Authored By – Shachi Singh, BBD University, Lucknow
A) INTRODUCTION
“Tort means a civil wrong which is not exclusively a breach of contract or breach of trust”[1]
A person is said to have committed a tort if he violates the rights vested in the people as a member of the society. In case a defendant commits a tort, given all the essentials to set tortious liability, the plaintiff can make him liable for his act which he committed. However, in some cases the defendant can take plea of some defences available to them. There are several defences available to them like “Volenti Non Fit Injuria”, “Plaintiff’s default”, “ Act of God”, etc. which they can take against the action, in order to escape the tortious liability set against them by the plaintiff.
In this article, we will deal with one of the defences which is “Volenti Non Fit Injuria” , it’s meaning, essentials and limitations to its scope, etc.
Keywords: tortious liability, defence, consent, voluntarily, compensation, legal injury
B) Meaning of Volenti Non Fit Injuria
The term “Volenti non fit injuria” is a Latin term which literally translates “to a willing person, there is no harm”. It means that if a person voluntarily gives his consent to the harm, there has been no harm caused to him by anybody but himself as he gave his consent to the possibility of the harm and therefore cannot held any other person liable. The consent could be either expressed consent or implied consent. For instance, If a person decides to take part in any adventurous activity like Bungee Jumping and in that activity he gets hurt, and sue the authority. The authority then can take the plea of this defence which is Volenti non fit injuria which will imply that , as he had given his consent to the possibility of the harm he cannot held the authority liable, thus making the defendant free from the tortious liability. For the defence to be available to the defendant the act causing harm must be under the limit of what has been consented as if it goes beyond it, the liability cannot be escaped using this defence.
- Cases where the defence of Volenti non fit injuria was successfully pleaded :
- In “Hall V. Brooklands Auto Racing Club[2]” , there was an accident happened during the race due to collision between two cars, harming the plaintiff who was an spectator in the race. The plaintiff sued the authority for the harm but the Court held the defendants not liable for the harm as the consent is implied in case of such sports because of the predictions of the possibility of harm or injury during the sport.
- In “Padmavati V. Dugganaika[3]”, The Court held the defendants not liable because of the defence of Volenti non fit injuria available to them. In this case, the two plaintiffs voluntarily took lift from a jeep but one of them died and another got injured because of an accident causing due the toppling of jeep. It was held that the neither the driver nor the master of the jeep could be held liable because firstly, it was a case of accident and secondly, they voluntarily got in to the jeep giving the defence of Volenti non fit injuria to the defendants.
C) Essential Elements
For the availability of the defence of Volenti non fit injuria, there must be certain essential elements to be present . These elements include:
- Knowledge of the risk
- Voluntary acceptance of the risk
- Consent
Knowledge of the risk
The plaintiff must know about the risks involved in the activity and must have a clear understanding of it. If the plaintiff does not know about the risk, the defence could not be taken. Hence in order to imply this defence the plaintiff must have a clear knowledge of the risk. It could be either expressed through instructions, precautionary notice or warnings and implied on the basis of the nature of the activity in which the plaintiff is involved like adventurous activities or sports.
In case of “Bowater V. Rowley Regis Corporation[4]”, the plaintiff was a cart driver who was order to drive a horse by the master. The master and the plaintiff both knew of the horse can bolt , the plaintiff refused to do so. But to follow the order of the master he reluctantly decided to drive it. The horse bolted injuring the plaintiff. The Court held that the plaintiff in this case was entitled to recover the damage because of the performing of the act under pressure of master’s order and not voluntarily. The principle of Volenti non fit injuria did not apply here even though the plaintiff knew of the risk because of the condition under which the act was performed.
Voluntary acceptance of the risk
The plaintiff must voluntarily accept to the risk which can be incurred due to the activity they are engaged in so as to apply the principle of Volenti non fit injuria.
