Normally, when a person suffers an injury at the expense of someone else’s lack of care or breach of duty, the person who displays such breach of duty is liable to pay damages to the victim. Volenti Non Fit Injuria is a defence that could be used by the defendant to avoid such damages. Volenti Non Fit Injuria is a widely used as a defence in Tort Law. It is often referred to as the defence of consent. The burden of proof lies upon the defendant. The defendant by claiming the defence of Volunti Non Fit Injuria tries to indicate that the plaintiff voluntarily agreed to suffer harm, therefore, later he must not complaint about the same as he consented to it. His consent acts as a strong defence. The consent given could be implied or express and can even be inferred from the conduct of the party.
In law of tort, it is said that no person who has voluntarily waived or abandoned a right can enforce that right later. In Latin, Volenti Non Fit Injuria literally translates to ‘to a willing person, injury is not done’. One cannot invite a guest to their home and later sue them for trespass of their property. Likewise, a sportsperson after signing the contract for a specific season cannot sue the other party for getting injured if the contract explicitly indemnifies the other party of such foreseeable injury or risk. It could be said that the maxim presupposes a tortious act by the defendant. This maxim has wide applicability and we passively witness it in our daily life. Often, people are confused whether this maxim revolves around a legal contract. The answer to this would be no, the application of ‘volenti non fit injuria’ is not restricted to a legal contract, rather the determining factor lies upon the competence of the decision making capacity of the person at the time the consent was given.
Therefore, a minor, who would otherwise possess no legal capacity to consent, would be considered to be capable of making a reasonable assessment of the advantages and disadvantages of a treatment proposed by a physician or a surgeon, and he could give a valid consent.
When the defence of Volenti Non Fit Injuria is available?
For a defendant to plead the defence of ‘volenti non fit injuria’, it is necessary to show that the person (plaintiff) who consented to doing the act gave his consent freely. The consent of the plaintiff would not serve as a good defence if it had been obtained by fraud or under compulsion or under some mistaken impression. Emphasis must also be put on the fact that the act done by the defendant must be the same for which the consent is given.
In order to understand this, we may take the help of a case law. In Lakshmi Rajan v. Malar Hospital Ltd.[i], the complainant was a married woman. She noticed development of a painful lump in her breast. Although, the lump had no effect on her uterus, during the surgery, her uterus was removed without any reason whatsoever. It was held that the hospital, was liable for deficiency in service. The court held that the patient’s consent for the operation did not imply her consent to the removal of the uterus.
When the defence of Volenti Non Fit Injuria is not available?
1. Consent obtained by Fraud
If the consent is obtained by fraud, it would not serve as a good defence. But it is essential to make note of the fact that mere concealment of facts would not amount to fraud as held in the case of Hegarty v. Shine[ii]. In law of crime, it is said that fraud vitiates consent, if it induces mistake as to the real nature of the act done. Hence, in a case where the accused, a music teacher, induced the victim to engage in sexual intercourse with him on the pretext that the said sexual act would improve her vocals, the accused was held to be guilty of rape.
2. Breach of duty or negligence
The defence of volenti non fit injuria would not stand, if the act is due to a breach of statutory duty. Hence, an employer may not seek the defence of ‘volunti non fit injuria’ if he himself caused the injury suffered by the employee due to a statutory breach of duty. Nevertheless, where the negligence or breach of statutory duty is on the part of the employee, who knowingly accepts the risk that follows from such breach and the employer is not guilty of negligence or breach of statutory duty, the defendant may seek the defence of ‘volenti non fit injuria’.
In case of negligence on the part of the defendant, his defence under this maxim would not hold. In Slater v. Clay Cross Co. Ltd[iii], the plaintiff was hit by a train due to negligence on part of the defendant’s servant (driver of the train). The defendant had instructed their drivers to slowdown and blow a whistle while entering the tunnel in order to alert the people walking through the tunnel. Since the driver failed to do so, the plaintiff suffered injuries. The court held the defendant to be liable.
3. Consent Obtained Under Compulsion
In Bowater v. Rowley Regis Corporation[iv], the court held that “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 on which the exercise of choice is conditional, so that he may be able to choose wisely, but the absence of any feeling of constraint so that nothing shall interfere with the freedom of his will.” A person cannot be said to give consent when he is compelled by some circumstances to take up risky work which he would not have done if he had a free choice. For instance, a labourer may undertake a particular task which he otherwise would not have undertaken. In such situations, the labourer takes up such tasks in order to save his job as he fears that the refusal to comply and take up tasks would deem him unfit for the job in the eyes of his employer and his job would be at stake.
