July 31, 2021

Defence to Torts: volenti non fit injuria

Law of Torts

There are many instances where it has been found that the loss is being suffered by a person due to the act of the other, but for which he has no remedy in tort law. It so happens because that the person suffering the harm has consented for the same. Example, where a spectator of a cricket match gets hit by the cricket ball at the stadium without any part of negligence and wrongful intention on the part of player or the defendant, in that situation the plaintiff doesn’t have any remedy under tort law as he himself has consented for such risk at the time of purchasing the tickets. This consent is a good defence for the defendant under tort law and this is concept is termed as ‘volenti non fit injuria’.

The term volenti non fit injuria is a Latin maxim which refers to a willing person, an injury is not done. It is a common law doctrine, according to this doctrine the person who voluntarily gives consent for any harm to suffer would not be liable to claim any damages for the same and this consent serves as a good defence against the plaintiff. The person who himself voluntarily waived or abandoned his right cannot have any claim over it. Provided this doctrine is only applicable to the extent that a normally prudent person would have assumed to have suffered the risk.

So, if a batsman is hit by his other player having the wrong intention then this defence won’t serve as the good defence against the defendant, as the batsman has agreed to suffer the harm caused to him during the game and that too not voluntarily with the wrong intention.

From the plaintiff’s point of view, it can also be termed as ‘consent to run a risk’. In this context, the defendant can run out of risk and can prevent himself from the tort liability arising out of the first case. That is if, for example, consent given to a person for visiting his house can save him from the trespass to land.

It may also happen that the consent so obtained may either be express or implies by the act or the conduct of the parties. Like where a spectator at a motor race was being injured by a car which reached there because of the collusion between the two during the race, and therefore the spectator was not liable for any action against the car owner and neither towards the club. Similarly, a person going on a highway is presumed to consent to the risk of pure accidents.

The term ‘volenti non fit injuria’ originally reads as Nullainiuriaest, quæ in volentem fiat formulated by Roman jurist Ulpian.

The maxim is a full defence for the action of the defendant whose consent has been obtained from the plaintiff, and the plaintiff agrees to suffer the harm caused to him by that act. The part of proving negligence factor was a matter of controversy. Before 1945 there was no any specific difference between the contributory negligence and volenti non fit injuria. In pre-1945 to take defence, it was necessary to prove breach of duty. The judges were having a confusing view regarding contributory negligence and volenti non fit injuria. Some were of the view that for the defence to operate it is necessary that there should be express or implied consent between the parties for the defence to operate while the other felt that if there is any pre-existing danger and the plaintiff knew and had consented to that then there will no defence be available.

The maxim was standing on the principle of estoppels, which was applicable to the Roman citizens originally who gave consent for being sold as a slave. The defence here argued that the maxim here can’t be applied as for applying negligence there has to express contract between the parties and in its absence no negligence where duty is based on proximity or ‘neighbourship’ in Atkinian sense. In Dann vs. Hamilton, the judge expressed doubt whether the maxim could ever apply after the act is done as because if the consent is obtained from the claimant before the act of negligence is done then the claimant would not be able to have the knowledge of the act and till what extent he would be liable to suffer the harm.

In the case of Khimji vs Tanga Mombasa transport co. ltd (1962) was the case where the doctrine of volenti non fit injuria was rightly applied. In this case, the travelling bus containing some drivers in it reached a place where there was a flood. The driver insisted to stop the journey, but the passengers including the defendant insisted to continue the journey. As a result, the bus droned away and some passengers including the defendant died. It was held that the defendant claim can’t be maintained as the deceased knew the risk involved in the act.

For taking the defence of volenti non fit injuria it is necessary that:

a. The consent must be free

It is necessary that for pleading the defence of volenti non fit injuria the consent so obtained by the defendant must be free that is it should not be obtained by coercion fraud or through any other means. If such methods are used to obtain the consent the defence would fail in getting the relief.

Though it is also necessary that the act should only be done to the extent till the permission is granted exceeding the limit would also lead for non-application of relief. For example, if a postman is allowed to enter the house for delivering the dak, but if he went inside the house without permission he would be liable for trespass. Similarly, if the invited guest is asked to sit in the drawing room, he without any permission enters the bedroom he can be liable for trespass.