In case of “Smith V. Baker[5] ”, the plaintiff was injured due to the falling of stone from the crane which used to pass over his head every time during its activity of transferring of stones from one side to other . The plaintiff was using a drill to cut the stone which the crane was then transferring. Though there was knowledge of risk, there was no assumption of such an injury to the plaintiff. Hence, the Court held the defendants liable and the principle of Volenti non fit injuria did not apply here.
Free Consent
The defence of Volenti non fit injuria being a defence of consent , the presence of free consent is an essential element. The plaintiff’s consent to the act must be free in order to apply this defence. If the consent is not free and obtained by fraud or compulsion the defence of Volenti non fit injuria is not available to the defendant. It is of utmost necessity that the act performed must be within the scope of the consent or the act must be that which has been consented by the plaintiff. In case of a minor or insane person the consent of the guardian must be taken and is equally applicable as that of the minor or the person with insanity himself.
In case of Lakshmi Rajan V. Malar Hospital Ltd.[6] , the plaintiff consented for the removal of a lump in her breast through operation. But in the operation the uterus was removed without it having any connection with the lump. The Court held the hospital liable as the act done by the surgeon was not consented.
- Consent obtained by fraud
The consent obtained by fraudulent is not free and thus cannot be considered in the application of the defence of Volenti non fit injuria.
In case of R V. Williams [7], a music teacher had physical intercourse with a 16 year old girl stating her that the activity was to improve her voice. The Court held the teacher liable and was accused of rape as the consent taken was through fraud.
- Consent obtained under compulsion
The consent obtained under compulsion is also not considered as free consent and thereto does not imply in the defence of Volenti non fit injuria because the person did not have freedom of choice in these cases and gave his consent forcibly due to some unavoidable circumstances or physical force. Hence the consent taken must be free and not under any compulsion in order to held the defendant not liable for the act.
Exceptions
The application of principle of Volenti non fit injuria has some exceptional cases undef which the principle cannot be applied. These include:
- Rescue Cases
- Unfair Contract Terms Act, 1977 (England)
Rescue Cases
The principle of Volenti non fit injuria has its limitation in the field of rescue cases.
The defence of Volenti non fit injuria is not available to the defendant if it is case where the plaintiff voluntarily decides to save someone from the act which has the tendency to cause harm due to defendant’s act.
In Haynes V. Harwood[8] , a police constable was injured while trying to stop the horses which were left unattended in a street by the defendant and they ran towards the road likely to cause danger to the people. The Court held the defendants liable and the defence of Volenti non fit injuria was not accepted.
Unfair Contract Terms Act, 1977 (England[9])
The negligence by contract terms resulting to liability of the defendant is restricted by the Unfair Contract terms Act, 1977 . Section 2 of the Act put forth provisions regarding these limitations towards the right of person and liability of the defendant.
D) CONCLUSION
Volenti non fit injuria is one of the defence available to the defendant to escape tortious liability emphasizing the voluntary involvement of the plaintiff in the acts having tendencies to cause harm or injury. The most essential element includes the presence of consent , knowledge and voluntary agreement to the act thereto. It is different from contributory negligence which is based on the proportion of the fault of plaintiff. The scope of this principle is limited in circumstances like rescue cases and by the Unfair Contract Terms Act,1977. It is very important to establish the importance of voluntary acceptance and performing of acts having risk via free consent of the plaintiff.
E) REFERENCES
- Books / Commentaries / Journals Referred
- Law of Torts by Dr. R.K. Bangia
- Online Articles / Sources Referred
- Statutes Referred
- The Unfair Contract Terms Act,1977 (England)
[1] The Limitation Act 1963, S. 2(m)
[2] (1932) 1 K B. 205
[3] 1975, A.C J. 222
[4] (1944) K.B. 476
[5] (1891) A.C. 325.
[6] Ill (1998) CPJ 586 (Tamil Nadu SCDRC)
[7] (1923) 1 K.B. 340
[8] (1935) 1 K.B. 146
[9] Unfair Contract Terms Act, 1977 (England)
