assignment on volenti non fit injuria

volenti non fit injuria

Law of Torts Blogs Subject-wise Law Notes
Aishwarya Agrawal
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

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

This article is written by Adarsh Singh Thakur, student, Indore Institute of Law, Indore.

Introduction

In the law of torts, if any person commits any wrongful act which causes injury to another person, he is held liable and has to pay damages or provide some other remedy which the Court determines, to the victim of such an act.

But in some cases even if a person suffers some loss because of the act of another person, he cannot claim damages from that person because of the operation of defences of tort. One such defence available to a defendant is the defence of volenti non fit injuria in which the plaintiff is not entitled to damages because he consents to the act which has caused injury to him.

What is volenti non-fit injuria?

In the law of torts, there is a duty on every person do acts with reasonable care in order to avoid any harm which may occur due to their failure of taking such care. For e.g., If a person is driving his car, he has a duty to drive the car safely and within speed limits so that no accident occurs which can also harm any other person.

This is the general rule in torts but there are certain exceptions which are allowed in these cases and these called as defences to tort. Under these defences, a defendant can escape liability and volenti non-fit injuria is also one such defence which is available for the defendant.

In case a person gives his consent to doing of an act which leads to him getting injured, then even if an injury is caused by the other person, he cannot claim any damages from that person because the act was one for which he voluntarily consented. The consent of the plaintiff acts as a defence and this defence is called volenti non fit injuria which means to a willing person no injury happens.

Illustration: If A has a bike whose brakes do not work and B knowing about the conditions of the bike still chooses to sit on it with A driving it and due to the failure of such brakes they both sustain injuries in an accident, B cannot claim relief from A because he had voluntarily consented to sit on the bike.

But in the above illustration, if B was not aware of the conditions of brakes and then he sustained injuries sitting in it, he would not be stopped from claiming damages from A because here B did not give his consent to accept the risk of getting injured due to failure of the brakes.

Elements of Volenti non-fit injuria

For the application of the defence of volenti non fit injuria there are some essential elements or conditions which should be present in a case and only when they are fulfilled, this defence can be taken to prevent liability.

There are 2 essential elements in this defence:

The plaintiff has the knowledge of the risk
The plaintiff with the knowledge of risk has voluntarily agreed to suffer the harm.

Thus, whenever the plaintiff is aware of the possibility of harm which is likely to be caused by an act and when he still accepts to do that act and therefore agrees to suffer the injury, a defendant is relieved of his liability.

But only having knowledge about the risk is not enough for the application of this defence, It is known as Scienti non fit injuria, which means that mere knowledge does mean consent to the risk. Thus having knowledge is only a partial fulfilment of the conditions for the application of volenti non fit injuria.

Illustration: A goes for bungee jumping and he knows that he might get injured by it but he still decides to do it and as a result, he suffers injury despite all the necessary care being taken by the organisers. Here A cannot claim damages from the organisers because he had full knowledge of the risks and he had voluntarily agreed to suffer that injury by choosing to do bungee jumping.

In Smith v. Baker & sons, (1891) AC 325, 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.

Burden of proof

In the cases where the defendant is taking the defence of volenti non fit injuria, the burden of proof is on him to show that the plaintiff had full knowledge of the act and he had consented to the risk involved in the act and the defendant has to show that the plaintiff was also aware of the extent of risk which was involved in the act for successfully taking this defence.

Illustration: A has to undergo an operation for his eye infection and the doctor fails to inform him about the risk of losing his vision due to the operation, as a result, A takes the operation believing that there is no such risk to his eye. In the operation, if A loses 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 defence of volenti non-fit injuria cannot be taken.

Consent of the plaintiff

The consent of the plaintiff is very important in the defence of volenti non fit injuria because only when he voluntarily gives his consent to an act, the defendant can take this defence.

In the case of Hall v. Brookland (1932) All E.R. Rep 208, the plaintiff went to see a car race in which two cars collided with each other and as a result of the collision, the plaintiff who was sitting as an audience was also injured when one of the cars flew into the audience. Here the defence 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 Express or Implied

In the cases of this defence, the consent of the defendant is not required to be expressly given and even by his conduct, his consent can be taken.

Illustration: 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.

Illustration: A goes to watch a cricket match and while watching the match the batsman hits a six that hurts A’s hands when he attempts to catch it. Here A cannot hold the batsman or the owner of the Cricket stadium liable because he had impliedly consented to this injury by his act of purchasing the ticket and sitting in the stadium and thus despite no express consent, the defence of volenti non fit injuria will apply here and his consent will be deemed to be implied for such injury.

Consent of the Plaintiff must be free

When a plaintiff gives his consent for an act such consent should be free from any coercion, fraud or any other such means by which the free consent can be affected.

For e.g., A has a heart problem and he goes to a hospital for surgery. There he is informed by the surgeons that the required surgery is very complicated and there is a chance of the surgery failing which can cause his death. If A gives his consent to have the surgery and the surgeon despite taking all reasonable care in doing the surgery is not able to save A, then the surgeon cannot be held liable because A had given his consent for it and this consent was given freely.

In case the consent of a person is not free, the defendant cannot claim this defence to escape liability and he will be held liable for damage caused.

For e.g., A having heart problem goes to a surgeon and he is told that he needs surgery to which he agrees. During the surgery, the surgeon removes one kidney of A without his knowledge. In this case, even though the surgery is successful the surgeon will be held liable because A did not give his consent to the removal of his kidney.

In the case of Ravindra Padmanabhan (Dr.) vs Lakshmi Rajan And Anr. , the plaintiff had a tumour on her breasts and therefore she went to the hospital to have it removed. While operating her the doctor also removed the uterus even though it had nothing to do with the tumour. Thus, the Court held the defendants liable and thus, the defence of volenti non fit injuria was rejected.

In the case of Padmavati v. Dugganaika , the plaintiffs had asked for a lift in the jeep of the defendants and while travelling in it one of the screws of the wheel of the jeep fell out, as a result, the jeep crashed and it caused the death of one of the plaintiffs. In the case, the Court held that the defence of volenti non fit injuria will apply and thus the defendants were not liable because by sitting in the jeep the plaintiffs had assumed the risk of being injured in an accident.

Consent by fraud

In cases of consent having been obtained by fraud, the defence of volenti non fit injuria will not apply and the defendant will be held liable for the wrong by him.

For e.g., in the case of R v. Williams (193) 1 KB 340, 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.

Consent in cases of intentional infliction of harm

In the cases where harm is caused to a person intentionally, the defence of volenti non fit injuria will apply if the person has given his consent to such harm.

Illustration: A is a boxer who is fighting B in a boxing match. During the match, B punches A very hard as a result of which he suffers head injuries. In this case, even though B had intentionally inflicted harm on B it will not make B liable because A had willingly given his consent.

Illustration: K is a football player and during a match, he gets injured due to a tackle another player, as a result of which he needs surgery. Here A cannot claim any damages because by playing the sport he has impliedly consented to the risk of being injured.

Limitations on the application of volenti non fit injuria

There are certain limitations under which the defence of volenti non fit injuria cannot be taken by a defendant even if the essentials of this defence are present in the case.

Rescue Cases

When the plaintiff suffers an injury as a result of him doing an act which he knows is likely to cause harm to him but it is an act to rescue someone, then this defence will not apply and the defendant will be held liable.

Illustration: A fire is caused due to the negligence of A, and B is trapped inside the fire. C sees B and jumps into the fire to rescue him but in doing so he is also burned. Here even though C went into the fire voluntarily, knowing fully well that he may be burned, A will be held liable for negligence and the defence of volenti non fit injuria cannot be applied in this case, therefore, C will is entitled to receive damages from A.

In the case of Haynes v. Harwood (1935), 1 KB 146, 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 defence of volenti non-fit injuria did not apply in a rescue case.

Illegal Acts

If the consent is given for an act which is not allowed by law then, even on the fulfilment of all the essential conditions of this defence, the liability cannot be escaped and thus in such cases, this defence becomes inoperative.

Illustration: If A and B decide to do a fight with sharp swords, when such an act is prohibited by law, and A suffers a big cut due to which he suffers serious injuries, then in such case B cannot take the defence of having A’s consent in doing this act because it was prohibited by law and thus B will be liable.

Negligence of the defendant

The defence of volenti non fit injuria is not applicable in a case where the defendant has been negligent. Thus only where there is no negligence by the defendant, he can claim this defence to escape liability.

