sit in it with X driving it and due to the failure of brakes both of them sustained injuries in accident, Y can’t claim for damages from X because this act was done by him voluntarily. But if Y didn’t know about the failure and then he sustained injuries, he is liable to claim damages from X because Y did not consented to accept the risk due to failure of car’s brake.

ELEMENTS OF VOLENTI NON FIT INJURIA

For applying the defense of the aforesaid maxim some essentials should have their presence in case and need to be fulfilled only then maxim can be taken to prevent liability. These are as followed:-

• Plaintiff knows about the risk.
• Plaintiff knowing the risk voluntarily agrees to suffer the harm.

But only the knowledge of risk is not enough for applying this defense, it is known as Scienti Non Fit Injuria meaning that having mere knowledge is consent to risk. Thus having knowledge is only half fulfilment of defense’s application.

In Smith v. Baker & sons [1] , the plaintiff was an employee of the defendant and the site where he used to work had a crane which carried rocks over their heads. The plaintiff had also protested about the same to the defendant. The plaintiff was injured because of these rocks falling on him and thus he sued the defendant for damages. It was held that the defendant was liable and had to pay damages to the plaintiff because the plaintiff had consented to the danger of the job but not to the lack of care.

• BURDEN OF PROOF

In the situation where the defendant is taking the defense of this maxim, the burden of proof lies on him to show that plaintiff was having full knowledge of act and had consented to risk involved and defendant must show that plaintiff was also aware about the extent of risk in the act for successfully taking this defense.

For instance, A has to undergo an operation for his eye infection and the doctor fails to tell him about the risk of losing his vision due to the operation and due to that A undergoes the operation believing that there is no such risk to his eye. In the operation, if A ends up losing his eyesight, the doctor will be held liable because A did not have the knowledge about the extent of the risk which was involved in the operation and therefore, the defense of volenti non-fit injuria cannot be taken.

• CONSENT OF THE PLAINTIFF

It is very important in defense of volenti non fit injuria that when the plaintiff voluntarily gives his consent to an act only then defendant can take this defense.

In the case of Hall v. Brookland [2] , the plaintiff went to a car race in which two cars crashed with each other and as a result of the crash, the plaintiff who was sitting as an audience was also injured when one of the cars soared into the audience. Here the defense of volenti non fit injuria was applied because the plaintiff had given his consent to such a risk by going to the race.

• CONSENT MAY BE EXPRESSED OR IMPLIED

In the case of taking this defense the defendant’s consent is not only expressly given but can be taken by the conduct also. For instance, C is a cricket player and due to a full toss ball he gets hits by it on his shoulder. Here C cannot claim any damages because C has consented to the risk by agreeing to play cricket.

• CONSENT OF THE PLAINTIFF MUST BE FREE

The consent given by the plaintiff for an act must be free from coercion, fraud or by other means which would affect the consent.

In the case of Ravindra Padmanabhan (Dr.) vs Lakshmi Rajan And Anr . , the plaintiff had a tumor on her breasts and therefore she went to the hospital to have it removed. While in the operation, the doctor removed the uterus as well even though it had nothing to do with the tumor. Thus, the Court found the defendants to be liable and thus, the defense of volenti non fit injuria was rejected.

Defendant can be held liable and can’t take help of this defense if the consent is taken by fraud.

LIMITATIONS OF VOLENTI NON FIT INJURIA

Following are some limitations under which this defense cannot be taken by defendant even if all essentials of the maxim are fully met:-

• Consent must be voluntary and free
• Knowledge does not necessarily imply assent or consent
• Consent must not be to illegal acts
• Negligence is an exception to the defense
• Rescue cases are an exception to the defense

CASES TO EXCEPTION OF THE DEFENSE:

• In the case of Haynes v. Harwood [3] , the servant of the defendant brought two horses in the town near a police station and left them to do some other work. The horses were upset by the children and they broke free, seeing them in rage 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. The court held the defendant liable because the defense of volenti non-fit injuria did not apply in a rescue case.
• In the case of Slater v. Clay Cros Co. Ltd. [4] , the plaintiff was hit by a train in the tunnel of the defendant railway company. The company had given instructions to the drivers of its trains that they had to blow the whistle at the entry of the tunnel and they should also slow the speed of the train but the driver failed to follow these instructions and negligently drove it inside the tunnel, as a result, the plaintiff was injured. The defendant had taken the defense of volenti non fit injuria but the Court held that this defense could would not be applied because even though the plaintiff took the risk of walking inside the tunnel, this risk was heightened by the negligence of the driver.
• In the case of R v. Williams [5] , the 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 liable because the consent was obtained by fraud.

