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Volenti Non Fit Injuria

Introduction.

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

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

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

When the defence of Volenti Non Fit Injuria is available?

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

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

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

1. Consent obtained by Fraud

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

2. Breach of duty or negligence

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

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

3. Consent Obtained Under Compulsion

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

4. Knowledge alone does not equate Consent

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

Case Laws on Volenti Non Fit Injuria

Smith v. baker [v].

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

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

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

Dann v. Hamilton [vi]

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

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

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

Bowater v. Rowley Regis Corporation [vii]

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

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

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

Imperial Chemical Industries Ltd v Shatwell [viii]

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

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

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

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

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

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

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

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

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

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

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

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

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

Also Read – Right of Private Defence in India

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Aayushi Mittra

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

volenti non fit injuria

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

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

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Doctrine of Volenti non-fit Injuria case and exception

Adv. Pooja Gupta

Updated on: September 20, 2023

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.

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

Table of Contents

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 in order 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 won’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 of 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 in order 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 biassed 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.

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 really 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 in order 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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Tort: Volenti Non Fit Injuria

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

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

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

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

Fully-Informed Knowledge

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

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

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

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

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

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

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

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

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

When Does the Defence Not Apply?

Protective duties.

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

Motor Vehicle Accidents

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

Volenti Non Fit Injuria Quiz

Test yourself on the principles of volenti non fit injuria .

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

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

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

Incorrect . See Nettleship v Weston.

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

Incorrect .

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

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

Incorrect . Volenti non fit injuria is a complete defence.

Your score is

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Volenti Non Fit Injuria as a Defence Under Law of Torts

• Post author: LawFoyer
• Post published: 5 April 2024
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• 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

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VOLENTI NON FIT INJURIA

Volenti non fit injuria

Volenti non suit injuria is a Latin principle that has taken on the status of a good defence in tort law. It assists the defendant in avoiding responsibility for the act committed by him when the other party consented, or at the very least assented, to the act that caused his or her harm. It assists the defendant in escaping responsibility for malicious actions that may otherwise be tortious, and the doctrine of volenti non fit injuria applies when consent is provided to risk damage that would otherwise be actionable. This study will help to assess the nature of the general defence of the maxim and how it has become a defence with one of the broadest scopes of applications in contrast to the rest of the defences over the years since it was propounded. It will also examine whether the defence has expanded its use over time. As the defence of volenti non fit injuria arises, it functions as a full defence, absolving the defendant of all responsibility because the victim had freely agreed to risk the damage that could have been incurred in the course of or as a result of the lawsuit. This is only a defence if all three of its basic elements are present in the strict sense, i.e., there should have been an arrangement for the act performed, the complainant should have had full knowledge of the risks involved, and he or she should have willingly consented to take the risk. The doctrine of volenti non fit injuria is an incomplete, but effective, tort defence since its scope as a defence has been limited several times, despite the fact that all of the essential elements are presentTo summarise, the defence of volenti non suit injuria has a narrow scope of operation in tort law. In certain cases, the defendant's negligence would preclude the use of the defence of volenti non suit injuria. Other times, the reach of the defence is hampered by the limitations described earlier in the paper. When the rule is applied, it assists the defendant in absolutely avoiding responsibility, and thus volenti non suit injuria proves to be a strong defence in torts.

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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

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

Volenti non fit injuria – concept, meaning and case laws | overview introduction origin essential elements application of volenti non fit injuria burden of proof important case laws on volenti non fit injuria introduction volenti non fit injuria protects the practitioner from liability for an act causing injury to a patient, which falls within the express or lulled consent… read more ».

Volenti non fit injuria – Concept, Meaning and Case Laws | Overview Introduction Origin Essential elements Application Of Volenti non fit injuria Burden of Proof Important Case Laws on Volenti non fit injuria Introduction Volenti non fit injuria protects the practitioner from liability for an Act causing injury to a patient, which falls within the express or lulled consent of the plaintiff. The one who voluntarily agrees to suffer harm is not allowed to complain for that and,...

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

Introduction.

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

Volenti non fit injuria protects the practitioner from liability for an Act causing injury to a patient, which falls within the express or lulled consent of the plaintiff. The one who voluntarily agrees to suffer harm is not allowed to complain for that and, one’s consent is a good defence against oneself . This is so because the harm voluntarily suffered does not constitute the legal injury. No man can enforce a right, which he has voluntarily waived or abandoned.

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

II. Essential elements

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

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

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

III. Application Of Volenti non fit injuria

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

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

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

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

IV. Burden of Proof

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

V. Important Case Laws on Volenti non fit injuria

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

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

2. Padmavati v. Dugganaika [8]

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

3. Wooldridge v. Sumner [9]

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

4. Smith v. Baker & sons [10]

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

5. R v. Williams [11]

The defendant was a singing coach and he had convinced a 16-year-old student to have sexual intercourse with him by telling her that it will help her in improving her voice and singing. The defendant was held liable by the Court because the consent was obtained by fraud.

6. Haynes v. Harwood [12]

The servant of the defendant brought two horses in the town near a police station and left them to do some other work. The horses were hassled by the children and they broke free, seeing them in rage the plaintiff who was a police officer went to stop the horses and in doing so he got injured and brought a case against the owner for damages. The court held the defendant liable because the defence of volenti non-fit injuria did not apply in a rescue case.

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

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

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

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

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

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

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

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

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

[7] [1933] 1 KB 205

[9] [1963] 2 QB 43

[10] (1891) AC 325

[11] (193) 1 KB 340

[12] (1935), 1 KB 146

[13] 1956 2 QB 264

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Volenti Non Fit Injuria – 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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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.

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Volenti non fit injuria

Meaning: That to which a man consents cannot be considered an injury .

Section 87 and 88 of Indian Penal Code 1860 embodies this principle.

This maxim applies principally to those cases where a man suffers an injury for which he has a claim for compensation, but which claim he is considered as waiving by acquiescing in, or not objecting to, the injury committed ; as, when a man connives at or condones the adultery of his wife, he cannot in' such case obtain damages from the seducer, nor sustain a petition for divorce. Or, where a man is a joint-contributor to the injury he has received ; as, where it has resulted partly from his own, and partly from another's negligence. It applies also to voluntary payments, voluntary releases and relinquishment of rights, and indeed to all those acts which a man does, or consents to, whereby he receives some injury, or loses some benefit which he might, by the exercise of his own free will and discretion, have avoided.

