Through this article, I seek to analyse in detail the defence of the maxim of 'Volenti Non-Fit Injuria'
and its application under Tort Law. This has been done
by providing a brief understanding of this defence, its essentials and its
exceptions, which was possible by citing various cases and principles which have
prevailed through the years in the opinions of the distinguished courts and
In India, the law revolving around Torts is a relatively new development
and has no proper codification or provisions, as in the case of Criminal Law and
Contract Law but is decided on the basis of established principles.
Volenti Non-Fit Injuria:
Volenti non fit injuria is an often-quoted form of the legal maxim formulated by
the Roman jurist Ulpian which reads in original: Nulla iniuria est, qu'
volentem fiat. It is widely regarded as a defence for the commission of a
Tort around the world. It is found in the English Common Law System, the
Scottish Law, the taw in The United States and in Canada.
When a person consents for the infliction of harm upon himself, he has no remedy
for that under the law of torts. which means that if a person has voluntarily
consented to do something, or has given permission to someone to do a certain
thing, then he cannot claim damages under the Law of Torts.
Essentials of Volenti Non-Fit Injuria:
- The Risk must be known to the Plaintiff: When the plaintiff has the
knowledge that the act is going to cause harm or loss and in spite of that
accepts to do it, agreeing to suffer the injury, then the defendant will not
be liable for such an act. But only having the knowledge about such a risk
is not enough for the application of this maxim. However, having knowledge
of such a risk is not enough for the application of this defence, the principle of Scienti
non-fit injuria is recognised, which means that mere knowledge only
constitutes a partial defence and does not amount to consenting to the risk.
In the case of Dan v. Hamilton, the plaintiff chose to travel in Defendant's
car, even though he knew that The defendant was drunk. The car crashed, causing
injuries to him. The defence of volenti non-fit Injuria is applied when there is complete knowledge of the danger and proof of the person consenting to it.
Although knowledge of the danger can also be used as to be evidence of consent
to suffering it. Here in this case, the plaintiff knew that his friend was drunk
and still got in a car with this knowledge and thus, the court held that the
defendant could not be held liable, and getting in the car with him was consent
enough for the maxim to be applicable.
In Morris v Murray, the plaintiff and the defendant had been drinking
together, after which they boarded a flight on the plane which was being flown
by the defendant himself. The plane crashed and the plaintiff was injured. Here,
the Judge stated that the Defendant could rely on the defence of volenti non fit
injuria as knowledge could be easily inferred from the facts.
The danger here
was so great, that the The plaintiff must have known the intoxicated defendant
would be incapable of discharging his duty of care, and in boarding the flight wilfully, he implicitly waived his rights in the event of injury. Judge Fox
here also stated that:
The wild irresponsibility of the venture is such that the
law should not intervene to award damages and should leave the loss to lie where
Exemplifying this principle, it means that no damage or compensation can be
claimed by the defendant in a case where the knowledge of risk or injury was
known to the plaintiff. Where a man in case of a fire decides to jump into it to
save his neighbour's dog, he cannot claim damages as he knew the risk before
taking such an action and thus the neighbour here can rely on the defence of
Volenti Non-Fit Injuria.
However, in Smith v. Baker, the plaintiff was a workman who was employed by
the defendants to drill holes in rocks, next to a crane. The crane swung stones
over the plaintiff's head occasionally and the plaintiff was well aware of this
activity. While working, a stone fell from the crane and injured the plaintiff
who consequently sued the employers for negligence. The House of Lords held that
since there was mere knowledge of risk without the assumption of it, the defence
was not applicable, and the defendants were consequently held liable.
- The Plaintiff knowing the risk, voluntarily agreed to incur it: For the defence to be inapplicable it must be shown that the plaintiff has readily
agreed to suffer the said risk.
In Nettleship vs. Weston, the plaintiff was supervising the defendant in
learning to drive. The car crashed and the plaintiff was injured. Thus here, he
could not rely on the defence of volenti non-fit injuria. Lord Denning in his
judgement held that here the 'Knowledge of the risk of injury will not be
enough. Nor is a willingness to take the risk of injury. Nothing will suffice
short of an agreement to waive any claim for negligence.'
In the case
of Imperial Chemical Industries vs Shatwell, the employees ignored the
necessary measures for safety and undertook the risk of the work despite such
measures being provided for by the employer. Here the court observed that the
employees were negligent in their task and consented to the work without any
compulsion from the employer, thus could not hold the employer liable, as he
could exercise defence under volenti non-fit injuria.
Because even if they
thought that risk to be very remote, they gave their assent to it. This defence
also does not apply where the employer breaches his statutory duty of care.
Under the Road Traffic Act 1988 s.149(3), a driver cannot argue his passenger
willingly accepts the risk of his negligent driving to escape liability. Hence
there is no defence for drivers in claims made by passengers.
In the case of Baker v TE Hopkins , the plaintiff went down inside of a well
to rescue his colleague who was trapped. The plaintiff here was injured and sued
his employer in negligence. Here the defendant claimed that the plaintiff had
agreed to the risk when he attempted to rescue his colleague. Morris LJ held
that Defendant was liable. However, 'If a rescuer acts in disregard of his own
safety, it can be held that any injury to him was not the result of the
negligence that caused the situation of danger.' 
- Consent must be freely given: Similar to contractual agreements, consent
given under this should also be free, i.e. given without any sort of
external or internal compulsion. If the acquired consent is under any kind
of compulsion, the defendant cannot claim the defence of volenti nonfit injuria. For the
availability of the defence for the defendant, it must be shown that the consent
was given freely.