Illustration: If A goes undergoes a heart operation and he gives his consent for it even though he knows that there is a risk of the operation failing which can cause his death, the surgeon will not be liable if A dies as a result of the surgery if he had taken all due care. But if the operation had failed because of the negligence in carrying out the surgery then in such a case, the surgeon cannot claim the defence of having received the consent of A and he will be liable because there was negligence on his part in conducting the surgery.

In the case of Slater v. Clay Cros Co. Ltd. 1956] 2 QB 264, 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, 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.

Volenti non fit injuria and Contributory negligence

Both contributory negligence and volenti non fit injuria are used as a defence by the defendant to escape liability but they differ from each other.

In contributory negligence, the plaintiff who has suffered an injury is also at fault along with the defendant and therefore the quantum of damages which he can be awarded is reduced in proportion to the degree of his negligence in the act which caused him injury. Thus, both the parties are at fault in such a case and therefore this is a partial defence available to the defendant.

Illustration: A gets hit by a car while crossing a road, which was being driven by B and he drove it rashly and over speed limit due to which A sustained many injuries. But this accident happened because A decided to cross the road even though the traffic signal was on and thus the pedestrians could not cross it until the signal stopped for the vehicles. Here both A and B are at fault and therefore even though B will be held liable, the damages which he has to provide will be reduced because A was also at fault and thus the defence of contributory negligence applies here,

In volenti non fit injuria, the defendant is completely exempted from his liability because of plaintiff’s consent and thus it is a total defence.

Volenti non fit injuria is one of the defence under the law of torts in which the person who has committed a wrong is exempted from liability because the victim of such a wrong gives his consent to the commission of such an act and such a consent must be free for the successful application of this defence in a case.

This defence is also subject to certain limitations such as rescue cases and the negligence of the defendant in which even if the consent is given by the plaintiff, the defendant is held liable.

Thus while allowing this defence, Courts have to ensure that the conditions of this defence are fulfilled and the act is not one which falls within the limitation imposed on this defence.

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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 and its cases |Law Notes |Law of Torts

Introduction.

In the law of tort, there are certain defenses available to the defendant to avoid the liability of that tort and these defenses are volenti nonfit injuria, Act of God, Inevitable accident, private defense, mistake, necessity, and Plaintiff, the wrongdoer. These are the general defenses that can be applied against action for several wrongs.

When the plaintiff brings an action against the defendant, the defendant will be liable if all the essentials are proved. To protect the interests of the defendant, these general defenses are available to avoid liability. General defenses are a set of defenses or ‘excuses’ that you can undertake to escape liability in tort.

MEANING OF VOLENTI NON-FIT INJURIA

Volenti nonfit injuria is Latin for “ to a willing person, it is not wrong .” This legal maxim means that a person who is willing undertakes the risk cannot claim damages. In the law of torts, there is a duty to protect the rights of others and to take reasonable care and if someone voluntarily agrees to the breach of duty, no action arises.

In case the plaintiff voluntarily agrees to suffer some harm, he is not allowed to complain. Volenti nonfit injuria is also called the defense of consent. If there is consent to risk, no suit can arise. No man can enforce a right that has been voluntarily waived or abandoned.

For example, if a person owes a duty to safely take the passenger and the passenger knowing the driver is drunk enters the vehicle; there will be no action for damages as the passenger has willingly taken the risk. Similarly, you cannot sue someone for trespass when you invited them into your house.

ELEMENTS OF VOLENTI NON-FIT INJURIA

There are two essential elements of volenti nonfit injuria. These are:-

The plaintiff knows the risk
The plaintiff has voluntarily agreed to take the risk.

Both of these elements must be present and if any of the elements are not present, defense of volenti nonfit injuria cannot be taken.

At times, the plaintiff might be aware of the risk, but he may not have consented to it. Mere knowledge does not imply consent to the risk.

The concept of mere knowledge is known as scienti nonfit injuria and it means that mere knowledge of risk is not sufficient. It is also necessary that the risk should not go beyond the consent. If a player consented to injuries during the game, the injuries should not be a result of deliberate pushing. It is so because the player did not consent to such injuries.

In Dann v. Hamilton [1] , a lady knowing the driver was drunk chose to travel in it. Due to the driver’s negligent driving, an accident occurred which resulted in the death of the driver and injuries to the lady, and an action for damages, the defendants took the plea of volenti nonfit injuria.

The plea was denied and it was observed that the level of intoxication was not much. So, it cannot be apprehended that driver may cause an accident. Although the lady knew a drunken state, she did not consent to the injury.

Hall v. Brooklands Auto Racing Club [2] is a leading case in the defense of consent. The plaintiff was a spectator at a motor car race being held at Brooklands on a truck owned by the defendant. During the race, a collision between cars led to injury to the plaint, iff, and the defendant took the defense of consent. The defense was granted and it was observed that the plaintiff impliedly took the risk as the sport was inherently dangerous. The defendant was held not liable.

In Smith v. Baker & sons [3] , the plaintiff was an employee of the defendant, and the site where he used to work had a crane that carried rocks over their heads. The plaintiff had also complained to the defendant about it. One day 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 because the plaintiff had consented to the danger of the job but not to the lack of care.

CONSENT MUST BE FREE

It is necessary to prove that the consent obtained for the risk was free. This implies that consent should not have been obtained by fraud, coercion, or misrepresentation. Consent should also be for the same act which defendant has done.

For example, if the consent is to enter the living room, the stranger should not enter the bedroom. In case the consent of a person is not free, the defendant cannot claim this defense to escape liability and he will be held liable for damage caused.

There is a case of Lakshmi Rajan v. Malar Hospital Ltd. [4] . The plaintiff, a 40-year-old woman observed the development of a painful lump in her breast. The lump did not affect the uterus, yet it was removed during surgery. The defendant was held liable because the plaintiff did not consent to the removal of the uterus.

In the case of Padmavati v. Dugganaika , the plaintiffs had asked for a lift in the jeep of the defendants. While traveling in it one of the screws of the wheel of the jeep fell out, as a result, the jeep crashed and it caused the death of one of the plaintiffs. In the case, the Court held that the defense of violent nonfit injuria will apply. Thus, the defendants were not liable because by sitting in the jeep the plaintiffs had assumed the risk of being injured in an accident.

CONSENT OBTAINED BY FRAUD

Consent obtained by fraud is not real and serves as a good defense. In cases of consent having been obtained by fraud, the defense of violent nonfit injuria will not apply and the defendant will be held liable for the wrong by him.

The consent by fraud must be in respect of the act done by the defendant. Mere concealment of facts does not amount to fraud to vitiate consent. If a person consented to intercourse, infection with the venereal disease does not vitiate consent.

The music teacher in R v. Williams [5] , was held guilty of rape. He had sexual intercourse with a girl 16 years old under the pretense that his act was a ration to improve her voice. The consent was obtained fraudulently by mistake by the teacher. The real nature of the act was not known to the girl.

CONSENT OBTAINED BY COMPULSION

Consent given under circumstances when the person does not have the freedom to choose is not free. It is the situations like, doing a risky job or losing the job. In such cases, the person is bound to give consent to risk as he does not have free choice.

The situation generally arises in a master-servant relationship. A man cannot be said to be under free consent when his consent is obtained by compulsion. Thus, there is no volenti nonfit injuria when a servant is compelled to do some work even if he was not willing to.

An important element is a compulsion. A person should be unwilling to do the task. Yet, he was compelled to do so. If a workman adopts a risky measure willingly, the defense of consent will be granted.

The plaintiff, a cart driver, in Bowater v. Rowley Regis Co. [6] was asked the y defendant’s foreman to drive a horse. Both defendant and plaintiff knew that horse is liable to bolt. The plaintiff protested but ultimately went in obedience to the order. The horse bolted and the plaintiff was injured. It was held that consent was under compulsion, so the defense will not apply.

EXCEPTION TO RULE OF VOLENTI NON-FIT INJURIA

There is an exception for rescue cases to the defense of consent. If the consent was given to rescue someone because of negligent acts of the defendant, the defendant will be held liable. When the plaintiff voluntarily encounters a risk to rescue somebody from an imminent danger created by the wrongful act of the defendant, he cannot be met with the defense of consent.

Haynes v. Harwood [7] is an important authority on this point. The servant of the defendant brought two horses into the town 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.

He brought a case against the owner for damages. The court held the defendant liable because the defense of violent non-fit injuria did not apply in a rescue case.