Hence, the defense of volenti non fit injuria is an important defense in the law of torts as it has a wide field of application but the defense must only be applied by sound logic.

Submitted by-

Akanksha Yadav

Intern at Law Portal

Mail: [email protected]

College: Vivekananda Institute of Professional Studies, GGSIPU

[1] (1891) AC 325

[2] (1932) All E.R. Rep 208

[3] (1935), 1 KB 146

[4] (1956)2 QB 264

[5] (193) 1 KB 340

Author: Akanksha Yadav, Vivekananda Institute of Professional Studies, GGSIPU, Law Student

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Indian Legal Solution

Volenti non fit injuria.

Author: PRATYUSH PRAKHAR, BA.LL.B.(Hons), ICFAI University, Dehradun

*Author has written this article while pursuing  training program on article writing by indianlegalsolution.com

INTRODUCTION

In tort law, if a person does a wrongful act that causes harm to another person, He is held accountable and must pay damages or provide some other form of compensation to the victim, as determined by the Court, but on the same foot defendant also has certain kind of defences by taking which he can avoid his liability. One such defence is Volenti Non fit Injuria also known as the defence of consent.

MEANING OF MAXIM

Volenti non fit injuria’ Latin: ‘To the consenting, no injury is done’ [1] is a common law doctrine which clearly states that If someone willingly puts himself in a position where harm may occur, knowing that a certain amount of harm may occur, he cannot pursue a tort claim against the opposing party. ‘The theory only relevant to the risk that a reasonable person could have imagined was there as a result of his or her actions’. Voluntary harm does not establish a legal injury and is therefore not actionable. A right that has been willingly relinquished or abandoned cannot be enforced.

Illustration when a spectator of a Football match gets hit by the ball at the stadium without any element of carelessness or malice on the part of the player or the defendant, in that case, the plaintiff has no protection under tort law as he impliedly consented for such risk at the time of purchasing the tickets. So, in this case, the defendant can take the defence of volenti non fit injuria and avoid the liability.

Essentials of volenti non fit injuria

• The plaintiff should have had the full knowledge of the risks involved.

When the plaintiff is aware that he will get injured or suffer losses by the act done by the defendant and, despite this, gives his consent to suffer the injury, the defendant will not be held accountable for such an act. However, simply being aware of such a risk is insufficient to apply this maxim. However, mere knowledge of such a risk is insufficient for the application of this defence; the principle of scienti non-fit injuria is recognised, which means that mere knowledge is only a partial defence and does not amount to consent to the risk. [2]

• The plaintiff should have freely agreed to take the risk .

Whatever the consent is given by the party the consent must be free if the consent is given under compulsion the defendant cannot claim the defence of volenti non fit injuria.

Woolridge v.  Summer 1963 [3]

The plaintiff, a photographer, was photographing a horse show while standing near the arena’s boundary. One of the defendant’s horses went around the bend too fast. The plaintiff was frightened as the horse galloped furiously, and he fell into the path of the horse, where he was gravely injured by the rushing horse. The horse in the case won the competition.

“It was held that the defendants had taken due care, they were not liable. The defendants owed a responsibility of care rather than a duty of skill [4] ”.

Lakshmi Rajan v. Malar hospital 1998 [5]

The plaintiff was a woman in her forties She agreed to lump removed from her breast surgically. However, her uterus was removed by the hospital for no obvious cause.

It was held that the hospital was accountable for the failure in service since removing her uterus went beyond what she had consented to (wrongful misconduct).

Consent meaning and types

Consent is the prime element for this specific doctrine to be available as a tort defence. In fact, many times, the doctrine of volenti non fit injuria is referred to as the ‘Consent defence’. You cannot sue someone for trespassing if you invite them to your residence. It is for the simple fact that you have given your consent. You can’t sue for the enforcement of a right you’ve freely given up or abandoned. Also, the defendant’s act must be the same as the act for which consent has been granted. If a person is unable to give his consent due to insanity or is a minor, the consent of his parent or guardian suffices.

Consent can be of two types

• Express consent

Express consent is the type of consent that is not implied but is clearly stated. The consent can be given orally or in written form.

