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General Defence In Law Of Torts (Volenti Non Fit Injuria)

When we are talking about law of torts, if any person commit any kind of wrongful act which causes injury to another person so in that case he is held liable and has to pay damages which is determined by the respected court, to the victim of such and act.

But there is some cases in which a person suffer from damages due to the act of another person but he cannot claim damage from that person because of the operation of defences of tort. One such defences available to a defendant is the defence of volenti non fit injuria in which the plaintiff is not entitled to damages because he consents to the act which has caused injury to him. In tort law, everyone has a responsibility to behave with reasonable care in order to avoid any injury that may result from their failure to do so.

For example, if a person is driving his car, he has a responsibility to drive it safely and within speed restrictions in order to avoid an accident that could damage others. This is the general rule in torts, although there are some exceptions that are allowed in these situations, and these are known as tort defences. A defendant can avoid culpability by relying on these defences, and volenti non fit injuria one of them.

What Is The Meaning Of Volenti Non Fit Injuria

In a very simple words we can say if a person give a consent to do an act which leads to him getting injured, then even if an injury is caused by the other person, so in that case he cannot claim any damages from that person because he himself give the voluntarily consented. The plaintiff's consent serves as a defence is known as "volenti non fit injuria", which implies that no harm comes to a willing person.

There is one more important thing is the consent to suffer harm may be express or implied.

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

But in the above illustration, if B was not aware of the conditions of brakes and then he sustained injuries sitting in it, he would not be stopped from claiming damages from A because here B did not give his consent to accept the risk of getting injured due to failure of the brakes.1 If you have a consent of defence so it is not mean your act of causing harm go beyond the limit of what has been consented. Let's take the example of a seen to try to understand the meaning of the above line.

A player in the game of hockey has no right of action if he hit while the game is being lawfully played. But if there is a deliberate injury caused by another player, the defence of volenti non fit injuria cannot be pleaded. Similarly, if a surgeon negligently performs an operation, he cannot avoid the liability by pleading the defence of the consent.2

Let's take a case example to understand the concept of volenti non fit injuria;

Hall v. Brooklands Auto Racing Club

The plaintiff went to see a car race in which two cars collied with each other and as result of the collision, the plaintiff who was sitting as an audience was also injured when one of the cars flew into the audience. Here the defence of volenti non fit injuria was applied because the plaintiff had given his consent to such a risk by going to the race. 3

See the another case example of Padmavati v. dugganaika, in this case the plaintiff had asked for a lift in the jeep of the defendant and while travelling in it one of the screw 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 this case, the court held that the defence of the volenti non fit injuria will apply and thus the defendant were not liable because the sitting in the jeep the plaintiff has assumed the risk of being injured in the accident.4

The Consent Must Be Free

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

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

In the case of Lakshmi Rajan v. Malar Hospital Ltd. there is a woman her age is 40 years, she is suffering from the problem of lump in her breast, and the lump had no effect on her uterus, but we she consent the operation of her breast so during operation doctor of the hospital remove her uterus without any kind of justification. Court held that in case the hospital was held liable due to the incompetancy in the service. It was also held that the patient's consent for the operation did not imply her consent to the removal of the uterus, so in this case the hospital authority was fully liable.5

Consent Obtained By Fraud

Consent obtained by fraud is not real consent and does not serve as a good defence. It was held in Hegarty v. Shine that merely concealing facts is not deemed a deception sufficient to void consent. In this case, the plaintiff's paramour had infected her with a venereal disease, and she sued him for assault. The action was dismissed on the basis that just disclosing facts does not constitute fraud, based on the concept ex turpi causa non oritur actio, which states that no action is arises from an immoral reason.

Here another case example related to consent obtained by fraud, In R. v. Williams A music teacher was found guilty of rapping a 16-year-old girl under the pretence of improving her throat and improving her voice. The girl misinterpreted the nature of the act performed on her and consented to it, mistaking it for a medical procedure to improve her voice. In this case victim misunderstood the very nature of the act which was being done. She had consented to the act of the accused believing that to be a surgical operation. That was no consent as could excuse the accused from his liability. 6

Consent Obtained Under Compulsion

  1. There is no consent when someone consents to an act without free will or under some compulsion.
  2. It is also applicable in the cases where the person giving consent does not have full freedom to decide.
  3. This situation generally arises in a master-servant relationship where the servant is compelled to do everything that his master asks him to do.
  4. Thus, there is no applicability of this maxim volenti non fit injuria, when a servant is compelled to do some work without his own will.
  5. But, if he himself does something without any compulsion then he can be met with this defence of consent.

Mere Knowledge Does Not Imply Assent

For the applicability of this maxim, the following essentials need to be present:
  • The plaintiff knew about the presence of risk.
  • He had knowledge about the same and knowingly agreed to suffer harm.
Let's see some case example to understand the given principles; In the case of Bowater v. Rowley Regis Corporation a cart-driver was asked to drive a horse which to the knowledge of both was liable to bolt. The driver was not ready to take that horse out but he did it just because his master asked to do so. The horse, then bolted and the plaintiff suffered injuries7

The decision was in the favour of the plaintiff. The defendants are guilty of the negligence. The defence of volenti non fit injuria is not applicable to this case as it does not apply to occupations that are not inherently dangerous such as working in an explosive factory or as a horse breaker.

