Volenti Non Fit Injuria

Volenti non fit injuria is a general defence under the law of torts. The law of torts consists of various torts or wrongful acts whereby the wrongdoer violates some legal right vested in another person. The law imposes a duty to respect the legal rights vested in the members of the society and the person making a breach of the duty is said to have the wrongful act.

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This Story also Contains

1. What is Volenti Non-Fit Injuria?
2. Essential conditions for Volenti Non Fit Injuria
3. Limitations on the scope of Volenti Non-Fit Injuria
4. Difference between Volenti Non-Fit Injuria and contributory negligence
5. Landmark case on the doctrine of volenti non fit injuria
6. Conclusion

As a crime is a wrongful act, which results from the breach of a duty recognized by criminal law, a breach of contract is a non-performance of a duty undertaken by the party to a contract. Similarly, a tort is a breach of duty recognized under the law of torts.

What is Volenti Non-Fit Injuria?

When the plaintiff brings an action against the defendant for a particular tort, providing the existence of all the essentials of that tort, the defendant would be liable for the same, The defendant may, however, even in such a case, avoid his liability by taking the plea of some defence, There are some specific defences, which are peculiar to some particular wrongs, the volenti non fit injuria example is in an action for several wrongs. For example, the general defence of consent may be taken, whether the action is for trespass, defamation, false imprisonment or some other wrong.

The literal meaning of the ‘Volenti non fit injuria’ means, “ to a willing person no injury is done”, When a person consents to the infliction of some harm upon himself, he has no remedy for that tort. In case, the plaintiff voluntarily agrees to suffer some harm, he is not allowed to complain about that and his consent serves as a good defence against him. No man enforces a right which he has voluntarily waived or abandoned. Consent to suffer the harm may be expressed or implied.

When you invite somebody to your house, you cannot sue him for trespass, nor can you sue the surgeon after submitting to a surgical operation because you have expressly consented to these acts. Similarly, no action for defamation can be brought by a person who agrees to the publication of a matter defamatory of himself.

Many a time, the consent may be implied or inferred from the conduct of the parties. For example, a player in the games of cricket or football is deemed to be agreeing to any hurt which may be likely in the normal course of the game.

For the defence of consent to be available, the act causing the harm must not go beyond the limit of what has been consented. A player in a game of hockey has no right of action if he is hit while the game is played. But if there is deliberate injury caused by another player, the defence of volenti cannot be pleaded. Similarly, if a surgeon negligently operates, he cannot avoid the liability by pleading the defence of consent.

In the case of Padmavati v, Dugganaika

In this case, while the driver was taking the jeep to fill the petrol in the tank, two strangers took a lift in the jeep. Suddenly one of the bots fixed the right front wheel to the axle way toppling the jeep. The two strangers were thrown out and sustained injuries, and one of them died as a consequence of the same.

It was held in this case that neither the driver nor his master could be made liable, firstly, because it was a case of a sheer accident and, secondly, the strangers had voluntarily got into the jeep and such, the principle of volenti non fit injuria applied to this case.

Essential conditions for Volenti Non Fit Injuria

Volenti non fit injuria means when a person consents to the infliction of harm upon himself, he has no remedy for that in tort. Here are the essential conditions for the remedy of volenti no fit injuria.

1.The consent of the person must be free

For the defence to be available, it is necessary to show that the plaintiff’s consent to the act done by the defendant was free. If the consent of the plaintiff has been obtained by fraud or under compulsion or some mistaken impression, such consent does not serve as a good defence. Moreover, the act done by the defendant must be the same for which the consent is given. Thus, if you invite some person to your house, you cannot sue him for trespass when he enters your premises. But, if the visitor goes to a place for which no consent is given, he will be liable for trespass. Similarly, a postman has the implied consent of the resident of a building to go up to a particular place to deliver a dak, For the entry up to that particular point, he cannot be made liable. If the postman goes beyond that limit and enters the rooms of the house he would be liable for the trespass.

In the case of Lakshmi Rajan v. Malar Hospital Ltd.

In this case, the complainant, a married woman, aged 40 years, noticed the development of a painful lump in her breast. The lump did not affect her uterus, but during surgery, her uterus was removed without any justification.

It was held in this case that the opposite party, i.e. the hospital was liable for deficiency in service. It was held that the patient’s consent for the operation did not imply her consent to the removal of the uterus.