Consent is given to the doctor- Before performing an operation, the doctor takes the consent of the family members of the patient. This means after taking that consent the doctor performs the operation and if the patient suffers from any loss while performing the operation the doctor is not responsible for that because relatives had given the consent to perform the operation and that consent is known as express consent.

• Implied consent

Implied consent is a contentious type of consent that is inferred from a person’s actions and the facts and circumstances of a specific situation rather than expressly granted by a person. It can even be concluded from a person’s silence or inactivity in some cases. It is based on the assumption that one’s cooperation is seen as permission.

By buying the tickets for cricket or football match we impliedly give our consent for foreseeable accidents that may occur.

• Hall v. Brooklands Auto Racing Club 1932 [6]

Plaintiff was a spectator at a motor racing event held at Brooklands on a defendant-owned track. During the race, an accident occurred between two automobiles, one of which was tossed into the crowd, injuring the plaintiff. 

 It was held that the plaintiff impliedly took the risk of such injury, the damages were inherent in the spot which any spectator can foresee, thus the defendant was not liable.

• Padmavati v. Dugganaika 1975 [8]

While the driver was taking petrol at the petrol pump, two strangers took a lift in the jeep. Suddenly, the front wheel failed and the Jeep became uncontrolled, both the strangers were thrown away, one of them instantly died and the other was injured. Here plaintiff was not liable because strangers voluntarily took the lift.

Consent not for an illegal act

• No amount of consent can make an illegal or illegal conduct legal.
• No person can give consent to another person to commit a crime.

Illustration

Fighting with a naked fist – if two persons are fighting with their naked fist and both have given the free consent. If anyone person got injured and files a suit against the other person then the defendant cannot take the defence of Volenti non fit injuria because it’s an illegal act.

Duel with a sharp sword- Duel is a legal game but the sword used in the game should not be sharp. If they use a sharp sword and anybody got injured and files a case against him the defendant cannot take the defence of free consent.

Consent obtained by fraud

Consent obtained by fraud is not considered proper consent.

 In the Irish case of Hegarty v. Shine [9] However, it has been held that merely concealing facts may not be enough to void consent. “A man cannot be said to be truly willing unless he is in a position to choose freely, and freedom of choice presumes not only full knowledge of the circumstances on which the exercise of choice is conditional, so that he may be able to choose wisely but also the absence of any sense of constraint so that nothing interferes with the freedom of his will.” When a servant is forced to do work against his protest, there is no volenti non fit injuria. However, if a worker chooses a dangerous method of work out of his own free will rather than because his employer forced him to, he may be able to claim the defence of volenti non fit injuria.

Consent obtained under compulsion

Consent is not valid when it is provided in situations where the person does not have the freedom of choice and is forced to do so. There may be a situation where the person is knowingly compelled to undertake some risky work that, if he had free choice, he would not have undertaken. A master-servant relationship is a common example of this.

Bowater v. Rowley Regis Corporation [10]

The defendant’s foreman asked the plaintiff, a cart driver, to drive a horse that was known to both parties to be prone to bolting. The plaintiff objected at first but eventually agreed to do as he was told. The plaintiff was injured as a result of the horse bolting. The maxim of volenti non fit injuria was found to be inapplicable in this case, and the plaintiff was entitled to damages.

Mere knowledge does not imply assent:

The mere fact that you are aware of the risk does not indicate that you agree to take it. The following cases will help to clarify this.

Smith v. Baker & sons [11]

The plaintiff was a defendant’s employee, and the construction site where he worked had a crane that carried boulders over their heads. The plaintiff had also expressed her dissatisfaction with it to the defendant. The plaintiff was hurt one day as a result of these boulders falling on him, and he filed a lawsuit against the defendant for damages. The plaintiff had consented to the job’s danger but not to the defendant’s lack of care, thus the defendant was held accountable and had to pay damages to the plaintiff.

Negligence of the defendant

In order for the defence to be applicable, the act performed must be the same as the one for which consent was provided.

Illustration , if I am hurt while playing hockey in a legitimate manner, I am unable to seek compensation from any other participant because I am believed to have accepted the circumstances of the game I have gone to play. I can surely hold another player accountable if he hits me with a stick, and he won’t be able to claim volenti non fit injuria because I never consented to an injury being produced in that manner.