A man cannot complain of an injury which he has received through his own want of prudence and foresight. He cannot recover damages for an injury which, but for his own negligence or wrongful act, would not have happened. Therefore, damages cannot be recovered against a railway company for injuries to persons trespassing upon the line of railway, even though there should have been negligence in the management of the train. Nor can a man recover damages for injuries sustained by him in committing a trespass ; as by climbing up to get into a cart ; or by tumbling into a hole in his neighbour's field. Nor for injuries sustained by him in running against an obstruction negligently placed in the road by the defendant, if he were riding at an improper rate, or was intoxicated, or could have avoided the injury by riding with ordinary and proper care.

But this contributory negligence will not disentitle a plaintiff to recover damages unless it were such, that, but for that his negligence, the negligent act causing the injury would not have happened ; nor, if the party complained of might, by the exercise of due care on his part, have avoided the consequences of the carelessness on the part of the plaintiff. Thus, where a man negligently left an ass in a public highway, tied together by the fore-feet, and the defendant carelessly drove over and killed it, in the daytime, the ass being unable to get out of the way : it was held that the misconduct of the plaintiff in leaving the ass in the highway was no answer to the action, the defendant being bound to go along the road with care ; as, were it otherwise, a man might justify driving over goods left in the street ; or over a man lying there asleep ; or against a carriage going on what is commonly called the wrong side of the road. Where one has wrongfully taken possession of the property of another and converted it to his own use, the owner may either disaffirm the act and treat him as a wrongdoer, or he may affirm his act and treat him as his agent ; but, if he have once affirmed his act as agent, he cannot afterwards treat him as a wrongdoer.

So it is as to any right of action or defence to an action which a man has, and which he chooses tc relinquish ; as a right of action for a debt for which a creditor chooses to accept a composition ; a right of action by a tenant for an illegal distress ; a right of action for trespass or other injury ; a defence under the Statute of Limitations ; a right of way, or an easement of air, light, or other like privilege, the benefit of all of which rights a man may if he will, waive or relinquish, though to his own injury.

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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

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volenti non fit injuria

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

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

Meaning of  volenti non fit injuria

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

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

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

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

Essentials of volenti non fit injuria

There must be a voluntary acceptance of risk.

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

The acceptance of risk must be informed

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

The person must have had the capacity to give consent

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

The acceptance of risk must be voluntary

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

The risk must be a legal risk 

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

The risk must be proportionate to the benefit obtained

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

Consent in volenti non fit injuria cases

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

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

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

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

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

volenti non fit injuria cases

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

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

Limitations of volenti non fit injuria

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

Rescue Cases

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

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

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

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

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

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

Illegal Acts

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

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

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

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

Negligence of the defendant

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

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

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

Volenti Non Fit Injuria And Contributory Negligence

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

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

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

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

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

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

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

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Volenti Non Fit Injuria – Everything you need to know!!

Table of Contents

VOLENTI NON FIT INJURIA

Introduction  .

Volenti Non Fit Injuria , a legal maxim that means, ‘where the sufferer is  willing no injury is done’. It is a doctrine according to which a person who  voluntarily gives consent for any harm to suffer would not be liable to claim  any damages. The harm suffered is not a matter of the cause of action as it  was consensual. The plaintiff cannot impose a right that he willingly  abandoned. If a person lands up in a dangerous situation knowingly, the  provision of suing for injuries is not justified. 

It comes under the ambit of justification of torts and is one of the most  significant defences used against the petitioner in the relevant cases. 

Throughout history, various developments and judgements have given us a  proper definition of the maxim and the appropriate jurisdiction of the  same. The explanation and analysis of which is given henceforth. 

SIGNIFICANCE   OF VOLENTI NON FIT INJURIA

The main aim of tort law is to provide a system that holds  people accountable for the damages they cause while  discouraging others from doing the same. While this is very  essential in itself, what a lot of people undervalue in today’s day  and age when people get wrongfully convicted more than ever,  is the significance of legal defences, especially Torts related  defences.

This is so because Torts Law is an uncodified  subject, which gives rise to more scope for interpretation,  which thereby increases the chances of wrongful convictions.  Thus, it can be concluded that not only are Torts defences  important, they are very much necessary for a free and fair trial.  Tort defences are important to guarantee that the accused only  receives as much punishment as is deserved.

This is exactly where this topic comes in, which is the Latin  maxim Volenti non fit injuria. Not only is it one of the most  relevant Torts defences, it is especially important in today’s  modern era because it focuses on something very important  that other defences do not focus on – consent. Consent in itself  is a topic that has been highly debated upon for centuries and it  being one of the essentials for this maxim makes it the perfect  topic for us to discuss.

This is so because discussing the  intricacies of Volenti non fit injuria helps us understand not just  this maxim, but the concept of consent and the entirety of  Torts Law in itself and so much more as it is discussed further  on.

OVERVIEW OF THE DOCTRINE OF VOLENTI NON FIT INJURIA

History of volenti non fit injuria .

• Volenti Non Fit Injuria is a maxim of Latin origin in the context of language. 
• The emergence of the doctrine is not very recent and still  remains unclear. 
• It was established by a Roman jurist named, ‘Ulpian’. 
• The basic construct of this doctrine can be found in English  Common Law System, the Scottish Law, the law in The United  States and in Canada. 

EXPLANATION

A s explained in the introduction, the maxim means ‘where the  sufferer is willing no injury is done’.  

Every person has a de facto duty of evaluating the potential risks  or dangers involved in a task before performing it. Upon the failure  to do so, the accountability should rely on the same person in case  of any harm caused. The victim has no reasonable ground to claim  damages if the injury was suffered even after being fully aware of  the consequences. For instance, if an author agrees to publish a  certain piece of literature he had prior knowledge of, he cannot  sue the publisher for defamation.  

There are various conditions necessary to be fulfilled by the  sufferer so as to enable the respondent to exercise this defense.  Certain limitations have also been established throughout  judgements and jurisdictions making the principle more objective.  

Examples of Volenti Non Fit Injuria

Numerous instances where this doctrine can be applied: – 

• If a cricket player gets injured while playing, he can’t  have any claim against the officials. As he, himself has  agreed to suffer the injury and hence, the claim for Volenti Non Fit Injuria can be utilized as successful defence.
• If X went to see F1 racing at a stadium. While watching  the game he is hit by the car then X doesn’t have any claim against stadium authorities. As the authorities have the defence of this maxim.
• In a boxing club, the boxers give their consent to the  authority if any injury or harm occurs then they do not have any rights to file a suit against the authorities.