4. Knowledge alone does not equate Consent
If the defendant wishes to apply this maxim, he must prove that the plaintiff knew about the risk and that he agreed to suffer the harm or risk. These two form the pre requisites for claiming this defence. They are the key elements for claiming this defence. These two elements go hand in hand and the absence of the second condition would deem the first condition as an inconclusive defence. Therefore, simply proving that the plaintiff had knowledge of the harm would not be sufficient.
Case Laws on Volenti Non Fit Injuria
Smith v. Baker[v]
In this case, the plaintiff was employed as a workman by the defendants for the purpose of cutting a rock. The stones were being moved from one side to another with the help of a crane. The rocks would move above the plaintiff’s head. The plaintiff had once informed the crane driver about the hazards of this activity. One day while working the drill, one of the stones that were being moved, fell on the plaintiff’s head and he suffered injuries. The plaintiff was given no warning whatsoever before transporting the stone.
- Whether or not the plaintiff consented to the risk?
- Whether or not there was any evidence of negligence?
In this case, the plaintiff pleaded the defence of volenti no fit injuria, but this was rejected by the court as mere knowledge of risk on the part of the plaintiff would not suffice in the present case. Lord Halsbury said that the mere knowledge of the risk would not mandatorily implicate consent to the risk. Furthermore, while giving the judgement, Lord Herschell was of the opinion that volenti non fit injuria would not apply to such a case, and that the employer could not invoke it to save himself from the liability of his wrongdoing. He was of the belief that there was certain negligence on the part of the defendant and mere knowledge of risk by the plaintiff would not negate such negligence.
Dann v. Hamilton[vi]
The plaintiff chose to travel by a car in spite of knowing about the driver’s drunken state. The driver was driving negligently which resulted in an accident. The plaintiff then sued the personal representatives of the driver. They pleaded the defence under this maxim.
Whether the defence of volenti non fit injuria be pleaded where the plaintiff voluntarily accepted the risk of travelling with a drunk driver?
The court rejected the argument made under the defence of volenti non fit injuria and held the defendants liable. In the view of the court, this defence was not applicable because the degree of intoxication of the driver was not to such an extent where it could be of grave danger.
Bowater v. Rowley Regis Corporation[vii]
The plaintiff was a cart driver and was asked by the defendant’s foreman to drive a horse. They both knew that the horse could bolt due to past incidents. Hence, the plaintiff protested but then followed the order. As expected, the horse bolted and the plaintiff suffered an injury.
Could the defendants plead the defence of volenti non fit injuria and avoid liability?
The court held that volenti non fit injuria could not be applied as the defendants were negligent. In fact, Goddard L.J made an observation that in case of master-servant relation, this maxim must be applied with caution. Subsequently, the plaintiff was entitled to recover.
Imperial Chemical Industries Ltd v Shatwell[viii]
The two brothers (employees), working for the defendant, tried to test detonators without taking prior permission of the employers. The brothers were also in contravention of statutory provisions and the employer’s orders in this matter. This caused them to sustain injuries. They brough an action against the defendants and the defendants pleaded the defence under volenti non fit injuria.
Whether employers could seek the defence of volenti non fit injuria when the employees expressly disobeyed the instructions and would they be liable?
The court held that an employer can plead the defence of volenti non fit injuria if the employee neglects the instructions and possesses knowledge about the risk and the same was applied in this case
Under the law of tort, there are several defences available and the doctrine of Volenti Non Fit Injuria stands out as an excellent defence. Notwithstanding that, there are certain limitations to the applicability of this defence. Rescue cases being one of them. Therefore, when the plaintiff takes up the risk of saving somebody else, the defendant cannot plead the defence of Volenti Non Fit Injuria. This defence can be availed only when the defendant is actually not guilty of any offence as the consent was communicated by the plaintiff. While construing this maxim, the courts must make sure that the two essential elements i.e., knowledge of the risk along with agreement to suffer such risk are present and have been proved by the defendants. Unless and until the defendants prove the presence of both the essential elements, they must not be given the leeway to escape liability.
- The Law of Torts by R.K. Bangia.
- The Law of Torts by Ratanlal and Dheerajlal.
[i] Lakshmi Rajan v. Malar Hospital Ltd. III (1998) CPJ 586 (Tamil Nadu SCDRC)
[ii] Hegarty v. Shine, (1878) 2 L.R. Ir. 273
[iii] Slater v. Clay Cross Co. Ltd, (1956) 2 All E.R. 625
[iv] Bowater v. Rowley Regis Corporation, (1944) K.B. 476
[v] Smith v. Baker , (1891) A.C. 325.
[vi] Dann v. Hamilton, (1939) 1 K.B 509
[vii] Bowater v. Rowley Regis Corporation, (1944) K.B. 476
[viii] Imperial Chemical Industries Ltd v Shatwell, (1965) AC 656
Also Read – Right of Private Defence in India
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