As in the case of Lakshmi Rajan vs. Malar Hospital Ltd., the old aged women of 40 noticed the lump in her breast. The lump has no effect on her uterus, but during surgery, her uterus was removed without any justification. It was held that the hospital authorities were liable for deficiency in service. It was also held that the patient’s consent for operation did not imply her consent for removal of the uterus.

b. Consent should not be obtained by fraud:

It is necessary that the consent so obtained by fraud would be void and the defence would not be available under such circumstances. As in the case of R. vs. Williams the accused for punished for raping 16 years old minor girl by obtaining consent by fraud under the pretence that his act was an operation to improve her voice. Whereas in the other case of R. vs. Clarence in this case, it was held that a husband was not liable for an offence when the husband failed to make her aware of his condition.

Under the first case the girl was not knowing the nature of activities being done, she was under the misconception of the surgical operation was being done and therefore the accused was liable and the defence was not available for him. Whereas in the second case the wife knew the nature of the act being done regardless that she didn’t know its consequences. Since the consent was given knowingly and without any fraud, the husband was able to save himself.

c. Mere knowledge does not imply assent:

For the successful defence of the doctrine it is necessary that

  • The plaintiff knew that the risk is there
  • He, knowing the same, agreed to suffer the harm

Mere completion of the first condition doesn’t imply the successful defence as the knowledge doesn’t imply for agreement suffer the risk involved.

As in the case of Bowater vs. Rowley Regis Corporation[9] the plaintiff was a cart driver who was asked by the defendant’s foreman to drive a horse which they both knew was liable to bolt. The plaintiff protested but later took out the horse in obedience to the order. The horse was bolted and the plaintiff was injured thereby. It was held that the defence of volenti non fit injuria can’t be applied as because the first it was master-servant relationship where the master knew the and have knowledge about the risk involved in the act, and also the cart driver didn’t give consent freely as he has to follow his masters order and therefore the plaintiff’s claim was granted, and the defence failed.

Yet another case of Smith vs. Baker[10] the plaintiff was an employee working for the defendant for cutting the rock through a drill. The working of his was at the same place from where the stones were being conveyed from one place to another. During his working hours, the stone felt over his head from which the plaintiff got injured. As a result, he files a suit against the defendant. The defendant took the plea that the plaintiff was aware of the risk involved in the working and therefore pleaded the defence of volenti non fit injuria. Against which the judgment was given by the House of Lords that as there was only knowledge of the risk but not the assumption of it and therefore the defence failed and the claim was maintained.

The scope of Doctrine is curtailed in Rescue cases:

Rescue cases form an exception in the applicability of the doctrine. When the plaintiff voluntarily jumps into the risk for saving somebody else, happened because of the wrongful act of the defendant he will not be liable to find shelter under the doctrine of volenti non fit injuria.

As in the case of Haynes vs. Harwood[12] here the defendant’s servant left two-horse van unattended in the street. Nearby there were some children were playing. A boy from one of them threw a stone towards the horse and horse bolted as a result the horse started running here and there. This created danger to women and children in the street living nearby. A policeman saw all this and dived into the scene to prevent the danger. Though he succeeded but was severely injured in doing so. Defendant was held liable, even when the defendant pleaded that he was just a policeman and was doing his duty.

Baker vs. T.E. Hopkins & son[13] in this case, due to the fault on the defendant’s side, the well was filled with the poisonous fumes of the petrol driven pump. Two of his workmen were to overcome by those fumes. Dr Baker was called to save them, he was also told about the risk involved in the same. Even after that, he jumped into the well knowingly of the danger involved. But soon after he was driven out from there, although on the way to the hospital he died. The widow of Dr Baker sued the workman’s employer for compensation. It was held that the defendant was liable for the compensation, as it was the rescue case. Even though he voluntarily agreed to take the risk, the plaintiff was liable to compensation.

For more notes on Law of torts, Click Here.

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1. http://www.jiwaji.edu/pdf/ecourse/law/Volenti%20Non%20Fit%20Injuria%20Dr%20J%20K%20Tiwari.pdf

2. http://lawtimesjournal.in/volenti-non-fit-injuria/

3. https://www.cambridge.org/core/journals/cambridge-law-journal/article/volenti-non-fit-injuria/81F53D11B419E5C46656ADB9BDFD7C02

4. http://www.legalservicesindia.com/article/2038/Applicability-of-Volenti-Non-Fit-Injuria-In-Sports.html

Author Details: Niharika Tanwar (Symbiosis Law School, Pune)


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