KEY PRINCIPLES OF THE DOCTRINE OF Volenti Non Fit Injuria

• The consent must  be free 
• Consent should  not be ob tained by  fr a ud 
• Mere knowledge  does not imply  assent 

The consent must be free    

• The consent must be free The prime factor essential for the application of volenti non fit injuria in appropriate cases is the  plaintiff’s consent to the risk. The consent should be free and implied, and not obtained by coercion,  undue influence or misrepresentation. The petitioner should be completely aware of the potential  risks before performing the act. 
• As stated in the examples mentioned before, if a person agrees to go in a boxing ring and returns with  an injury, the authorities cannot be sued in accordance to the principle. This happens as only free  consent was involved.  
• As we also observed in the case of Hall v. Brookland (1932) All E.R. Rep 208, the petitioner got injured  due to a racing car. Although, the organisation committee was not held liable as he consented to the  risk by attending the same racing event. 

Consent should not be obtained  by fraud  

• In cases where consent has been obtained by fraud, this defense is outrightly denied. The defendant  shall be held liable for the tort committed and will pay the damages to the defendant.  
• Consent obtained by fraud is considered to be void ab initio.  
• The case that we can refer in this regard is named R v. Williams (193) 1 KB 340, where a man who was  teaching the skill of singing to a minor convinced her that a sexual intercourse will help improve her  voice. Later, he was held liable for his actions as the consent was obtained by a fraudulent act.

Mere knowledge does not imply assent 

• Volenti Non Fit Injuria is only applicable when both the conditions, a) prior knowledge of the risk, and  b) agreeing to the risk voluntarily, are fulfilled. As the title explains itself, mere knowledge does not  imply assent.  
• In the case of Smith vs. Baker, the employee suffered injuries due to a stone that fell on him during  working hours. He sued the defendant for damages. The counsel pleaded the maxim as the employee  was aware of the potential risks of the workplace. But, the defense was rejected as only knowledge of  the risk was present and not the presumption or consent to it.

Difference between Volenti Non Fit Injuria and contributory negligence

Limitations or exceptions to volenti non fit injuria.

• NO CONSENT 
• INVALID AGAINST  AN ACTION BASED  ON A BREACH OF  STATUTORY DUTY 
• Unlawful act
• DOESN’T APPLY TO  THE CASES OF NEGLIGENCE of the  defendant 
• INVALID IN RESCUE  CASES 

NO CONSENT  

• There have been multiple cases where consent was forced or not present while performing an  injurious task. The maxim failed to be used as a defense then. 
• In the case of Bowater v. Rowley Regis Corporation, the plaintiff employed under the Municipal  Corporation for sweeping was ordered to drive an uncontrollable horse. The plaintiff denied but  ultimately drove the horse due to orders. The horse dashed causing injury to the driver. The  defendant was held liable as there was no free consent present for the act.

INVALID AGAINST AN ACTION BASED  ON A BREACH OF STATUTORY DUTY 

• The defense holds no ground against ab action based on a breach of statutory duty. If an employee  makes a claim against his employer for an injury resulting through a breach by the employer itself,  the claim will not be answered.  
• But if the injury arises due to a breach of statutory duty on the part of the employee who deliberately  accepted the risk, the defense is applicable in the favour of the defendant. 

UNLAWFUL ACT 

• One of the prime limitations of the maxim Volenti Non Fit Injuria arises when the act committed is  unlawful or illegal. Even if consent and prior knowledge of the risk is present, and every other  essential is fulfilled, the defense can’t be claimed. Liability and damages will arise for the defendant  to pay. 
• For an instance, in a shooting practising session, a person ends up shooting the other person. He  cannot claim the defense by stating the fact that he had consent of the other party to do so. The  defendant will be held liable as the act was illegal at the first place. 

Doesn’t apply to the cases of  negligence of the defendant 

• The defense is absolutely not applicable in the cases where the injury was caused by the negligence  of the defendant. If the plaintiff consents to a particular risk, is it supposed initially that the  defendant took reasonable care.  
• In the case of Slater v. Clay Cross Co. Ltd., a lady was hit by a negligent train driver in a tunnel. The  driver failed to blow the whistle which eventually led to the lady getting harmed. Although the  plaintiff was consenting to the risk of walking in a tunnel, negligence occurred on the defendant’s  part leading to the latter being liable for the damages.

INVALID IN RESCUE CASES 

• The maxim also holds no validity in the cases and incidents of rescue. If the plaintiff deliberately  takes a risk or consents himself to a danger in order to protect another person’s safety, which might  have been caused by a different party’s negligence, he has a right to remedy. 
• In the landmark case of Haynes v. Harwood, a two-horse van was left neglected on a street. When a  boy threw a stone, they bolted. A police constable ran to stop the horses and ended up injuring  himself.  
• As it was a rescue case, Volenti Non Fit Injuria failed to apply and the respondents were liable to pay  the damages. 

APPLICATIONS OF VOLENTI NON FIT INJURIA

Volenti non fit injuria in employment  relationships , bowater v rowley regis corporation.

In the above case, the plaintiff was an employee of a municipal corporation. He was ordered to take an  unruly horse which had misbehaved twice by his employer. He denied the same and protested against  it, but had to do it under the pressure of an order. 

Eventually the horse ran away and the employee who was thrown from the cart was severely injured. He sued the municipal corporation for not providing an appropriate horse for the task allotted to him. 

In the end, the verdict was in the favour of the plaintiff as the negligence was depicted from the side of  the defendants, there was no contributory negligence from the petitioner, and it didn’t satisfy the  conditions of Volenti Non Fit Injuria due to absence of free consent.

Imperial Chemical Industries v Shatwell

In this case, two brothers suffered grave injuries at their employer’s quarries. This happened due  to disobedience of the mandatory guidelines provided. Testing of a circuit was done with  incapable wiring resulting in the brothers sustaining wounds. 

They sued their employer for damages but the court dismissed the plea on the grounds of Volenti  Non Fit Injuria as the brothers acted with deliberate negligence and violated the employer’s  regulations.  

The employer was not held vicariously liable.

Volenti non fit injuria in case of rescuers

Baker v te hopkins & son ltd.

Hopkins, an employer hired two employees Mr. Ward and Mr Wileman to clean a well. The well passed  the candle light test which was used to examine the fumes. After the examination, a motor was  installed in the well that ran for more than 11 hours. 