If a person stops a horse that creates no danger will be without remedy.

Volenti nonfit injuria is a tort law defense in which the person who has committed a wrong is excused from accountability because the victim of such a wrong offers his permission to the commission of such an act, and such assent must be free for this defense to be effective in a case.

This defense is also subject to restrictions, such as rescue instances and the defendant’s carelessness, in which the defendant is held accountable even if the plaintiff gives consent.

Thus, when permitting this defense, courts must confirm that the elements of the defense are met and that the act does not come within the limitations set on it.

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

[2] Hall v. Brooklands Auto Racing Club (1932) All E.R. 221

[3] Smith v. Baker & sons, (1891) AC 325

[4] Lakshmi Rajan v. Malar Hospital Ltd . 1998 CPJ 586.

[5] R v. Williams (1923) 1 K.B. 340.

[6] Bowater v. Rowley Regis Co. (1994) K.B. 476.

[7] Haynes v. Harwood (1935), 1 KB 146

Case brief – hart v. o’connor.

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Volenti Non Fit Injuria - A Conceptual Analysis

Legal Encyclopaedia (ISBN: 978-81-943164-1-1), Volume 1, Edition 1 (2020)

Posted: 2 Oct 2020

Rajas Salpekar

Independent

Date Written: Feb 1, 2020

A tort can take place in forms of trespass, battery, assault, malicious prosecution, defamation or any other form. However, a person can evade tortious liability even after himself committing the wrong by resorting to several defenses like ‘act of god’ , ‘plaintiff is the wrongdoer’, ‘inevitable accident’ and several others.One such defense against any tortious act is ‘voleni-non-fit-injuria’. This paper talks about the concept, history, exception and nuances of 'Volenti-Non-Fit-Injuria'.

Keywords: Volenti Non Fit Injuria, Torts, Ulpian, Scienti Non Fit Injuria

Suggested Citation: Suggested Citation

Rajas Salpekar (Contact Author)

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Dann v Hamilton – Case Summary

Dann v hamilton.

Citations : [1937 D No 1828]; [1939] 1 KB 509.

The claimant got into the back of a car driven by the defendant, who she knew to be drunk. She was not under any compulsion, nor was there any necessity for her to get in. The claimant had driven around with the defendant earlier in the evening, and was aware that he had been driving negligently.

The defendant got into an accident due to his drunken state. The defendant was killed and the claimant was injured. The claimant sued the defendant’s estate in negligence. The defendant’s estate admitted negligence, but raised the defence of volenti non fit injuria .

Did the defence of volenti non fit injuria bar the claimant from succeeding in negligence?

The Court held in favour of the claimant. This was not the kind of extreme case where getting into an obviously dangerous situation would trigger the defence.

This Case is Authority For…

Asquith J explained that to establish volenti non fit injuria , the defendant must first show that the claimant had complete knowledge of the danger. They must then show that the claimant also consented to it. However, he stated that complete knowledge does not by itself imply consent to waive liability for the risk.

Asquith J went onto say that voluntarily getting into a car with a drunk driver does not indicate that the claimant has waived liability for any injury sustained as a result. The justification was that it is much harder to rely on acts done at a time when there is merely a risk of negligence as authorising possible negligence. Clearer evidence of consent is needed.

Asquith J did speculate that it might be possible in extreme cases for volenti to apply to drunk driving scenarios. In particular, he thought serious issues would arise if the drunkenness of the driver was so extreme and obvious that:

‘to accept a lift from him is like engaging in an intrinsically and obviously dangerous occupation, intermeddling with an unexploded bomb or walking on the edge of an unfenced cliff’.

This was not the case on the present facts, however.

Volenti Non Fit Injuria as a Defence Under Law of Torts

Post author: LawFoyer
Post published: 5 April 2024
Post category: Articles
Reading time: 10 mins read

Author – Chitra , (University Five Year Law College, University of Rajasthan)

INTRODUCTION

The expression ” Volenti non-fit injuria” means “Injury isn’t done to a willing person.”

First, let’s understand what a tort is.

The term” tort” originates from the Latin term ” Tortum,” which means” to twist.” therefore, a tort refers to conduct that’s crooked, crooked, and unlawful, original to the English term ‘wrong.’

Salmond states,” Tort is a civil wrong for which the remedy is a common law action for unliquidated damages and which isn’t simply the breach of contract or the breach of a trust or other simply indifferent obligation.”

When the complainant initiates legal action against the defendant for a specific tort, establishing the actuality of all the essential rudiments of that tort, the defendant becomes liable. still, certain vittles can vindicate the defendant from liability, known as general defences. There are eight general defences in the law of torts, and “volenti non-fit injuria” is one of them.

This legal sentential guards defendants in tort cases, allowing them to argue that the complainant, by their own choice, willingly assumed the pitfalls associated with a particular exertion or circumstance. The operation of this doctrine depends on demonstrating that the complainant was apprehensive of the implicit detriment and freely accepted the associated pitfalls.

Meaning and Explanation

It is also known as Defence of Consent.

The doctrine of Volenti non-fit injuria means that “no injury is done to a willing person.” It implies that if a person willingly warrants to the infliction of detriment upon themselves, they aren’t entitled to any remedies under the Law of Torts. Any detriment suffered freely by an existent doesn’t amount to legal injury, and thus, it isn’t practicable under the law of torts. When a complainant gives concurrence to suffer detriment upon themselves, they aren’t entitled to remedies, and their concurrence acts as a valid defence for the defendants.

For illustration, if A invites B to their home for regale, A cannot sue B for trespass because A has willingly foisted detriment upon themselves. still, it should be noted that an act causing detriment mustn’t exceed the limits of the concurrence given. In the game of football, players indicate concurrence to the normal course of injuries, but it doesn’t mean they cannot sue for deliberate injuries caused by other players. A person who freely agrees to the publication of scandalous matter cannot bring an action for vilification. No existent can apply a right that they’ve freely waived or abandoned. concurrence to waive one’s right can be expressed or inferred. For the defence of Volenti non-fit injuria to be available, the defendants must prove that the complainant was completely apprehensive of the pitfalls involved and their extent. Bare knowledge of the threat isn’t sufficient; the complainant must give concurrence to sustain that detriment.

The defence of Volenti non-fit injuria was successfully invoked in the case of Padmavati v Dugganika. In this case, two non-natives took a lift in a jeep while the motorist was going to fill petrol. suddenly, one of the bolts fixing the right front wheel came out, performing in the two nonnatives being thrown out of the jeep and seriously injured. One of them indeed failed as a consequence of the incident. The court held that neither the motorist nor the proprietor of the jeep was liable for two reasons first, it was a clear accident, and second, the non-natives freely entered the jeep, allowing the defence of Volenti non-fit injuria to be successfully contended.

Also, when a trespasser is apprehensive of the presence of spring ordnance, they aren’t entitled to recover damages if they’re injured by those spring ordnance.

Essentials Elements of Volenti non-fit injura

Defence of consent-

The defence of concurrence, also known as volenti non-fit injuria, is a legal principle where a person who freely warrants the threat of detriment cannot claim damages if they suffer any detriment as a result of the threat they deliberately and willingly accepted. For this defence to succeed, the defendant must prove that the descendant

Had full knowledge of the nature and extent of the threat involved
Freely accepted the threat with no pressure or compulsion
Wasn’t under any disability or internal incapability

Case Hall v. Brooklands Auto Racing Club

In this case, the complainant attended a motor auto race held at Brooklands. During the race, a collision passed between two buses, and the observers, including the complainant, were hit, resulting in the complainant’s injury. The defendant company that possessed the tracks was sued. The courts held that since the threat was nicely foreseeable, considering the dangerous nature of the sport, the defendant company isn’t liable.

Case Padmavathi and Ors. v. Dugganaika and Ors.( 1974)

In this case, two non-natives freely accepted a lift in a jeep. Suddenly, due to a mechanical disfigurement, the jeep stumbled, and they sustained injuries. The motorist and proprietor of the jeep were sued. The court held that since the complainants willingly took the lift and the accident wasn’t nicely foreseeable, the defendants weren’t liable.

Consent Should Not have been given on the basis of Tort or under any compulsion- (i.e consent is not obtained by fraud)

Case:- R v. Williams

The defendant, who was the teenage plaintiff’s singing schoolteacher, engaged in sexual exertion with her, falsely claiming that his conduct was a system of remedying her breathing and perfecting her singing. The girl agreed to the exertion, under the belief that it was a medical or surgical intervention. The defendant was condemned to rape. He appealed the conviction, arguing that the plaintiff had acceded.

