Volenti non fit injuria – Defence for tortious liability

Volenti non fit injuria – defence for tortious liability

Introduction 

When the plaintiff brings an action against the defendant for the particular tort, providing that there is the existence of all the essential elements of torts, then in order to avoid the liability of defendant, he can take the plea of some general defenses that are available in torts which may be taken against number of wrongs.

The general defense may be taken for action against trespass, negligence, defamation, false imprisonment, malicious prosecution and many more.

The general defence available in the law of torts are –

1. Volenti non fit injuria
2. Plaintiff the wrong doer
3. Inevitable accident
4. Act Of God
5. Private defense
6. Mistake
7. Necessity
8. Statutory Authority

Volenti non fit injuria – Meaning 

When a person consent to the infliction of some harm upon himself, he has no remedy for that in law of torts. In case, the plaintiff voluntarily agrees to suffer some harm, he is not allowed to complain for the same harm and his consent act as a good defense for defendant against plaintiff. Consent obtained to suffer the harm may be either expressed or implied.

Illustrations of Volenti non fit injuria 

1. A spectator at a cricket match or of a motor race cannot recover for damages or injuries if he is hit by a ball or injured by a car carrying on the track as he voluntary give the consent for the same.
2. If ‘A’ invites ‘N’ in his house then ‘A’ cannot sue ‘N’ for trespass.

Note – This Defense is available only if the acts causing the harm must not go beyond the limit of what has been consented. Example – A player in a game has no right of action if he is hit while the game is lawfully played but If there is a deliberate injury caused by another player, then the defense of Volenti non fit injuria cannot be pleaded.

Constituents of Volenti non fit injuria 

In order to use this defense, it is necessary that it must satisfy the required constituents. They are –

1. Consent of the plaintiff must be freely obtained – Consent should not be obtained under fraud or under compulsion.
2. Mere knowledge of harm does not imply to consent.

Distinguished between Volenti non fit injuria and Contributory Negligence 

1. Volenti non fit injuria is a complete defense, whereas, contributory negligence is based on the proportion of fault (from both sides – both defendant and plaintiff) in the particular matter.
2. In the defense of contributory negligence, both the plaintiff and the defendant are negligent whereas in Volenti non fit injuria, the plaintiff may be volens but at the same time exercising due care for his own safety.
3. In case of Volenti non fit injuria, the plaintiff is always aware of the nature and extent of the danger which he encounters whereas in contributory negligence the plaintiff can be unknown about the fact of danger.

Case studies related to Volenti non fit injuria –

1. Hall v. Brook land Auto racing club

 In this case, the plaintiff was a spectator at a motor car race being held at Brook lands on a track owned by the defendant company. During the race, there was a collision between two cars, one of which was thrown among the spectators, thereby causing injuring the plaintiff. It was held that the plaintiff impliedly took the risk of such injury the danger being inherent in the sport which any spectator could foresee, the defendant was not liable and the defense of Volenti non fit injuria was applicable.

2. Padmavati v. Dugganaika

In this case, while the driver was taking the jeep for filling petrol in the tank, two strangers took lift in the jeep. Suddenly one of the bolts fixing the right front wheel to the axle gave 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 that neither the driver nor his master could be made liable, because it was a case of inevitable accident also the strangers had voluntarily got into the jeep and as such, the principle of Volenti non fit injuria was applicable to this case.

3. Lakshmi Rajan v. Malar Hospital Ltd

In this case, the complainant, a married woman, aged 40 years, noticed development of a painful lump in her breast. The lump had no effect on her uterus, but during surgery, her uterus was removed without any justification. It was held that the hospital, was liable for deficiency in service. Here, the defense of Volenti non fit injuria was not applicable because the act go beyond the limit of what has been consented .

4. Smith v. Baker

In this case, the plaintiff was a workman employed by the defendants on working a drill for the purpose of cutting a rock. By the help of a crane, stones were being conveyed from one side to the other, and each time when the stones were conveyed, the crane passed from over the plaintiff’s head. While he was busy in 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 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. Haynes v. Harwood

In this case, the defendants’ servant left a two-horse van unattended in a street. A boy threw a stone on the horses and as a result the two horses bolted, causing grave danger to women and children on the road. A police constable on seeing the same, tried to stop the horses, but in doing so, he himself suffered serious injuries. Since, it was a ‘rescue case’, the defense of ‘Volenti non fit injuria’ was not accepted and the defendants were held liable for the harm and damages.

Author: Navya Agarwal,
College name - Cpj college of higher studies and school of law and year - 2nd / Student by profession