Hopkins did warn both men to not go down the well as fumes have been created. He explicitly told  them to wait until his arrival. They breached his order, went down the well and suffocated due to the  fumes. Dr. Baker arrived and too went into the well. All three died due to poisoning. 

The defendant was held liable under volenti non injuria as the plaintiff’s actions did not come under  free consent.  

This was an important case under the ambit of rescuers.

Ogwo v Taylor

The defendant caused a fire in his house while attempting to burn off the paint from  underneath the eaves of the house. When the fire brigade was called, one of the firemen was  severely injured due to excessive heating in the roof space. The heat even penetrated his  protective apparatus. 

The defense of volenti non fit injuria had no credibility in this case as the duty of care was owed  to a fireman. 

Volenti non fit injuria in case of Suicides  

Kirkham v chief constable of the greater manchester police.

The petitioner was alcoholic and dealt with depression. After failing two attempts at suicide, he  returned home after getting discharged. He constantly caused domestic violence. 

Due to the same reason, he was kept in a prison. The prison authorities were unaware of his  condition. He eventually committed suicide. 

His wife sued the defendants for the failure of communication. Her claim was successful. The defence of volenti non fit injuria was found not applicable in the case of an unsound mind.

Volenti non fit injuria in context of sporting  events  

If a participant takes part in a sporting event, he/she de facto consents to the potential injuries.

Condon v Basi  

The petitioner suffered a broken leg while playing a football match for the Whittle Wanderers.  The defendant was found to be reckless and the actions were considered to be out of the rules  and regulations of the game. So the verdict stated that the defendant was in a breach of duty  and the defense of Volenti Non Fit Injuria was not applicable here.  

A player can consent to a risk within the ambit of the game, but not the risk beyond the  standard rules of the game.

Volenti non fit injuria in relation to drunk  drivers

Dann v. hamilton.

In the above case of Dann v. Hamilton, the plaintiff even after knowing that the driver was drunk chose to  travel in the car instead of any other vehicle. Due to the negligent act of driving by the driver, an accident  occurred which resulted in the death of the driver and the plaintiff suffered severe injuries.

The plaintiff brought an action for the injuries against the representatives of the driver who pleaded the  defence of volenti non fit injuria but the claim was rejected and the plaintiff was entitled to get compensation.

In this case the maxim of volenti non fit injuria was not considered because the driver’s intoxication level was  not that high to make it obvious that taking a lift could be considered as consenting to an obvious danger. 

This decision was criticized for a number of reasons as the court did not consider  contributory negligence while deciding the case but the court’s reason for not doing so  is that it was not pleaded that is why it was not considered.  

Volenti non fit injuria in case of Occupiers  Liability 

Titchener v british railways board   .

The Claimant, a 15 year old girl, was out walking with her boyfriend who was 16. They  took a short cut across a railway line and they were both hit by a train. He was killed and  she was seriously injured. There was a gap in the fence at the place where they crossed  and there was a pathway leading to this gap which suggested that there was repeated  trespass. Also it was accepted that either the Defendant was aware of the gap or would  have been aware upon reasonable inspection.

The Defendant raised the defence of  volenti under s.2(3) of the Occupiers Liability (Scotland) Act 1960. 

The scope of the duty owed to trespassers varies on the circumstances. On the facts of  this case the Defendants did not owe a duty to a 15 year old trespasser who was fully  aware of the risks. Even if the Defendant did owe a duty of care the defence of volenti  under s.2(3) would succeed.

• To conclude the theory section with, Volenti Non Fit  Injuria is one of the most relevant defenses in torts. 
• The key essentials required consist of prior knowledge  of the risk and the free consent to perform the act. 
• The limitations of the defense come into play when the  consent is obtained by fraud, when an unlawful act is  committed, when it consists of negligence on the side  of the defendant, or it involves any case of rescue. 
• The applications and ambit of this maxim are various  and they spread vastly through diverse jurisdictions  and legislations. 

LANDMARK CASES ON DOCTRINE OF VOLENTI NON FIT INJURIA

Padmavati v. dugganaika.

• Hall v. Brooklands Auto Racing  Club 
• Wooldridge v. Sumner 

Thomas v. Quartermaine

• Morris v Murray 
• Khimji V. Tanga Mombasa  Transport Co. 
• Teh Hwa Seong V. Chop Lim Chin  Moh & Anor P 
• In the above case, the driver gave a lift to two  strangers in a jeep. Eventually, the front-wheel failed  due to which the jeep could not be controlled. Both the  strangers tossed away, one of them instantly dying  and another suffering injuries.  
• The plaintiff was not held liable in this case on the  basis of the principle, ‘master cannot be held liable’ as  it was a sheer case of accident and the strangers had  voluntarily entered into the vehicle. The principle of  Volenti non fit injuria was not applicable here. 

Hall v. Brooklands Auto  Racing Club

• In the case of Hall v. Brooklands Auto Racing Club,  plaintiff was a spectator at a motor car racing event  organised at Brooklands on the track owned by  defendant’s company. There occured a collision  between the two cars during the race, causing an  impact resulting in one of them landing among the  spectators, thereby injuring the plaintiff.  
• It was held that the plaintiff impliedly took the risk of  the injuries and hence the defendant was not liable for  the injuries suffered by the plaintiff. 

Wooldridge v. Sumner

• The plaintiff, in the above case was a photographer at  a horse show and was standing at the boundary of the  arena. One of the horses took a round around the bend  hastily and as a result plaintiff got frightened. He fell  into the course and suffered severe injury.  
• It was held by the court that the defendant was not  liable as it was the plaintiff who impliedly took the risk  of such injuries. 
• In this case, plaintiff was an employee in the  defendant’s brewery. While trying to detach the lid  from a boiling tank of water, the lid got stuck and he  had to apply an extra pull for removing the lid. The  force produced due to the extra pull tossed him into a  container which contained a burning hot liquid. He  suffered serious injuries due to the same. 
• The defendant was not liable as the danger was visible  and the plaintiff voluntarily did an action which caused  him injuries. 

Morris v Murray  

• The Plaintiff and Defendant had been drinking the  whole day. The Defendant with a pilot licence and light  aircraft, proposed that they go on flight and the  claimant agreed to the same. 
• The Defendant took off but crashed shortly after. He  was killed whereas the plaintiff was seriously injured.  In an action of negligence, the defendant raised the  defence of volenti non fit injuria.  
• The court allowed the defence as the actions of the  claimant in accepting a ride in the aircraft from an  intoxicated pilot was self evident that he voluntarily  accepted the risk of injury and waived his right to  compensation. 