The Court of Appeal upheld the conviction, stating that the defendant had deceived the plaintiff regarding the nature and quality of his conduct by leading her to believe they weren’t sexual. thus, the plaintiff didn’t give valid concurrence, as her concurrence was attained through fraud.

No liability only for Consented Act

Take Lakshmi Rajan v Malar Hospital Ltd for example; A 40-year-old woman working at Malar Hospital Ltd found a lump in her pelvis. It does not affect the size of the uterus removed unprotected during surgery. The court said that nursing home officials were responsible for the deficiencies in services. It was also determined that her consent to the surgery was not her consent to the removal of her uterus.

Limitations to this doctrine
Rescue Cases

It appears that the defence in this case is the doctrine of “voluntary compensation”, which is a legal right given to the person who receives a threat of damage, and cannot demand compensation for the damage.

Disclosures of information are generally considered an exception to this protection. Because a person who enters a dangerous situation to save others during a rescue is not considered to have voluntarily assumed the risk of harm. Instead, the truck driver is deemed reasonable and reasonable and is generally not precluded from receiving compensation for any injuries they suffer.

Case – Haynes v Harwood

The complainant was police officer Bobby, who worked at a police station on a busy road that was often crowded with people, including children. The defendant had two wagons left on the same road. After the damaged truck, the driver pulled a rope to the bus. For some reason, they rushed out onto the busy road in a minibus, apparently because the grave was thrown onto the horses. Officer Bobby saw them at the police station, got out of his car and tried to stop them but was injured and demanded payment for the damage. The King’s Bench ruled against the plaintiff. The defendant appealed to the Supreme Court. A no-injury verdict will not help Police Officer Bobby claim compensation for the injuries he suffered because he refused to acknowledge the threats but followed the legal bridge.

Scienti non-fit Injuria

Case -Smith v. Charles Baker and Sons

The complainant was a contractor working for the defendant’s construction company and was injured on the job. The monument was removed from the plan of the crane and the complainant left the street when he saw the men lift the monument over his head. A colleague began to raise concerns about the dangers of lifting the monument up, and the complainant himself told the crane operator that it was unsafe. Despite these warnings, the complainant hit the shaft while working on the drilling machine, causing serious injuries. There was no warning that the grave would lean in this direction. The plaintiff’s complaint was that he was aiming for a hammer and that he was not in a position to protect himself. The tombstone was hung over his head negligently and did not receive enough attention, causing him to fall.

At the hearing in the City Courthouse, the defendant’s attorney argued that the plaintiff chose to do the job and was concerned about the problem that arose. still, the jury made several findings

(1) the machine used for rooting the monuments from the slice wasn’t suitable for the task;

(2) the failure to give an alarm system during gravestone lifting was a fault in the system, job, ministry, and planning;

(3) the employer or any person responsible for addressing similar issues was careless in not addressing the disfigurement;

(4) the complainant wasn’t careless and didn’t willingly accept the parlous employment with knowledge of its implicit detriment. The Court of Appeal upheld the appeal primarily because there was no substantiation of wrongdoing on the part of the defendants. The complainant also appealed to the House of Lords.

The doctrine of volenti non-fit injuria holds a significant position in the general defence within the realm of tort law. Defendants can use this doctrine to vindicate themselves of liability by demonstrating that the complainant willingly acceded to the same. still, certain essential conditions must be met for the doctrine to be successfully applied. In conclusion, the defence grounded on this doctrine isn’t comprehensive but rather has a limited compass. There are situations where the operation of volenti non-fit injuria can be barred, similar as when the defendant is careless. The limitations mentioned over in the paper further circumscribe its connection. Overall, the defence of volenti non-fit injuria proves to be an effective means of escaping liability.

Books- R.K. Bangia, The Law of torts

E resources:-

https://blog.ipleaders.in/
https://lawbhoomi.com
manupatra.com
https://wwwlegalserviceindia.com

Changing the society with the help of pocso act,2012, insanity as an indemnity: section 84 of the ipc.

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Doctrine of Volenti non-fit Injuria case and exception

Adv. Pooja Gupta

Updated on: June 4, 2024

Best Law Books

The doctrine of Volenti Non-Fit Injuria is expressed by the Latin maxim, meaning thereby that where the plaintiff has consented to a wrongful act, he shall have no right to sue the defendant. Harm suffered voluntarily by the consent of the plaintiff is not actionable. This principle of law is generally known as Volenti non-fit injuria.

Table of Contents

volenti non-fit injuria

“Volenti non-fit injuria” basically means that if you willingly take part in something or know about the risks involved, you can’t complain later that you got hurt or treated unfairly because of it.

For e.g .: – if a man enters my house on my invitation then I cannot take action for trespassing against him.

the application of maxim volenti non-fit injuria

The following are the conditions for the application of the maxim volenti non-fit injuria: –

Consent must be free

The defence of volenti non-fit injuria is available to the defendant only when he proves that the consent given by the plaintiff was free, that is without any fraud, compulsion or coercion.

Consent may be express or implied

Consent in oral or written form is called express while consent by conduct is called implied. The defence of volenti non-fit injuria can also be available in the implied consent of the plaintiff.

In Hall vs Brookland’s Auto Racing Clubs

The plaintiff was a spectator in the defendant’s race club. During the race, there was a collision between two cars and as a result, one of the cars was thrown at spectators and injured the plaintiff. It was held that the defendant was not liable for the injury caused to the plaintiff as he had impliedly consented to suffer the damage which was incidental to such sports.

The act must be lawful

The act to which the plaintiff gives his consent and undertakes to suffer the risk must be lawful and the method of doing it must also be lawful.

Volenti Non-Fit injuria, Not Scienti Fit injuria

The maxim is not scienti no fit injuria (knowledge implies consent) but volenti non-fit injuria, mere knowledge does not imply consent to take the risk. In the case of Dann vs. Hamilton 1939 1 K.B509 , the distinction between “sciens” (knowledge of risk) and “volens” (consent to undertake the risk).

In this case plaintiff “a lady” knowing that the driver of the car was drunk, and the possibility of an accident was more, decided to travel by his car. Due to the driver’s negligence, an accident took place and the plaintiff was seriously injured.

It was held that the plaintiff was entitled to recover damages against the representative of the driver who had died in the incident. Although before riding the car the plaintiff knew that there might be an accident in the state of driver’s intoxication, it did not mean that she had consented to the risk arising out of the negligence of the driver.

Exception of the Maxim Volenti Non-Fit does not apply

Where consent was given under compulsion (Smith vs Bekar 1891)
Where scienti is not volenti (Dann vs Hamilton 1939 1 K.B. 509)

Rescue cases

This defence does not apply when the plaintiff endures an injury as a result of the defendant committing the act that he knows is likely to cause him harm but performs to save someone.

In the case of Haynes v. Harwood (1935)

The defendant’s servant brought two horses into the village near the police station and left them there to do other work. The horses became agitated by the children and broke free. When the plaintiff, a police officer, saw them in rage, he went to stop the horses and was injured in the process, so he filed a lawsuit against the owner for harm. The court found that the defendant was held responsible since this defence of volenti non-fit injuria did not adhere in a rescue case.

Illegal Acts

If consent has been given for an act that is not permitted by law, the liability cannot be avoided even if all of the necessary elements of this defence are met, therefore this defence will become ineffective in these kinds of cases.

Negligence of the Defendant

In cases where the defendant has been guilty of negligence, the defence of volenti non-fit injuria does not apply. Thus, the defendant can use this defence to avoid liability only if he is not guilty of negligence.

In Slater v. Clay Cros Co. Ltd. 1956

The applicant has been hit by a train passing through the tunnel of the respondent railroad company. The railroad company had instructed all of its train drivers to blow the whistle at the entry of the passageway and to slow the speed of the train, but still, the driver didn’t follow these directions & gross negligence drove the train inside of the tunnel & injured the plaintiff.

The defendant raised this same defence of volenti non-fit injuria, however, the Court has ruled that this defence can not be used since, while the appellant took the risk of walking inside the passageway, this danger was heightened by the driver’s negligence. As a result, when a plaintiff agrees to take that risk, there seems to be an assumption that the defendant was not guilty of negligence.