2. Consent shouldn’t be obtained by fraud.

Consent obtained by fraud is not real and that does not serve as a good defence. In the Irish case of Hegarty v. Shine, it has, however, been heard that mere concealment of facts may be such a fraud as to vitiate consent. There, the plaintiff’s paramour had infected her with venereal disease and she, therefore, brought an action for assault. The action failed partly on the ground that mere non-disclosure of the disease by the plaintiff was not such a fraud as to vitiate consent, and partly on the ground ex turpi causa non oritur actio. In some criminal cases, it has been held that mere submission to an intercourse does not imply consent, if the submission had been procured by fraud which induced a mistake in the mind of the victim as to the real nature of the act done.

3. Consent obtained under compulsion

Consent given under circumstances when the person does not have freedom of choice is not the proper consent. A person may be compelled by some situation to knowingly undertake some risky work which, if he had a free choice, he would not have undertaken. That situation generally arises in a master-servant relationship. The servant may sometimes be faced with the situation of either accepting the risky work or losing the job. If he agrees to the first alternative, it does not necessarily imply that he has agreed to suffer the consequences of the risky job which he has undertaken. Thus, “ a man cannot be said to be truly willing unless he is in a position to choose freely, and freedom of choice predicates, not only full knowledge of the circumstances in which the exercise of choice is conditional, so that he may b able to choose wisely, but the absence of any feeling of constraint so that nothing shall interfere with the freedom of his will. Thus, there is no volenti non fit injuria, when a servant is compelled to do some work despite his protests.

4. More knowledge does not imply assent

For the maxim Volenti non-fit injuria to apply, two points have to be proved:

1. The plaintiff knew that the risk was there

2. He, knowing the same, agreed to suffer the harm

If only the first of these points is present, i.e. there is only the knowledge of the risk, it is no defence because the maxim is volenti non fit injuria. Merely, because the plaintiff knows of the harm does not imply that he assents to suffer it.

In the case of Smith v. Baker

In this case, the plaintiff was a workman employed by the defendants to work a drill to cut a rock. With the help of a crane, stones were conveyed from one side to the other, and each time when the stones were conveyed, the crane passed over the plaintiff’s head. While he was busy with his work, a stone fell from the crane and injured him. The employers were negligent in not warning him at the moment of a recurring danger, although the plaintiff had been generally aware of the risk.

It was held in this case by the House of Lords that as there was mere knowledge of risk without the assumption of it, the maxim Volenti non-fit injuria did not apply, and the defendants were liable.

5. Negligence of the defendant

For the defence to be available, it is further necessary that the act done must be the same to which the consent has been given. Thus, if while playing hockey, I am injured while the game is being lawfully played, I can’t claim anything from any other player because I am deemed to have consented to the incidents of the game I have gone to play. In case, another player negligently or deliberately hits me with a stick, I can make him liable and he can’t plead volenti non-fit injuria because I never consented to an injury being caused in that manner. When the plaintiff consents to take some risk, the presumption is that the defendant will not be negligent.

Limitations on the scope of Volenti Non-Fit Injuria

Volenti non-fit injuria is a fundamental remedy under the law of torts that applies to situations where a person exposes himself to danger willingly. If a person willingly involves himself in acts that can lead to injury in this case he cannot claim for the remedy of Volenti non fit injuria. Here, are the limitations on the scope of volenti non-fit injuria:

1. Rescue Cases

Rsecsue cases from an exception to the applications of the doctrine of Volenti non-fit injuria. When the plaintiff voluntarily encounters a risk to rescue somebody from an imminent danger created by the defendant's wrongful act, he cannot be met with the defence of volenti non-fit injuria.

In the case of Hyanes v. Harwood

In this case, an important authority on the point. In that case, the defendant's servant left a two-horse van unattended in the street. A boy threw a stone at the horses and they bolted, causing grave danger to women and children on the road. A police station, on seeing the same, managed to stop the horses, but in doing so, he suffered serious personal injuries. It is a rescue case the defence of volenti non fit injuria was not accepted and the defendants were held liable.

When the defendant by his negligence has created a danger to the safety of A and he can foresee that somebody else, say B, is likely to rescue A from that danger, the defendant is liable to both A and B. Each one of them can bring an action independently of the other. The right of the rescuer is not affected by the defences which the defendant may be able to plead against the victim. The right of the rescuer is independent and is not derived from that of the victim. The victim may have been guilty of contributory negligence or his right may be excluded by contractual stipulation– but still, the rescuer can sue. So, also the victim may be a trespasser and excluded on that ground, but still the rescuer can sue.