Khimji V. Tanga Mombasa  Transport Co. Ltd

In the above case, the plaintiffs were the personal  representatives of a deceased who met his demise  while travelling in the defendant’s bus. The bus  reached a place where road was flooded and risky to  cross. However, the driver and a few passengers,  including the deceased, insisted that the journey  should be continued. The bus drowned with all the  passengers aboard.

The court held that the plaintiff’s  action against the defendants could not be maintained  because the deceased knew the risk involved and  assumed it voluntarily and the defence of volenti  injuria rightly applied . 

Teh Hwa Seong v. Chop Lim  Chin Moh & Anor p 

• In the above case, the plaintiff was travelling as a  passenger in a lorry which was being driven by the  defendant. The lorry through the course of the journey  met an accident in which the plaintiff suffered several  injuries. In this case, the owner of the lorry claimed  that  
• In this case, the defendants failed to seek the defence  of ‘Volenti Non Fit Injuria’ as the court doubt the  plaintiff was informed about the above mentioned  condition. If the defendant had provided the Plaintiff  with prior and sufficient notice about the risk, then  the defence would have been successful.

RECENT CASE LAWS ON VOLENTI NON FIT INJURIA

Ravindra padmanabhan (dr.) v  lakshmi rajan and anr. (2007) , sharlet augustine and ors. vs  k.k. raveendran and ors. (1992) , woods v multi sport holdings  pvt ltd (1996) .

• Cafest v. Tombleson (2004)

Urmila Devi v Mcd & Ors. (2016) 

• Gopalpur Victims Association  Vs. Delhi Jal Board and Ors.  (2011) 
• Ekta kapoor v State of M.P.  (2020) 
• In the above case, the plaintiff visited a hospital in  order to get a tumour from her breasts removed.  The doctor however removed her uterus as well  while operating, without any utility.  
• The court gave a verdict in the favour of the  plaintiff as no consent was present. 
• The defence of Volenti Non Fit Injuria was rejected.
• The plaintiff was a passenger in a bus and upon reaching  ‘Karingalikkadu’, the bus dashed against an electric post as  a result of which the live wire came into contact. When the  plaintiff tried to execute a rescue operation for the fellow  passengers to get out of the bus and he got severely  electrocuted while performing it. The accident was an  outcome of the rash and negligent driving of the driver. 
• The court held that the defence of ‘Volenti Non Fit Injuria’  could not be claimed here even if the act of plaintiff was  voluntary while carrying an rescue operations because the  negligent act of driving resulted in this accident and danger  invites rescue. In such a case the Plaintiff is entitled to get  a compensation . 
• In the above case, the plaintiff was hit by a cricket  ball in an indoor match at the defendant’s facility  and suffered serious injury to an eye as a result of  which he lost his vision. 
• It was held by the court that the defendant’s failure  to provide the plaintiff with a helmet or warning  about the risks involved constituted a breach of its  duty of care towards the plaintiff and hence the  duty of care was breached.

Cafest v. Tombleson (2004) 

• I n the above case, while roller skating the  plaintiff injured her wrist and claimed damages  on the basis that the defendant did not provide  her wrist guards and a warning for risks  involved.  
• In this case, the court held that the defence was  successful and hence defendant was not held  liable, as the court declared that the plaintiff  had accepted all the known risk linked with the  game.
• In the above case, a bunch of petitions were filed against  the Municipal Corporation Delhi when numerous deaths  took place due to drowning of the victims in a dirty  sewer. It resulted due to adjacent slippery grounds. A  man while rescuing a kid drowned in sewer and  succumbed to death. The wife of whom claimed  damages from the respondent. 
• The defendant was held liable in the decision held by the  court as it was its duty to ensure maintenance of the  sewer and the land around it. The maxim of Volenti Non  Fit Injuria doesn’t apply as it was a case of rescue even  when the plaintiff was aware of the risks and gave  consent for the injury. 
• The injury occured due to the respondent’s negligence.

Gopalpur Victims Association Vs.  Delhi Jal Board and Ors. (2011) 

• In the above mentioned case, four children  drowned in a pit while playing in an open and  vacant land. Although the application of Volenti  Non Fit Injuria had a scope of application, it was  still rejected as it was an obvious case of  negligence on the behalf of the respondents. No  warning signs or prohibition alerts were placed  near the pit. 
• Delhi Jal Board was under an obligation to  ensure that nobody enters the pit, the failure of  the same resulted in the party being liable for  damages. 

Ekta kapoor v STATE OF M.P.  (2020) 

• In the above case, the petition was dismissed  under the same defense. The issue was  regarding the content of a web series on the OTT  platform Alt Balaji, where a certain amount of  inappropriate and obscene acts were depicted. 
• After hearing arguments from both the  counsels, the decision was held in the favour of  the platform as the purchase of the subscription  itself by the viewer consents to the  consumption of such kind of content. 