Contributory Negligence & Volenti Non-Fit injuria

Contributory negligence & volenti non-fit injuria are both used by the defendant to avoid being sued, but they are not the same.

In the case of contributory negligence, the appellant who has been injured is also at fault, together with the defendant, hence the number of damages that he could be granted is reduced to determine the degree of his negligence in the act that caused him injury.

As a consequence, in such a case, both parties are responsible, and this is a biased defence available to the defendant. Because of the plaintiff’s permission, the defendant is completely immune from liability in volenti non-fit injuria and therefore has a complete defence.

Distinguish between scienti non-fit injuria and

The legal principles of “scienti non-fit injuria” and “volenti non-fit injuria” in tort law differ based on the plaintiff’s relationship to harm and consent. “Scienti non-fit injuria” comes into play when the plaintiff, despite being aware of the risk, does not agree to it, allowing them to seek compensation for negligence.

On the other hand, “volenti non-fit injuria” applies when the plaintiff knowingly accepts the risk, thus giving up the right to claim negligence. In essence, “scienti non-fit injuria” deals with harm without consent, while “volenti non fit injuria” concerns a deliberate agreement to the risk.

Hall v. Brooklands Auto Racing Club

In the case of Hall v. Brooklands Auto Racing Club, Hall attended a car race as a spectator. During the event, two cars collided, resulting in Hall’s injury. In a lawsuit seeking damages, it was determined that Hall was not eligible to receive compensation because he had impliedly agreed to accept the risk associated with attending the race.

The maxim ‘Volenti non-fit injuria’ is a defence used by the defendant once the plaintiff agrees to incur harm or loss knowingly and deliberately. The ideology of Volenti non-fit injuria is dependent on express permission, and consent should be free of mistakes, coercion, fraud or false representation.

Furthermore, mere knowledge of danger doesn’t serve as an effective defence so because the plaintiff should believe that he is willing to suffer the injury or risk. The most essential element of this ideology is that the complainant should mutually agree to endure the damage for the defendant to be made responsible. The defendant may use this ideology in his protection, but it should fulfil the criteria of the Volenti non-fit injuria principle.

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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- 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

ISSN 2581-5369

HeinOnline, MANUPATRA, Google Scholar Indexed

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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ANALYSING THE DEFENCES OF TORTS LAW: VOLENTI NON-FIT INJURIA AND SCIENTI NON-FIT INJURIA

When a plaintiff brings an action against the defendant for a wrongful act under the tort, the defendant is held liable, but there are certain defences that the defendant can take to protect

When a plaintiff brings an action against the defendant for a wrongful act under the tort, the defendant is held liable, but there are certain defences that the defendant can take to protect himself or herself from tortious liability.

VOLENTI NON-FIT INJURIA

One of the key defences that the defendants can take to protect themselves is the “consent” of the plaintiff. This defence is often reflected in the legal maxim volenti non-fit injuria which translates to “to a willing person, it is not wrong”. This principle was the common law basis for the assumption of the risk doctrine. [1] When a person gives his or her consent to the infliction of some harm upon himself or herself, he or she cannot claim any remedy or damages for such act by the defendant. The defendant shall not be held for tortious liability. No person shall be allowed to enforce a right that he or she has voluntarily given up. This consent of the person may be expressed or implied.

An expressed consent is that in which a person verbally through spoken words or writing gives their consent for some act. For instance, trespass (entering someone’s property without their permission) is a tort for which the defendant can be held liable. However, the plaintiff cannot claim damages if he or she himself or herself has invited someone to his or her house. Similarly, a person cannot sue their surgeon for performing a surgical procedure on them as the person has himself or herself provided consent to be operated upon.

An implied consent is that which can be inferred from the act of the conduct of the parties. For instance, sportspersons who have chosen to play sports in which some harm is most likely to occur in the usual course of the sport of game. Examples of such sports may be cricket, football, rugby, etc. Similarly, a spectator who buys a ticket to watch a game of cricket has given. His or her implied consent to the harm caused by the ball.

In the case of Hall v. Brooklands Auto-Racing Club (1933), [2] The plaintiff was a part of the audience of a car race held on a track at Brooklands which was owned by the defendant. While the race was being held, two of the race cars struck with each other, resulting in one of the cars being flown off to the spectators’ gallery and resulting in an injury to the plaintiff. The court, in its judgement, expressed that the plaintiff himself gave his implied consent to being injured as in such a scenario the risk was not unforeseen and the plaintiff voluntarily gave his free consent to be in danger. [3]

Furthermore, in the case of Padmavati v. Dugganaika (1975), [4] a jeep driver was carrying a few litres of petrol to a project site. On the way, two strangers asked for the lift and boarded the jeep. In the course of the journey, one of the front wheel axles broke and both the strangers were tossed out of the jeep resulting in death on the spot for one of them. The court in its judgement expressed that neither the driver nor his employer can be held accountable because the two strangers had themselves given their consent to the potential risk by getting into the jeep. [5]

LIMIT OF THE CONSENT

The consent of the plaintiff must be free. This means that the consent obtained through undue influence, coercion, fraud, misrepresentation, mistake, etc will not be considered as free consent. It must also be noted that the defendant can claim the defence of consent if the harm has happened within the scope of the consent. If the harm is beyond the scope of the consent, the defendant cannot claim the defence. For instance, during a football game, if a player gets hurt during the usual course of the game, the player cannot claim damages as he or she had given his or her consent to it, however, if another player deliberately inflicts harm on the plaintiff, the wrongdoer cannot claim defence of consent and shall be appropriately liable.

IF THE PLAINTIFF IS INCAPABLE OF PROVIDING CONSENT?

When the person is incapable of providing consent to medical treatment because the said person is a minor, or of unsound mind or any other incapability, consent of the parent or guardian shall be obtained. Such consent is sufficient even if the said person is protesting against such treatment.

SCIENTI NON-FIT INJURIA

It becomes difficult to predict the scope of the consent in such cases where the person had the knowledge of the risk but might not have given consent to run the risk of harm. Therefore, the legal maxim of scienti non fit injuria, says that mere knowledge of the risk does not always amount to consent. The maxim supports that the plaintiff had knowledge of the risk and gave his or her consent based on that knowledge. [6]

In the landmark case of Thomas v. Quartermaine (1887), [7] The plaintiff was a worker in the brewery of the defendant. While trying to separate a cap from a boiling tank of water, the cap got stuck and the plaintiff had to apply an extreme amount of force to remove the cap. While adding the extra amount of pressure, the plaintiff got thrown into the vessel that had the burning hot fluid. As a result, he suffered some serious injuries due to the same. It was asserted by the defendants that the plaintiff had been known of the potential risks of working in such a workplace. But we must note that even though the plaintiff had full knowledge of the risk, he did not give his consent to being harmed. However, the court applied the principle of volenti not fit injuria and held that the defendant cannot be held accountable for the injury endured by the plaintiff.

However, this decision of the court was rectified in the case of Smith v. Baker & Sons (1891), [8] In which the plaintiff was an employee of Baker & Sons. The plaintiff worked in a rock-cutting site near a crane which often held heavy stones over the working site without issuing a proper warning to the workers. Both the plaintiff and his supervisors were aware of the potential risk involved, that is, the falling of stones from the crane. One day, while working on the site, the plaintiff suffered some injuries caused by the stone which fell from the crane. The defendant argued that the principle of “volenti non-fit injuria” should be applied (as in the previous case of Thomas v. Quartermaine (1887) [9] Held by Baron Bowen) in this case, as the plaintiff, Smith was aware of the risk involved in the work and voluntarily assumed the risk. However, the House of Lords emphasised that just because someone is aware of the risk involved in a scenario, it does not automatically imply their consent to that risk. In this case, the plaintiff’s knowledge of the danger does not imply that he accepted the harm caused by it. Therefore, the defendant was made accountable for the injury endured by the plaintiff, Smith. [10]

In conclusion, it is essential to differentiate between the two concepts of volenti non-fit injuria and scientists non fit injuria to determine the extent of the consent of the plaintiff. By this, the courts can ensure that persons involved in a case are held liable for their actions and promote justice and equity.