The same principle will apply when somebody by his negligence puts himself in danger rather than any third person.

2. Illegal Acts

The doctrine of volenti non fit injuria is a remedy under the law torts, which acts as a defence for a person who knowingly involves himself in any risky act and cannot claim the remedy or defence of volenti non fit injuria.

Under the doctrine of volenti non fit injuria exception is when a person commits an illegal act. According to this exception, the harm suffered by a person is the result of any illegal act done by him in such a case the defendant is still liable for the damage sustained by the plaintiff whether or not the plaintiff voluntarily does it.

Illustration - A commits the act of trespassing onto B’s property and gets injured by the hazard present on B's property. In this circumstance, A after even having the knowledge or voluntarily assumed the risk by entering into B; 's property. In this case, B, the defendant will still be liable for any injuries sustained by A as it was B, the defendant failed to ensure the property’s safety from the hazard.

3. Due to the negligence of the defendant

Negligence of the defendant is one of the exceptions to the doctrine of Volenti non fit injuria. Under this exception, the harm suffered by the plaintiff is due to the defendant's negligence. When due to the defendant's negligence, the plaintiff sustains loss or suffers injury. In such a case the defendant has to pay damages to the plaintiff.

In the case of Slater v. Clay Cross Co. Ltd - In this case, the plaintiff was struck and injured by a train driver by the defendant’s servant while she was walking along a narrow tunnel on a railway track which was owned by the members of the public and had instructed its drivers to whistle and slow down when entering the tunnel. The accident occurred because the driver did not observe those instructions.

In this case, the defendant was held liable.

Difference between Volenti Non-Fit Injuria and contributory negligence

1. Volenti non fit injuria is a complete defence. Since the passing of the Law Reform (Contributory Negligence Act, 1945), the defendant's liability. Whereas in the case of contributory negligence, is based on the proportion of his fault in Matter. In such a case, therefore, the damages which the plaintiff can claim will be reduced to the extent that claims he was to blame for the loss.

2. In the defence of contributory negligence, both the plaintiff and the defendant are negligent. On the other hand, in volenti non fit injuria, the plaintiff may be volens but at the same time exercising due care for his safety. Moreover, the defendant’s negligence may rule out the application of the defence of volenti non fit injuria.

3. In the case of volenti non fit injuria, the plaintiff is always aware of the nature and extent of the danger which he encounters. Whereas, the contributory negligence on the part of the plaintiff in respect of a danger which he did not know although he ought to have known about it.

Landmark case on the doctrine of volenti non fit injuria

Morris v. Murray & Anor

In this case, the defendant appealed on an order by Judge Rice, where he awarded the plaintiff a sum of 130.000 for damages of injuries sustained due to a plane crash which was piloted by the late Mr H.H. Murray.

Facts of the case

• The plaintiff boarded a flight which was flown by Mr. Murray, the defendant and had consumed alcohol.

• The plane crashed and the plaintiff faced personal injuries

• The plaintiff sued Mr. Murray for damages

• On this, the defendant argues that the plaintiff was aware of the risk

• The judge rejected the doctrine of volenti non-fit injuria and held that the contributory negligence of the defendants was 20%

• The defendant appealed the judge's order.

Issues

• Is the doctrine of volenti non-fit injuria available for defence in cases of negligence?

• Is the appropriate procedure for dealing with matters of contributory negligence?

Ruling

The court held that the plaintiff’s claim for damages had failed as the plaintiff accepted the risk and the court discharged Mr Murray from liability. Moreover, the court rejected the volenti defence and contributory negligence was taken into account amounting to 50%. Further, the court concluded that the irresponsibility of the venture is such, that the law should not intervene in the awarding of damages.

Conclusion

Volenti non-fit injuria is one of the fundamental remedies under the law of tort. In which the person who has sustained injury or damages voluntarily after knowing about the consequences of the act can ask for recovery of the damages. This defence provided under the Volenti non-fit injuria is subject to limitations such as rescue, illegal act, and negligence of the defendant. Thus, while applying for this remedy the limitations under the volenti non-fit injuria should be taken into consideration.