LITERATURE  REVIEW

• The given maxim is based on the principle of justice and good  conscience. It is so because one simply cannot complain of harm to  which they have consented to with their full knowledge and free will.  (Singh, 1975). 
• It is to be noted that the origins of the maxim go back to the old  civil law, wherein the maxim meant a defence arising from a specific  assent by the party injured to a particular act, which, if done without  such assent, would be a legal wrong (Warren, 1895). 
• In fact, this maxim is so old that there is evidence that it might  have existed during the times of the great Greek philosopher Aristotle  too (Child, 1905). 
• A major reason why the team decided to choose this topic over  others was because despite its incredible history, volenti non fit  injuria continues to be one of the most highly debated topics in Tort  Law. One incident to highlight this was when Lord Reid very famously  said, “the defence of volenti non fit injuria has had a chequered  history” (Atiyah, 1965).
• A reason why it has been so highly debated is because practical  application of the application of the maxim has not been without difficulty  and considerable confusion. Historically, the Romans had allegedly accepted  its implications though, which was very significant back then (Price, 1952). 
• However, continuing the theme of highly debated topics, it is also  argued that the Romans had merely accepted it as a legit principle and not a  legal rule (Parmanand, 1985). 
• Over the years, the given maxim has created a lot of confusion  because of how vague it might sound and as (Paton, 1940) rightfully said,  “unless the courts adopt a more studied approach to the defence of volenti,  the law runs the risk of falling into confusion.” Thus, we will be looking at the  details of this maxim now. 
• This defence absolves the tortfeasor from any liability, if it is proved  that the tort arose out of an informed and wilful act of the injured party. So,  consent of the aggrieved party forms the essence of this defence. This  essentially requires knowledge of the risk, consent and the illegal act itself  (Menon, 2019).
• Accordingly, it can be concluded that consent is a major element in  this maxim. Literature states that it is arguable that a person can be  coerced into giving consent due to economic reasons, yet, that these  ‘economic coercion of circumstances’ would be internal motives to consent,  which would not invalidate the given consent. (Beyleveld et al., 2007). 
• As long as the person to whom the consent is given is not responsible for the  deteriorated economic situation, or is refusing to give a reasonable  alternative, the given consent would be legitimate, or so is argued (Jones,  2012). 
• With such complexities, a statement that somewhat helps is believing  that the degree of vulnerability and the harmfulness of the act correlates  with how much weight must be given to the consent (Bergelson, 2007). 
• With regard to the discussion on consent, an interesting observation is that  some just cannot see why someone could consent to the intended  exploitation, while others understand the motives of those who do consent.  It is these two sides which makes it almost impossible to come to a  unanimous perception of the scope of consent. This is just the beginning of  how complicated an issue related to consent and our maxim at hand might  be (Rijken, 2015).
• Something that adds to this complication is the fact that 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 (Monika, 2019). 
• Another essential aspect of this maxim is that the mere knowledge of the  impending wrongful act or the existence of a wrongfully caused danger does not  in itself amount to consent even though no attempt is made by the plaintiff on  his/her part to prevent or avoid that particular act of danger (Verma, 2013). 
• What makes matters worse is its confusion with contributory negligence  but it is important to note their differences, the most important one being that  Volenti Non Fit Injuria is a complete defence, while contributory negligence is a  defence based part of the fault of the defendant (Raje, 2018).  
• Thus, it can be argued that employing this maxim must be a very confusing  task, but it can do wonders in some limited, specific situations too, which makes  it impossible to ignore it has a viable defence in Torts (Adams, 1994). 
• While these readings might make it seem like the maxim is not really a  good defence and that it requires a lot more time to develop comprehensively, it  is safe to predict that the immediate future will see little change in the use of the  defence by the courts (Wade, 1961).

CONTEMPORARY DEVELOPMENTS

The maxim of ‘Volenti Non Fit Injuria’ is based upon the  fundamental principles of of good concise and justice  since no man can seek remedy for any harm he/she has  willingly consented to with his free will and full knowledge  about the same.” Volenti non fit injuria” is strictly not a  defence, but a rule of law regarding, a plaintiff’s conduct, it  translates from Latin as “to one who volunteers, no harm is  done”.  

Borrowed from the primitive civil law originally, the maxim  meant a defence arising from a specific assent by the party  injured to a particular act, which, if done without such  assent, would be a legal wrong.  

It is widely believed that the maxim of ‘volenti non fit injuria’  is no longer considered a possible defence in the modern  times, and that case law decisions of the 19th century  made it impossible to be used in today’s world.  

However, in actual fact it has been regularly used, not  always successfully, throughout the 20th century, and  continues to be used today. 

A study of the maxim of ‘volenti non fit injuria’ in  various legal systems across the world and the extent  to which the concept of ‘assumed risk’ is adapted and  recognized in these legal systems. 

• English law  
• Australian law  
• Israeli law  
• German law  
• Swiss law  
• Spanish law  

With regard to instances of voluntary assumption of risk,  the law of England, Australia and Israel acknowledges that  it applies only as a ground of justification and the  requirement that consent must not be contra bonos  mores is not considered.  

German law recognises instances where a plaintiff  voluntarily assumes the risk of harm but generally applies  it as a defence limiting liability.  

Swiss and Spanish law recognise voluntary assumption of  risk in the form of contributory intent, and depending on  the circumstances, the judge has the discretion to either  exclude or limit liability.  

Greek law does not recognise voluntary assumption of risk  as a ground of justification but recognises it in the form of  contributory intent which may serve to either exclude or  limit liability. In spite of some countries not recognising  contributory intent applying as a complete defence,  

Swiss, Spanish and Greek law do acknowledge  contributory intent and may apply it as a complete  defence.

APPLICATION OF THE MAXIM IN  CURRENT EVENTS:  

The practice of jallikattu.

The ancient festival of Jallikattu celebrated widely  in the southern states, especially Tamil nadu  comprises of a dangerous sporting event.  

In this event, a breed of ferocious bulls is released  into a crowd of people and an attempt to either ride  or stop a bull is made. This sport has been  criticised and banned to a massive extent due to  various reasons. 

Does the maxim hold any relevance in this regard? 

If a person gets into a bullfight during Jallikattu and  gets injured, he would not be able to claim  compensation or damages from the authorities or  the owner of the bull. 

The maxim of Volenti Non Fit Injuria fits well in this  case as a defense, the reason being: – 

• The sufferer had the knowledge of the  forthcoming harm. 
• The sufferer gave his free consent by  participating in this sport.

THE PAN INDIA VACCINATION DRIVE

As we all might be aware of the largest global vaccination drive taking place in india against the  Covid 19 pandemic kickstarted on 16th January 2021. 

Soon after the vaccination of lakhs of frontline  workers, some showed adverse reactions. The turnout  for vaccine receivers after which declined at  proportionate rate. Even a very few deaths in extreme  situations were reported.  

The government clearly made the vaccine drive  voluntary for people. 

Is the government or the manufacturer liable in case of  any adverse event?

In this case, the answer is not quite simplified.  Both the arguments hold equal weightage. 

Ideally, the system and the manufacturer will  not be held liable under the principle of volenti  non fit injuria. As explicitly stated by the  authorities that the vaccination is completely  voluntary, a person receiving it consents to the  after-effects of the same. Comprising of both  positive and negative 

But provided that the information regarding  Phase 3 trials is missing and the efficacy data is  yet absent from the public domain, it is the duty  of the government to take care of the same. 

Although they cannot be sued, they still owe a  reasonable duty of care towards its citizens.

2017 GORAKHPUR HOSPITAL DEATHS

The horrific disaster of 2017 BRD Medical College was about the death of 63 babies due to lack of oxygen in Gorakhpur. It was a clear case of medical negligence  by the authorities. 

Although some arguments were made in the support of the authorities by calling it a ‘natural calamity’ or  just a ‘misfortunate failure’. 

In this case, just the admitting of sick babies does not imply consent to accepting all the risks, even if  caused by negligence of the responsible, and hence  the authorities are bound to pay damages which they  have failed to do so. 