Author(s) Name: Xara Behzaad (Alliance University, Bengaluru)

References:

[1] ‘Volenti Non-Fit Injuria’ (Legal Information Institute) <https://www.law.cornell.edu/wex/volenti_non_fit_injuria#:~:text=Volenti%20non%20fit%20injuria%20is,assumption%20of%20the%20risk%20doctrine.> accessed 13 June 2024

[2] Hall v Brooklands Auto-Racing Club [1933] 1 KB 205

[3] Ltd AA, ‘Hall v Brooklands Auto-Racing Club’ (Law Teacher, 6 November 2023) <https://www.lawteacher.net/cases/hall-v-brooklands.php> accessed 13 June 2024

[4] Padmavati v Dugganaika [1975] ACJ 222

[5] ‘Padmavathi v. Dugganaika, Karnataka High Court, Judgment, Law, Casemine.Com’ (https://www.casemine.com) accessed 13 June 2024

[6] Manupatra, ‘Manupatra’ (Articles) <https://articles.manupatra.com/article-details/Volenti-Non-Fit-Injuria-An-Analysi> accessed 13 June 2024

[7] Thomas v Quartermaine [1887] 18 QBD 685

[8] Smith v. Baker & Sons [1891] AC 325

[9] Thomas v Quartermaine (n 7)

[10] (Law of torts – chapter 5) <http://student.manupatra.com/Academic/Abk/Law-of-Torts/Chapter5.htm> accessed 13 June 2024

The Law Express

Volenti Non Fit Injuria: Concept, Meaning and Case Laws

Suppose you are a spectator to a game of cricket being played in a stadium. The batsman hits the cricket ball, and the ball hits you, who is sitting the crowd. Since you have been hurt, you can file a case and claim damages but by the defence granted to the accused by this article, there won’t be any consideration for compensation of any kind because you, yourself gave consent when you bought a ticket to watch the match and came willingly to the stadium. Volenti Non fit injuria is one of the defences given to the defendant to escape liability under Tort Law. The phrase is a Latin term which translates, “ to a willing person, injury is not done .” This doctrine though is applicable to the extent that a normal person is able to foresee the damages that he would concur.

However, for the doctrine to apply the consent of the plaintiff should have been obtained by the defendant prior to the injury or harm caused to the plaintiff. The consent given by the plaintiff could be either expressed or implied. For instance, if the above scenario, a batsman hits another player with his bat, he cannot claim this defence, because the player didn’t consent to such a harm.

Origin of Volenti Non Fit Injuria –

The maxim was originally stated as, Nulla iniuria est, quæ in volentem fiat formulated by Roman jurist Ulpian.

This maxim gives the defendant power to be not be blamed for the injury that the plaintiff incurred, as it is believed that the plaintiff gave the consent to the defendant beforehand. Prior to 1945, concept of burden of proof for the applicability of this maxim was unclear, judges were of the view that it should be applicable if the plaintiff gave an express or implied consent to the danger or harm, while others thought that even if the plaintiff was aware and signed up for the harm and danger, even then the defence should not be applicable.

This particular maxim was standing on the Doctrine of Estoppel, whose applicability was limited to Roman citizens who gave consent for being sold as slaves. In Dann v. Hamilton , the judges argued if the maxim would ever be applicable after the completion of act as the consent is obtained beforehand, and since the act happens afterwards the plaintiff won’t have any knowledge of the act and he would liable to what extent to suffer any harm since he has consented to it.

Volenti non fit injuria’s proper implementation was done in the case of Khimji vs Tanga Mombasa transport co. ltd (1962) , where a bus containing a number of passengers reached a flooded road, and the driver of the bus stopped. The passengers onboard including the plaintiff however, encouraged the driver to continue driving. He did exactly that and the bus lost its way in the water and some passengers including the plaintiff were killed. The court held that the defendant isn’t liable to pay any compensation because the passengers knew the risk and consented to it.

Essentials of Volenti non fit Injuria –

1. Consent – Consent in tort law is said be to given when the below mentioned conditions are fulfilled. And only if there is consent can the defence be claimed.

a. Consent must be free – There should be no coercion or fraud in obtaining the consent of the plaintiff. Also, the act causing damages should be done only to the extent for which consent is given by the plaintiff, anything above that the defendant cannot claim this defence.

In Lakshmi Rajan vs. Malar Hospital Ltd, a 40 year old woman noticed a lump in her breast and consulted a doctor for the removal of the same. During surgery, her uterus was removed, without giving any justification or information about the same. The court held the hospital authorities liable as the plaintiff (woman) did not gave consent for the removal of her uterus.

b. Consent must not be obtained via fraud – In, R. vs. Williams, the accused was found guilty of raping a minor girl by obtaining her consent on the pretence that the act was an operation that would help in improving her voice. While in R. vs. Clarence, the accused was given the defence as although he being active with a sexually transmitted disease didn’t inform her spouse and went on to have intercourse with her, but without any intention of transferring her the disease, despite knowing the risks. The court held that the act of intercourse in a marriage was consented to and thus the defendant was given this defence.

2. Knowledge of the risk doesn’t imply consent – The defence is applicable only when the act causing the harm or injury goes beyond the consent given. The two essentials for the same are –

The plaintiff knew the existing risks, and
After knowing, he agreed to suffer the harm.

In Bowater vs. Rowley Regis Corporation, a cart driver (plaintiff) was asked by the defendant’s foreman, to ride a horse which was most likely to bolt and they both knew. The plaintiff protested at first but gave in to the orders to show his obedience. The horse bolted injuring the driver. The court held that the doctrine wasn’t applicable in this case because even though he knew the risks he didn’t consent to it willingly but more in fear.

3. Negligence of the defendant – The doctrine isn’t applicable if the harm or injury occurs due to negligence on part of the defendant. In Slater vs. Clay Cross Co. Ltd the plaintiff was walking along a narrow tunnel on a railway track when she was injured by the driver of the train. While she had knowledge of the risk of walking on a railway track, the train driver knowing well it was dark in the tunnel did not whistle and thus the lady couldn’t save herself and got injured. The court held that the driver was negligent and thus the doctrine won’t be applicable.

Exceptions to the Defence –

1. Rescue Conditions – In cases where the plaintiff voluntarily puts himself or herself at risk, because of a negligence on the part of the defendant or his actions then the doctrine cannot be invoked. For instance in the case of Haynes vs. Harwood , a two-horse van was left unattended by the driver in the street. A group of children were playing nearby, one from the lot threw a stone at the horses due to which it bolted and started running around. A policeman saw the same and jumped in to get the horse under control as the place was filled with children and woman who could have gotten injured badly. In the process, the policeman was badly injured, the court declined the defence to the defendant as he claimed the policeman was doing his job, but the court held him liable for his negligence of leaving the horses unattended.

2. Plaintiff the wrongdoer – An individual cannot claim his own wrong. A person trespassing on someone’s property is injured due to darkness, he cannot claim for any compensation. However, the defence ceases to exist if the defendant does a wrongful act as well, does not matter if the act of plaintiff was wrongful in the first place. In Bird vs Hollbrook(1828), the plaintiff was trespassing on the defendant’s land, and was injured by the spring gun put by him, the court held him liable because he didn’t put any notice of spring guns being on the property.

3. Act of God – It is unreasonable for any person to be held liable for damages cause by an Act of God. The following essential conditions must be fulfilled for an act to be Act of God –

The event must be a result of a natural cause, and
It should be an extraordinary event, something that no one could have anticipated or expected.

4. Private Defence – According to Section 96 of the Indian Penal Code, nothing that is done to exercise the right of Private Defence is an offence. The law gives permission to an individual to use reasonable and necessary force to prevent any harm to human body or property, and the injuries due to such force is non actionable.

Burden of Proof –

For the defence, the onus of proof is on the defendant. It must be proved by the defendant that the consent of the plaintiff obtained by him was free and complete and that he was fully aware of the risks involved.

Conclusion –

Volenti Non fit Injuria is a defence granted to the defendant under Tort law, that safeguards him from any liability in case of injury or harm caused to an individual in the process of an act being carried out after getting full and free consent for the same. It is an important maxim that helps people from exploiting defendants if an injury occurs due to their negligence while also punishing the defendant on being negligent.

Before the application of this maxim, the courts needs to ensure the conditions are fulfilled. That is to say that the consent is not obtained by committing any fraud and that the plaintiff although aware of the risk did not sign up for the negligence of the defendant that landed them in such a situation in the first place.

This article has been written by Astitva Jaiswal, from Amity Law School, Noida

Home / ailet pg / Know All About The Defence of Volenti Non Fit Injuria

Know all about the defence of volenti non fit injuria.

