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Application of Volenti Non-Fit Injuria

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 judges.

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' in volentem fiat.[1] 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:

  1. 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[2] 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[3], 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[4], 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 it falls.

    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[5], 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.[6]
  2. 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[7], 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[8] , 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.' [9]
  3. 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[10], 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.
  • 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.

    The second 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[11] 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.

Exceptions to the Maxim:
  1. 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[12], 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.
  2. 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[13] 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.
  3. 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[14] 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 India.

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 City Council [15]. 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.

  1. 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 consents
  2. The maxim translates to No injury is done to one who has knowledge of the facts.
  3. Dann v Hamilton [1939] 1 KB 509; [1939] 1 All ER 59;
  4. Morris v Murray [1991] 2 QB 6
  5. Smith v Baker & Sons [1891] AC 325
  6. House of Lords, in Smith vs. Baker
  7. Imperial Chemical Industries Ltd. v. Shatwell [(1956) A.C. 656]
  8. Baker v. T E Hopkins & Son Ltd [1959] 3 All ER 225
  9. The Law Of Intervening Causation, Douglas Hodgson, 193-194, 2008
  10. Lakshmi Ranjan v. Malar Hospital Ltd. [III (1998) CPJ 586 (Tamil Nadu SCDRC)]
  11. R. v. Williams [(1923) 1 K.B. 340]
  12. Imperial Chemical Industries Ltd. v. Shatwell [(1956) A.C. 656]
  13. Slater v Clay Cross Co Ltd [1956] 2 QB 264, [1956] 3 WLR 236
  14. Haynes vs. Harwood (1935) 1. K.B. 146
  15. Carey v Lake Macquarie City Council [2007] NSWCA 4

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