REFERENCES  

• TW Price, Volenti Non Fit Injuria, Tydskrif vir Hedendaagse Romeins-Hollandse Reg (1952), https://heinonline.org/HOL/Page?handle=hein.journals/tyromhldre15&div=8&id=&page=&collection=journals
• PS Atiyah, Causation, Contributory Negligence and Volenti Non Fit Injuria, Canadian Bar Review (1965), https://heinonline.org/HOL/Page?handle=hein.journals/canbarev43&id=615&collection=journals&index=
• Terry Lantry, Volenti Non Fit Injuria Case Digests, American Business Law Journal, (1973), https://heinonline.org/HOL/Page?handle=hein.journals/ambuslj11&id=92&collection=journals&index=
• NGL Child, Volenti Non Fit Injuria, Juridical Review (1905), https://heinonline.org/HOL/Page?handle=hein.journals/jure17&id=47&collection=journals&index=
• S. P. Singh, Volenti Non Fit Injuria and Tortious Liability, Journal of the Indian Law Institute (1975), https://www.jstor.org/stable/43952935?seq=1
• Charles Warren, “Volenti Non Fit Injuria” in Actions of Negligence, Harvard Law Review (1895), https://www.jstor.org/stable/1321649
• Page Keeton, Personal Injuries Resulting from Open and Obvious Conditions, University of Pennsylvania Law Review (1952), https://www.jstor.org/stable/3310178
• Glanville L. Williams, Joint Torts and Contributory Negligence, Modern Law Review (1952), https://www.jstor.org/stable/1090466
• GW Paton, Some Problems Relating to Violenti Non Fit Iniuria, Brooklyn Law Review (1939), https://heinonline.org/HOL/Page?handle=hein.journals/brklr9&id=150&collection=journals&index=
• Thomas Beven, “Volenti Non Fit Injuria” in the Light of Recent Labour Legislation, Journal of the Society of Comparative Legislation (1907), https://www.jstor.org/stable/751825
• John W. Wade, The Place of Assumption of Risk in the Law of Negligence, Louisiana Law Review (1961), https://digitalcommons.law.lsu.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=2951&context=lalrev
• Prachi Verma, A Critical Analysis of Volenti Non Fit Injuria, NLU Lucknow (2013), https://www.academia.edu/36502183/Tort_Law_project_on_VOLENTI_NON_FIT_INJURIA_CRITICAL_ANALYSIS
• Maurice Adams, Volunti non fit injuria or contributory negligence? A comparative review of three football-cases, European Review of Private Law (1994), https://kluwerlawonline.com/journalarticle/European+Review+of+Private+Law/2.2/ERPL1994036
• Sakshi Raje, Volenti Non Fit Injuria, Law Times Journal (2018), http://lawtimesjournal.in/volenti-non-fit-injuria/
• Tanvi Menon, What is Volenti Non Fit Injuria, Journal on Contemporary Issues of Law (2019), https://jcil.lsyndicate.com/wp-content/uploads/2019/07/VNFI-Tanvi-M.pdf
• Winfield and Jolowicz, Winfield and Jolowicz on Tort (Sweet & Maxwell 2010) 
• Clerk & Lindsell, Clerk & Lindsell on Torts (Sweet & Maxwell 2017) 
• Salmond and Heuston, Salmond and Heuston on the Law of Torts (Sweet & Maxwell 1981) 
• Tony Weir, A Casebook on Tort (Cambridge University Press 2009) 
• C.R.J.J. Rijken, Volenti Non Fit Injuria, Tilburg University Journal (2015), http://arno.uvt.nl/show.cgi?fid=136494
• Monika, Volenti Non Fit Injuria, iPleaders (Jan. 25, 2021, 9:29 PM), https://blog.ipleaders.in/volenti-non-fit-injuria/
• Rajas Salpekar, Volenti Non Fit Injuria – A Conceptual Analysis, Legal Encyclopaedia (2020), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3675389
• Subham Chatterjee, Volenti non fit Injuria: A Necessary Evil For The Defendant, Law Corner (Jan. 25, 2021, 9:29 PM), https://lawcorner.in/volenti-non-fit-injuria-a-necessary-evil-for-the-defendant/
• The Editors of Law Circa, Volenti Non-Fit Injuria, Law Circa (Jan. 25, 2021, 9:29 PM), http://lawcirca.com/volenti-non-fit-injuria/
• Neha Khanna, Volenti Non-Fit Injuria, Rama University Journal (2020), https://www.ramauniversity.ac.in/online-study-material/law/llb/isemester/lawoftorts/lecture-27.pdf
• Samriddhi Pandey, Volenti non fit injuria – Concept, Meaning and Case Laws, Legal Bites (Jan. 25, 2021, 9:29 PM), https://www.legalbites.in/volenti-non-fit-injuria/
• The Editors of Desi Kanoon, Exceptions To The Principle Of Volenti Non Fit Injuria, Desi Kanoon (Jan. 25, 2021, 9:29 PM), http://desikaanoon.in/exceptions-to-the-principle-of-volenti-non-fit-injuria/
• The Editors of All India Legal Forum, Volenti Non Fit Injuria, All India Legal Forum (Jan. 25, 2021, 9:29 PM), https://allindialegalforum.wordpress.com/2020/10/14/volenti-non-fit-injuria/
• The Editors of Racolb Legal, Applicability of Volenti Non Fit Injuria in Sports, Racolb Legal (Jan. 25, 2021, 9:29 PM), http://racolblegal.com/applicability-of-volenti-non-fit-injuria-in-sports-both-from-players-and-viewers-perspective/
• The Editors of E-LawResources, Volenti non fit injuria, E-LawResources (Jan. 25, 2021, 9:29 PM), http://www.e-lawresources.co.uk/Volenti-non-fit-injuria.php

Anshita Shrivastava , Danish Raina, Varun Goswami 

First year students – BA LLB  (hons)

Symbiosis law school, Pune

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Volenti non fit injuria (Defence of Consent)

• May 28, 2021
• Judiciary Notes , Law of Torts

Volenti non fit Injuria

According to the general principle of law, every man is the best judge of his interest and therefore one who voluntarily agrees to suffer harm is not allowed to complain for that. Consent to suffer harm may be express or implied. The maxim volenti non fit injuria means voluntarily suffered injury is not fit for action. Therefore, if the plaintiff voluntarily agrees to suffer some harm, he is not allowed to complaint for that and his consent serves as a good defence against him. Consent to suffer the harm may be express or implied. For example when somebody is invited to house, then in that case he cannot be sued in a court of law for trespass as the consent is express. Same is the Case with the spectator who is injured by a car coming on the track during a motor race, as in this Case there is an implied consent to suffer harm.