General Defences, as the phrase indicates, are like weapons in the hands of the defendants (also called ‘tortfeasor’) which help them evade liability. One of such defence is Volenti Non Fit Injuria.

This phrase derived from Latin translates to: “ to a willing person, injury is not done ,” In simple words, it states that when a person voluntarily consents to a risk of injury, being aware of the consequences of it, then that person cannot bring a claim against the other party, for any injuries suffered.

What is consent?

Consent under the Law of Torts has two elements involved in it. They are:

Knowledge of the party + Voluntary agreement to the risks

Therefore, if both of the above elements are present in a Tort, then the defence of Volenti Non Fit Injuria can be claimed.

To understand this better, let us examine the following examples:

You go to watch a cricket match in the stadium and the Captain Cool M.S. Dhoni hits the helicopter shot. The balls rise high towards the crowd and it happens to fall on your head, thereby causing injuries to you.

The injury caused to you was deep and you suffered some losses in medical expenses. Frustrated, you sue M.S. Dhoni for causing such serious injury to you. Will you succeed? You will not. Why so? When you purchased a ticket to watch a match in an open stadium, you impliedly consent to the risks involved in it.

In the present situation, you very well knew that there was a possibility for such situations to occur. Despite knowing the risks involved, you willingly decided to watch the match at the stadium. Therefore, your claim will not succeed. This is an example of implied consent.

Similarly, when you visit a certain place you find placards or posters stating “We are not responsible for any valuables misplaced.” This signboard is an indication that you have given an expressed consent to the risk of losing your items. This is an example of expressed consent.
While playing Soccer, a player from the opposite team injures you. Will your claim against him succeed? No, because you have voluntarily consented to the risks of the game.
You were walking on the right side of the road and get hit by a motorcycle. Will your claim against the motorcyclist succeed? No, because you very well know the risks involved in walking on the right side of the road.
You go to a circus show. During the show, due to the imbalance of the sticks, the lion on top of the sticks falls on you and thereby causes injuries to you.

No. Because your acceptance of the job opportunity is an indication of you consenting to the risks involved in the work.

An occupier of a premise placed a board stating: “Beware of dogs!” You trespass (usage of the premises of the occupier without his consent) through the land of the occupier to go to the other side of the road and get bit by the dogs. Will your claim against the occupier stand? No. Because firstly, you have been trespassing through his land which is not acceptable under the law. Secondly, despite the board explicitly stating the risks involved, you have still chosen to use the premises of the occupier as a passage.

What can be drawn as a common ground from the above examples, is how the plaintiff cannot succeed against the defendant due to him voluntarily consenting (knowledge of the risk + agreeing to do it) to the risks involved in the above acts.

However, this defence has exceptions:

(i) Negligence of the other party:

Remember one thing: you consent to the risks of the game but not the negligence of the other party .

To understand this better let us examine the above facts with a little twist in them:

You go to watch a cricket match and in the middle of the match suddenly a steel plank from the top of the stadium falls on your head and injuries you.

The injury caused to you was deep and you suffered some medical expenses. Frustrated you sue the stadium authorities for causing such serious injury to you. Will your claim against the stadium authorities succeed? Yes, it will.

Understand this: The facts discussed above and here being more or less similar. In the present case, you have consented to the risks of the game such as the ball hitting you or anything likewise but you have not consented to the negligence of the stadium authorities . It is the duty of the stadium authorities to maintain the stadium properly. Therefore in the present case, your claim will stand.

A soccer player consents to being hit and to the other expected injuries of the game but does not consent to his opponent punching him, paralyzing him, or doing any other activity outside the usual terms of the game.

Therefore, if a player punches another in such a manner to cause grievous hurt to him, then the defence of Volenti Non Fit Injuria will not stand.

You are walking by the road and it is implied that there might be accidents that can be caused. However, a person drives a car rashly thereby injuring you. In this case, you have consented to the usual terms of using the road but not to the negligent use of the car driver. The car driver owes a duty of care to all those using the roads.
You visit a circus, you can be held liable only to the extent of the risks involved in watching the show. It is not extended to any negligence of the circus authorities for not properly maintaining the animals and other infrastructure of the circus etc.
According to the employment contract, you have consented to the risks involved in the due course of your work. Your consent ends there. In case, you are injured due to the negligence of your co-employee then you can claim compensation from your employer. Because this does not fall under the risks that you have consented to.

(ii) Rescue Cases

To understand this defence let us take the very same case of the cricket stadium. You go watch a cricket match and you see a steel plank falling from above and you realize that a child is standing below it. To save the child, you go ahead and try to push the child away from the steel plank. Eventually, the steel plank falls on you and thereby causing injury to you.

The injury caused to you was deep and you suffered some injuries. Frustrated you sue the stadium authorities for causing such serious injury to you. Will you succeed? Yes, you will. How? A question might arise that here you have consented to the risk of saving the child and hence the Stadium authorities cannot be held liable.

However what you must appreciate is, under the Law of Torts, a rescuer is not considered to have voluntarily accepted to the risks . In this case, your actions do not contain your consent. Therefore, in this case, your claim will stand not only because you wanted to rescue the child but also for the negligence of the stadium authorities for not maintaining the stadium properly.

However, it is also seen that sometimes a person doesn’t need to rescue, and yet the person acts in rescue thereby claiming the defence. Then his claim will not succeed.

(iii) Illegal acts

To claim the defence of Volenti non fit injuria, the act committed by the defendant must not be illegal or unlawful .

To understand this let us consider the following example:

Ram and Shyam are friends. Ram kills Shyam stating that he has consented to it. Can Ram be excused under the defence Volenti non fit injuria ? No. Why? Because the mere act of killing a person cannot be justified under the law. Consent to illegal acts is not considered as valid.

This article is posted in association with clatapult.com

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What Is Volenti Non-Fit Injuria Under the Law of Torts?

This short law article tells you about volenti non-fit injuria as per the Law of Torts and shares its exceptions and relation with the Indian Penal Code (IPC).

Definition of Volenti Non-Fit Injuria

The literal meaning of the volenti non-fit injuria is “ to a willing person, injury is not done ”. When one person is aware of the risk involved in an event and still continues to engage in it, then he cannot claim the damages from the other person, and the defendant is discharged from his liability.

The volenti non-fit injuria is one of the general defences given to the defendant to protect himself from the allegations of the defendant. This theory prevents the plaintiff from exploiting the respondent and protects the defendant from being alleged for a wrong that he has not committed.

Essential Ingredients of Volenti Non-Fit Injuria

Plaintiff is aware of the risk involved.
Aware of the risk, the plaintiff still agrees to engage and suffer the harm .

Since it is a defence given to the defendant, the burden of proof lies on the defendant to successfully avail the benefit of the defence. The defendant must prove that the plaintiff was just not only aware of the possible occurrence of the harm but also consented to engage in one . If the defendant succeeds, then he gets discharged from his liability. The consent of the plaintiff can either be expressed or implied , and it must be free consent .

If the consent obtained by the plaintiff is not free or is out of force, fraud, or any mischievous ways, and is obtained through fraud, coercion, misrepresentation, undue influence or mistake of law or fact, then the defendant cannot take the defence due to the defendant being the wrongdoer in the first place. To take the defence, the defendant must be free of any guilt.

Exceptions to Volenti Non-Fit Injuria

There are some exceptions to the applicability of the volenti non-fit injuria, where the defendant cannot avail the defence of volenti non-fit injuria even if he is in the position to take it (even if prima facie it seems legit) :

Rescue cases: A situation where the plaintiff does an act of helping (rescuing) someone by his own will and consequently suffers an injury, even then, the said defence will not apply, and the defendant will be held liable.
Illegal conduct: If the plaintiff and the defendant are involved in any illegal activity, which is an offence in the eyes of the law, then the defence will no longer be available.
Defendant himself is negligent: If there is any negligence act done on the part of the defendant and the plaintiff suffers harm, then the defendant cannot take the defence and has to compensate the plaintiff for the injury caused to him.

Relation of Volenti Non-Fit Injuria With IPC

Section 87 of the Indian Penal Code, 1860 , is also based on the principle of volenti non-fit injuria. The section states that if the person has given his consent to a particular event and consequently suffers harm, he would not be eligible enough to hold the person liable for the harm suffered by him.

In short, the volenti non-fit injuria is a defence available to defendants but with certain limitations to its applicability. While granting the judgement of defence to the party, the court must ensure that basic requirements are fulfilled, and the cases do not fall under any exception of the defence.