In the case of Lakshmi Ranjan v. Malar Hospital Ltd
, a 40-year-old woman,
noticed the development of a painful lump in her breast; however, it had no
effect on her uterus but during the surgery, her uterus was removed without
providing due justification. The court held that the hospital was liable for
deficiency in service and that the patient's consent for the operation did not
extend as her consent for the removal of her uterus. In the case where a person
is incapable of giving his consent by reason of comatose, insanity or minority,
then the consent can be taken by the parents or guardians and are sufficient to
be concluded as valid.
Exceptions to the Maxim:
- Consent may be expressed or Implied:
An essential for the consent, in this case, is that the consent to suffer such
harm may be expressed or implied. An example of expressed consent may be consent
given to doctors. usually, prior to performing operations, doctors take
permission from their family members, this is done so that if during the course
of the operation, should anything happen to the patient, the doctor won't be
held liable as the family members have consented to the operation.
type of consent would be implied consent. under implied consent, the consent
given is not expressly given but derived from one's actions in the circumstances
surrounding the case. An example here would be when one purchases a ticket to a
cricket match, and if a player hits the ball and the ball hits them, the person
won't receive any damages as in agreeing to attend the match, the person put
himself in a position where he knows the consequences, the defendant can take
the defence of volenti non-fit injuria.
- Consent obtained by Fraud:
In order for the defence of the maxim to be applicable, the consent must be free
and it should not be acquired by any fraudulent means. In the case of R. v.
Williams the defendant was a singing coach had convinced his student to have
sexual intercourse with him, stating that it would improve her voice and singing
capabilities. Here, the defendant had was held liable by the court as the
student's consent was obtained by fraudulent methods.
- No consent for illegal act:
No consent can legalize an act which is prohibited by the law, and the defence
of volenti nonfit injuria will not be applicable. It has been observed that no
person can give another person consent for committing a crime.
- Consent under Compulsion:
If the consent of any individual is obtained under compulsion, and not by
freewill, then the defendant cannot claim the defence of volenti non-fit injuria. As in the case of Imperial Chemical
Industries vs Shatwell, the employers were not held liable by the courts as
the employees ignored the precautionary measures and undertook the risk of the
work despite such measures being provided for by the employer. Here the court
observed that the employees were negligent in their task and consented to the
work without any compulsion from the employer, thus could not hold the employer
liable, as he could exercise defence under volenti non-fit injuria.
- Acts done negligently:
The defence does not extend to acts done
negligently. For example, an expressed consent given to a doctor to perform a
surgery, if the doctor performs the surgery with negligence after obtaining the
consent, he can be held liable and cannot claim the defence of volenti non fit
injuria. In the case of Slater v. Clay Cros Co the plaintiff was hit by a
train in the tunnel, the railway company had given instructions to the drivers
of its trains that they have to blow the whistle at the entrance of the tunnel
that they enter and also slow down their speed, the driver, however, did not
follow these instructions given by the company and as a result, the plaintiff
who walked into the tunnel was injured. The defendant company tried to take
defence under 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, the risk was enhanced by the negligence of the driver.
- Rescue Cases:
When the plaintiff voluntarily faces a risk to rescue someone from imminent
danger, then the defendant cannot rely on this maxim for defence. In the case of Haynes vs. Harwood the server of the defendant left
two-horse vans unattended in the street. A boy playing nearby threw a stone at
the horse and it started running hysterically. This posed a danger to the
neighbourhood, a policeman saw the scene and dived in to prevent the danger and
in doing so, was severely injured. The defendant was held liable even though the
policeman was only doing his duty.
Volenti Non-Fit Injuria is recognised as a legal defence in countries all around
the world. In the United States, it is identified by the principle of assumption
of risk; while in Scottish Law it is similar to the law of delict and in Canada,
it is known as the volentio principle which is prevalent in both England and in
This defence can be exercised by the defendant in cases where he/she can prove
that the risk of the task was known to the plaintiff who sued for damages. In
such a case, the defendant won't be held liable owing to the maxim. The
essentials of the application are as such: where the risk was known to the
plaintiff, and when the plaintiff knowing the risk agreed to incur it by giving
his free consent.
Although it seems like a good defence, in actual practice the defence of Volenti
Non Fit Injuria is often unsuccessful, were owing to the different facts and
circumstances depending on the cases, it often manifests into negligence or
contributory negligence; as observed in the case of Carey v Lake Macquarie
. Thus, it is made clear through this article with case
laws, principles and judgements in which cases the defence of the maxim of
Volenti Non-Fit Injuria
can and cannot be used by the defendant.
- Digest, Book 47, title 10, section 1 5, quoting Ulpian, On the Edict,
Bk. 56. Literally translated as "No injury is committed against one who
- The maxim translates to No injury is done to one who has knowledge of
- Dann v Hamilton  1 KB 509;  1 All ER 59;
- Morris v Murray  2 QB 6
- Smith v Baker & Sons  AC 325
- House of Lords, in Smith vs. Baker
- Imperial Chemical Industries Ltd. v. Shatwell [(1956) A.C. 656]
- Baker v. T E Hopkins & Son Ltd  3 All ER 225
- The Law Of Intervening Causation, Douglas Hodgson, 193-194, 2008
- Lakshmi Ranjan v. Malar Hospital Ltd. [III (1998) CPJ 586 (Tamil Nadu
- R. v. Williams [(1923) 1 K.B. 340]
- Imperial Chemical Industries Ltd. v. Shatwell [(1956) A.C. 656]
- Slater v Clay Cross Co Ltd  2 QB 264,  3 WLR 236
- Haynes vs. Harwood (1935) 1. K.B. 146
- Carey v Lake Macquarie City Council  NSWCA 4