Essential Conditions

The application of the maxim ‘volenti non fit injuria’ depends on the existence of following conditions:

• Consent to suffer harm should be voluntarily given by the plaintiff; and
• The plaintiff had the knowledge of risk.

The Plaintiff must know the nature of the act or work and its extent of danger or risk. If he does not know, or reasonably cannot understand the nature and extent of risk involved with the performance of an act, it will be presumed that he had no knowledge of the risk. There is a distinction between knowledge and assent.

Knowledge does not necessarily imply assent. In order to apply the maxim two conditions are required: Firstly, the plaintiff was aware of the risk involved and secondly, he with knowledge agreed to suffer harm.

In Hall v Brooiclands Auto Racing Club (1931) 1 K.B. 205 , the plaintiff was a spectator at a motorcar race. During the race, there was a collision between two cars, one of which was thrown among the spectator, thereby injuring the plaintiff. Held that the duty towards spectator was the duty of care rather than the duty of skill. Thus, error of judgment or lapse of skill on the defendant’s part will not make him liable in a horse show [Woolridge v Summer (1963) 2 QB 43].  

In Padmavati v Dugganaika (1975) 1 Karnt. L.J. 93 , while the driver was taking the jeep for filling petrol in the tank, two strangers took lift in the jeep. Suddenly one of the bolts fixing the right front wheel to the axle gave way toppling the jeep. The two strangers were thrown out and one of them died. Held that neither the driver nor the master could be made liable, firstly, because it was a case of sheer accident and, secondly, the strangers had voluntarily got into the jeep.

• The consent must not have been induced by fraud, compulsion, coercion, undue influence, misrepresentation, mistake. etc. Moreover the act done by the defendant must be the same for which the consent is given. For example, if a guest is requested to sit in the drawing room and without any authority or jurisdiction he enters the bedroom, he would be liable for trespass and he cannot take the defence of your consent to his visit to your house. When a person is incapable of giving his consent because of his insanity or minority, consent of such person’s parents or guardian is sufficient.
• Consent obtained by fraud is not real. Thus, in v Williams (1923) 1 K.B. 340 , the accused, a music teacher, was held guilty of rape when he had sexual intercourse with a minor girl on the pretext of an operation to improve her voice. Similarly, the consent obtained under compulsion is not a free consent. Such a situation generally arises in master-servant relationship. The servant may sometime be faced with the situation of either accepting the risky work or losing the job. But if a workman adopts a risky method of work of his own free will he can be met with the defence of volenti non fit injuria ( Imperial Chemical Industries v Shatwell 1965 A.C. 656 ).

Knowledge of a danger or risk is not the same thing as the consent to bear the danger. In order to avail knowledge as a defence, it is necessary first to prove that the plaintiff was aware of the risk and second that he, knowing the same, agreed to suffer the harm. Thus, mere knowledge of the risk (Scienti non fit injuria) is not enough (it is not a defence). It is not correct to say that no injury is done to one who knowingly does an act.

`Scienter’ is a word applied especially to that clause in a declaration of certain classes of actions in which the plaintiff alleged that the defendant knowingly did or permitted that from which arose the damage of which the plaintiff complained. In an action of deceit the scienter must be averred and proved. In Cutler v United Dairies (London) Ltd. (1953) 2 K.B. 297 , the driver of a cab with restive horses cried for help. The plaintiff went and attempted to hold the horse but it threw him on the ground causing him injuries, in respect of which he sued the defendant. Held that the plaintiff has no right of action, as he must have known that his attempt to hold the horse was attendant with risk, and therefore, the maxim volenti non fit injuria applied.

In Bowater v Rowley Regis Corpn. (1944) K.B. 476 , the plaintiff, a cart driver was asked by the defendant’s foreman to drive a horse, which to the knowledge of both, was liable to bolt. The plaintiff protested, but ultimately took out the horse in obedience to the order. The horse bolted and the plaintiff was injured thereby. Held, the maxim volenti non fit injuria did not apply and the plaintiff was entitled to recover.

In Smith v Baker (1891) A.C. 325 , the plaintiff was workman employed by the defendant on working a drill for the purpose of cutting a rock. By the help of a crane, stones were being conveyed from one side to the other, and each time when the stones were conveyed, the crane passed over the plaintiff’s head. While he was busy in his work a stone fell from the crane and injured him. The plaintiff had been generally aware of the risk; however, held that the mere knowledge of the risk without the assumption of it does not help in applying the maxim. It must be shown that the plaintiff agreed or appreciated that what risk there was should lie on him.

In Dann v Hamilton (1939) I K.B. 509 , a lady knowing that the driver of the car was drunk chose to travel in it instead of an omnibus. Due to the driver’s negligent driving an accident was caused resulting in the death of the driver himself and injuries to the lady passenger. The court held that the lady was entitled to claim compensation. The reason why the defence of volenti non fit injuria was considered to be not applicable was that the degree of intoxication of the driver was not to such an extent that taking a lift could be deemed to be consenting to an obvious danger.

Limitations/ Exceptions to the application of volenti non fit injuria  

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Indian Legal Solution

Volenti non fit injuria.

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

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

INTRODUCTION

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

MEANING OF MAXIM

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

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

Essentials of volenti non fit injuria

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

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

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

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

Woolridge v.  Summer 1963 [3]

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

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

Lakshmi Rajan v. Malar hospital 1998 [5]

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

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

Consent meaning and types

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

Consent can be of two types

• Express consent

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

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

• Implied consent

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

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

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

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

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

• Padmavati v. Dugganaika 1975 [8]

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

Consent not for an illegal act

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

Illustration

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

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

Consent obtained by fraud

Consent obtained by fraud is not considered proper consent.

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

Consent obtained under compulsion

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

Bowater v. Rowley Regis Corporation [10]

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

Mere knowledge does not imply assent:

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

Smith v. Baker & sons [11]

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

Negligence of the defendant

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

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

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

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

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

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

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

Rescue cases.

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

Haynes vs. Harwood [13]

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

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

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

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

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

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

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

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

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

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

[3] [1963] 2 QB 43

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

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

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

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

[8] [1975 ACJ 222]

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

[10] (1944) K.B. 476

[11] (1891) AC 325

[12] 1956 2 QB 264

[13] (1935), 1 KB 146

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

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