Again there is case of Smith v. Baker in that case the plaintiff was an employer to work on a drill for the purpose of cutting rocks. Some stones were being conveyed from one side to another using crane surpassing his head. He was busy at work and suddenly a stone fell on his head causing injuries. The defendants were negligent as they did not inform him. The court held that mere knowledge of risk does not mean that he has consented to risk, so, the defendants were liable for this. The maxim volenti non fit injuria did not apply.

But, if a workman ignores the instructions of his employer thereby suffering injury, in such cases this maxim applies.

Negligence Of The Defendant

In order to avail this defence it is necessary that the defendant should not be negligent. If the plaintiff consents to some risk then it is presumed that the defendant will not be liable. For example, when someone consents to a surgical operation and the same becomes unsuccessful then the plaintiff has no right to file a suit but if the same becomes unsuccessful due to the surgeon's negligence then in such cases he will be entitled to claim compensation.8

There is a leading case of Slater v. Clay Cross Co. Ltd. the plaintiff suffered injuries due to the negligent behaviour of the defendant's servant while she was walking along a tunnel which was owned by the defendants. The company knew that the tunnel is used by the public and had instructed its drivers to give horns and drive slowly whenever they enter a tunnel. But the driver failed to do so. It was held that the defendants are liable for the accident.

Limitations On The Doctrain's Scope

The scope of the maxim volenti non fit injuria has been curtailed in the following cases:
  • Rescue cases
  • The unfair contract terms act, 1977

Rescue Cases

The defendant will not be able to use the defence of volenti non fit injuria if the plaintiff arrives voluntarily to save someone from a danger created by the defendant. There is a famous case of Haynes v. Harwood in this case the servant of the defendant left two horses unattended on a public road there are some children they threw a stone on the horses and due to this action of children the horses started bolting and create a danger for women and other people who were present on the road.

The whole situation a absorb by a police constable who was inside the police station, and he came to protect the people from the bolting horses during that he was injured severly. So in this case the doctrain of volenti non fit injuria is apply because this is a case of rescue and this doctrain a not applicable in rescue cases. However, if a person voluntarily attempts to stop a horse which creates no danger then he will not get any remedy.

There is another case related to rescue Hyett v. Great Western Railway Co. in this case the plaintiff got injured while saving the defendant's cars from a fire which occurred due to negligence on the part of the defendants. The plaintiff's acts seemed to be reasonable and the defendant was held liable in this case.

The Unfair Contract Act, 1977

The Unfair Contract Terms Act, 1977, limits the right of a person to exclude his liability resulting from his negligence in a contract.
  • Sub-section 1 puts an absolute ban on a person's right to exclude his liability for death or personal injury resulting from the negligence by making a contract or giving a notice.
  • Sub-section 2 is for the cases in which the damage caused to the plaintiff is other than personal injury or death. In such cases, the liability can only be avoided if a contract term or notice satisfies the reasonability criteria.
  • Sub-section 3 says that a mere notice or agreement may be enough for proving that the defendant was not liable but in addition to that some proofs regarding the genuineness of the voluntary assumption and plaintiff's consent should also be given.

Volenti Non Fit Injuria And Contributory Negligence Distinguished

Volenti non fit injuria is a complete defence but the defence of contributory negligence came after the passing of the Law Reform (Contributory Negligence) Act, 1945. In contributory negligence, the defendant's liability is based on the proportion of fault in the matter. In the defence of contributory negligence, both are liable the defendant and the plaintiff, which is not the case with volenti non fit injuria.

In volenti non fit injuria, the plaintiff knows the nature and extent of danger which he encounters and in case of contributory negligence on the part of the plaintiff, he did not know about any danger.

Volenti non fit injuria is a very good defence in law of tort. In this defence the defendant who have committed the tort is completely exempted from the liability because the plaintiff or victim already gave his consent to the commission of such an act. And there is a one condition consent must be free without any kind of pressure or undue influence. There is one more important thing in this condition the consent which is given by plaintiff may be expressed and implied.

There is certain kind of limitations like rescue cases and negligence of the defendant so in this type of cases defendant is obviously liable whether plaintiff gave the consent or not. Thus while allowing this defence, Courts have to ensure that the conditions of this defence are fulfilled and the act is not one which falls within the limitation imposed on this defence.

  • R. K. Bangia, Law of Torts (Allahabad Law Agency, Faridabad, 26th edn., 2021)
  • Hall v. Brooklands Auto Racing Club
  • Padmavati v. dugganaika
  • Lakshmi Rajan v. Malar Hospital Ltd.
  • Hegarty v. Shine
  • R. v. Williams
  • Bowater v. Rowley Regis Corporation
  • Smith v. Baker
  • Slater v. Clay Cross Co. Ltd
  • Haynes v. Harwood
  • Hyett v. Great Western Railway Co

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