When the plaintiff agrees to take some risk, the defendant is presumed not to be negligent.

  Illustration , if I consent to a surgical procedure, I have no legal protection if the procedure is unsuccessful. However, if the operation fails due to the surgeon’s negligence, I may pursue legal action against him. It was not his negligence that I consented to.

Slater v. Clay Cross Co. Ltd. [12]

The plaintiff was struck by a train in the defendant railway company’s tunnel. The railway corporation had given all of its train drivers instructions to blew the whistle at the tunnel’s entry and to lower the train’s speed, but the driver disobeyed these directions and carelessly drove the train within the tunnel, injuring the plaintiff.

The defendant raised the defence of volenti non fit injuria, but the Court ruled that this defence could not be used since, while the plaintiff took the risk of walking within the tunnel, the risk was increased by the driver’s negligence. As a result, if a plaintiff agrees to accept a risk, there is a presumption that the respondent is not negligent.

Rescue cases.

Exceptions to the application of the principle of volenti non fit injuria include “rescue cases.” The defence of volenti non fit injuria cannot be used against a plaintiff who voluntarily takes a risk to save someone from an urgent danger caused by the defendant’s wrongful act.

Haynes vs. Harwood [13]

A two-horse van was left unattended in the street by the defendant’s servant. A group of children were playing nearby. A child from one of them thrown a stone at the horse, which caused the animal to bolt and run around wildly. This put women and children living on the street in the area at risk. When a police officer observed all of this, he dashed into the fray to put an end to the danger. He succeeded, although he was seriously damaged in the process. The court held the defendant liable because the defence of volenti non fit injuria did not apply in a rescue case.

Baker vs. T.E. Hopkins & son [14]

The well was filled with the noxious gases of the petrol-driven pump in this case due to the defendant’s fault. Those gases were about to kill two of his workers. Dr Baker was summoned to save them, but he was warned of the dangers involved. Even after that, he dove into the well, fully aware of the danger. He has driven out of there soon after, however, he died on the way to the hospital. Dr. Baker’s widow filed a claim against the workman’s employer. Because it was a rescue case, the defendant was found to be accountable for the compensation. The plaintiff was liable for compensation even though he freely consented to bear the risk.

In tort law, the maxim volenti non fit injuria has taken on the role of a good defence. It assists the defendant in avoiding accountability for the act committed by him because the other person agreed to the act that caused his or her harm.

The maxim, first and foremost, assists the defendant in avoiding liability for intentional acts that would otherwise be tortious. Second, when consent is given to run the risk of some harm that would otherwise be actionable, the doctrine of volenti non fit injuria applies. When the defence of volenti non fit injuria applies, it functions as a complete defence, absolving the defendant of all obligation because the claimant voluntarily agreed to risk the harm that could have been caused during or as a result of the action.

 Only when all the maxim’s essentials are strictly present, that the plaintiff should have full knowledge of the threat involved and he or she should have willingly agreed to run the risk involved, does the maxim come into play as a defence? The implications of knowing about the risk and giving consent without being forced are highly specific and specified.

 Conclusively, the defence of volenti non fit injuria is one of limited application in tort law. At times, the defendant’s carelessness may prevent the use of the defence of this maxim. When the maxim is used, the defendant is able to totally avoid liability, and so it is a good defence in tort.

• DR. R.K. BANGIA’s LAW OF TORTS, ALLAHABAD LAW AGENCY
• https://www.legalbites.in/
• http://lawtimesjournal.in/
• http://legal-dictionary.thefreedictionary.com/
• http://www.legalserviceindia.com/legal/index.html

[1] http://legal-dictionary.thefreedictionary.com/ Volenti+non+fit+injuria

[2] https://www.legalserviceindia.com/legal/article-3952

[3] [1963] 2 QB 43

[4] https://lawtimesjournal.in/volenti-non-fit-injuria/

[5] III (1998) CPJ 586(Tamil Nadu SCDRC).

[6]   (1932) All E.R. 221: (1932) All E.R. Rep. 208.

[7] https://lawtimesjournal.in/volenti-non-fit-injuria-2/

[8] [1975 ACJ 222]

[9] (1935) 1. K.B. 146.

[10] (1944) K.B. 476

[11] (1891) AC 325

[12] 1956 2 QB 264

[13] (1935), 1 KB 146

[14] (1959) 1 W.L.R. 966: (1959) 3 All E.R. 255.

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