Read Next: 1. Top Legal Maxims for Law Exams 2. What Is Strict Liability and Absolute Liability 3. Read All Torts Law Notes

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vo len ti non fit in ju ria

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volenti non fit injuria

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“Volenti non fit injuria.” Merriam-Webster.com Legal Dictionary , Merriam-Webster, https://www.merriam-webster.com/legal/volenti%20non%20fit%20injuria. Accessed 2 Sep. 2024.

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Volenti Non Fit Injuria
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Difference Between Volenti Non Fit Injuria and Contributory Negligence- Law of Torts
What is 'Volenti Non Fit Injuria' in a civil claim?
8, violenti non fit injuria , defence in law of tort

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Volenti non fit injuria
Volenti non fit iniuria (or injuria) (Latin: "to a willing person, injury is not done") is a Roman legal maxim and common law doctrine which states that if someone willingly places themselves in a position where harm might result, knowing that some degree of harm might result, they are not able to bring a claim against the other party in tort or delict.
volenti non fit injuria
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 ...
Volenti Non Fit Injuria
Consent of the plaintiff. The consent of the plaintiff is very important in the defence of volenti non fit injuria because only when he voluntarily gives his consent to an act, the defendant can take this defence. In the case of Hall v. Brookland (1932) All E.R. Rep 208, the plaintiff went to see a car race in which two cars collided with each ...
volenti non fit injuria
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]
Tort: Volenti Non Fit Injuria
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 ...
Volenti Non-Fit Injuria and its cases |Law Notes |Law of Torts
MEANING OF VOLENTI NON-FIT INJURIA. Volenti nonfit injuria is Latin for " to a willing person, it is not wrong .". This legal maxim means that a person who is willing undertakes the risk cannot claim damages. In the law of torts, there is a duty to protect the rights of others and to take reasonable care and if someone voluntarily agrees to ...
Volenti Non Fit Injuria
However, a person can evade tortious liability even after himself committing the wrong by resorting to several defenses like 'act of god' , 'plaintiff is the wrongdoer', 'inevitable accident' and several others.One such defense against any tortious act is 'voleni-non-fit-injuria'.
Dann v Hamilton
The defendant's estate admitted negligence, but raised the defence of volenti non fit injuria. Issue(s) Did the defence of volenti non fit injuria bar the claimant from succeeding in negligence? Decision. The Court held in favour of the claimant. This was not the kind of extreme case where getting into an obviously dangerous situation would ...
Volenti Non Fit Injuria
It is this non-liability of A which been summarised in the maxim. volenti non fit injuria which, if literally translated, means voluntarily suffered. injury is not fit for action. In other words, no breach of a legal right is. committed against one who is a willing party, or, harm suffered voluntarily does not constitute an injury which is ...
General Defence In Law Of Torts (Volenti Non Fit Injuria)
Volenti non fit injuria is a complete defence but the defence of contributory negligence came after the passing of the Law Reform (Contributory Negligence) Act, 1945. In contributory negligence, the defendant's liability is based on the proportion of fault in the matter. In the defence of contributory negligence, both are liable - the ...
Volenti Non Fit Injuria
1. It is a complete and sufficient defense. It is a partial defense. 2. Only one party is at fault. Both the parties are at fault. 3. According to the defense of volenti non fit injuria, only the plaintiff is accountable so no damages are provided. The defendant is not held liable.
PDF 'Volenti Non Fit Injuria' in Actions of Negligence
The second of the above defences (I1. b) is that expressed by the maxim, " Volenti non fit injuria; " and, as said above, it is strictly not a defence, but a rule of law regarding, a plaintiff's conduct which forms a bar to a suit brought by him based on another's alleged negligence. One who knows of a danger arising from the act or omission of ...
Volenti Non Fit Injuria as a Defence Under Law of Torts
The defence of concurrence, also known as volenti non-fit injuria, is a legal principle where a person who freely warrants the threat of detriment cannot claim damages if they suffer any detriment as a result of the threat they deliberately and willingly accepted. For this defence to succeed, the defendant must prove that the descendant.
Doctrine of Volenti non-fit Injuria case and exception
The doctrine of Volenti Non-Fit Injuria is expressed by the Latin maxim, meaning thereby that where the plaintiff has consented to a wrongful act, he shall have no right to sue the defendant. Harm suffered voluntarily by the consent of the plaintiff is not actionable. This principle of law is generally known as Volenti non-fit injuria.
Volenti Non Fit Injuria: Essentials And Exceptions
Essentials of Volenti Non Fit Injuria. 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 ...
VOLENTI NON FIT INJURIA- DEFENSE IN TORT
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].
Volenti Non Fit Injuria
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 ...
Analysing the Defences of Torts Law: Volenti Non-fit Injuria and
The defendant argued that the principle of "volenti non-fit injuria" should be applied (as in the previous case of Thomas v. Quartermaine (1887) Held by Baron Bowen) in this case, as the plaintiff, Smith was aware of the risk involved in the work and voluntarily assumed the risk. However, the House of Lords emphasised that just because ...
Volenti Non Fit Injuria: Concept, Meaning and Case Laws
Essentials of Volenti non fit Injuria -. 1. Consent - Consent in tort law is said be to given when the below mentioned conditions are fulfilled. And only if there is consent can the defence be claimed. a. Consent must be free - There should be no coercion or fraud in obtaining the consent of the plaintiff. Also, the act causing damages ...
10. Negligence
10 Volenti Non-Fit Injuria-'No wrong can be done to the willing' - if someone voluntarily undertakes a risk with the knowledge of this risk then they cannot seek damages for any harm occurring from that risk.- Complete defence: if D. can prove Voleni, C.'s claim will fail.Smith v Charles Baker & Sons (1891) HL, per Lord Herschell: 'The maxim is founded on good sense and jusice.
Know All About The Defence of Volenti Non Fit Injuria
Know All About The Defence of Volenti Non Fit Injuria. General Defences, as the phrase indicates, are like weapons in the hands of the defendants (also called 'tortfeasor') which help them evade liability. One of such defence is Volenti Non Fit Injuria. This phrase derived from Latin translates to: " to a willing person, injury is not ...
What Is Volenti Non-Fit Injuria Under the Law of Torts?
The literal meaning of the volenti non-fit injuria is " to a willing person, injury is not done ". When one person is aware of the risk involved in an event and still continues to engage in it, then he cannot claim the damages from the other person, and the defendant is discharged from his liability. The volenti non-fit injuria is one of ...
Volenti non fit injuria Definition & Meaning
ria. vo· len· ti non fit in· ju· ria. vō-ˈlen-ˌtī-ˌnän-ˌfit-in-ˈju̇r-ē-ə, wō-ˈlen-tē-ˌnōn-ˌfit-in-ˈyü-rē-ä. : to one who is willing no harm is doneused as a common-law maxim expressing the principle that one is not injured when a risk is voluntarily assumed compare assumption of risk.

volenti non fit injuria

Meaning of volenti non fit injuria

Essentials of volenti non fit injuria

The acceptance of risk must be informed

The person must have had the capacity to give consent

The acceptance of risk must be voluntary

The risk must be a legal risk

The risk must be proportionate to the benefit obtained

Consent in volenti non fit injuria cases

volenti non fit injuria cases

Limitations of volenti non fit injuria

Rescue Cases

Illegal Acts

Negligence of the defendant

Volenti Non Fit Injuria And Contributory Negligence

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Volenti Non Fit Injuria

Introduction

What is volenti non-fit injuria?

Elements of Volenti non-fit injuria

Burden of proof

Consent of the plaintiff

Consent may be Express or Implied

Consent of the Plaintiff must be free

Consent by fraud

Consent in cases of intentional infliction of harm

Limitations on the application of volenti non fit injuria

Rescue Cases

Illegal Acts

Negligence of the defendant

Volenti non fit injuria and Contributory negligence

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volenti non fit injuria

Volenti Non-Fit Injuria and its cases |Law Notes |Law of Torts

MEANING OF VOLENTI NON-FIT INJURIA

ELEMENTS OF VOLENTI NON-FIT INJURIA

CONSENT MUST BE FREE

CONSENT OBTAINED BY FRAUD

CONSENT OBTAINED BY COMPULSION

EXCEPTION TO RULE OF VOLENTI NON-FIT INJURIA

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Volenti Non Fit Injuria - A Conceptual Analysis

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