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
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
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
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
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
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
- There is no consent when someone consents to an act without free will or
- It is also applicable in the cases where the person giving consent does
not have full freedom
- This situation generally arises in a master-servant relationship where
the servant is
compelled to do everything that his master asks him to do.
- 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.
- 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
- 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
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
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
- Rescue cases
- The unfair contract terms act, 1977
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
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
- 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
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
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
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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