Volenti Non Fit Injuria – Everything you need to know!!

VOLENTI NON FIT INJURIA

INTRODUCTION 

Volenti Non Fit Injuria, a legal maxim that means, ‘where the sufferer is  willing no injury is done’. It is a doctrine according to which a person who  voluntarily gives consent for any harm to suffer would not be liable to claim  any damages. The harm suffered is not a matter of the cause of action as it  was consensual. The plaintiff cannot impose a right that he willingly  abandoned. If a person lands up in a dangerous situation knowingly, the  provision of suing for injuries is not justified. 

It comes under the ambit of justification of torts and is one of the most  significant defences used against the petitioner in the relevant cases. 

Throughout history, various developments and judgements have given us a  proper definition of the maxim and the appropriate jurisdiction of the  same. The explanation and analysis of which is given henceforth. 

SIGNIFICANCE OF VOLENTI NON FIT INJURIA

The main aim of tort law is to provide a system that holds  people accountable for the damages they cause while  discouraging others from doing the same. While this is very  essential in itself, what a lot of people undervalue in today’s day  and age when people get wrongfully convicted more than ever,  is the significance of legal defences, especially Torts related  defences.

This is so because Torts Law is an uncodified  subject, which gives rise to more scope for interpretation,  which thereby increases the chances of wrongful convictions.  Thus, it can be concluded that not only are Torts defences  important, they are very much necessary for a free and fair trial.  Tort defences are important to guarantee that the accused only  receives as much punishment as is deserved.

This is exactly where this topic comes in, which is the Latin  maxim Volenti non fit injuria. Not only is it one of the most  relevant Torts defences, it is especially important in today’s  modern era because it focuses on something very important  that other defences do not focus on – consent. Consent in itself  is a topic that has been highly debated upon for centuries and it  being one of the essentials for this maxim makes it the perfect  topic for us to discuss.

This is so because discussing the  intricacies of Volenti non fit injuria helps us understand not just  this maxim, but the concept of consent and the entirety of  Torts Law in itself and so much more as it is discussed further  on.

OVERVIEW OF THE DOCTRINE OF VOLENTI NON FIT INJURIA

 

 

History of Volenti Non Fit Injuria 

• Volenti Non Fit Injuria is a maxim of Latin origin in the context of language. 
• The emergence of the doctrine is not very recent and still remains unclear. 
• It was established by a Roman jurist named, ‘Ulpian’. 
• The basic construct of this doctrine can be found in English Common Law System, the Scottish Law, the law in The United States and in Canada. 
  

EXPLANATION

As explained in the introduction, the maxim means ‘where the  sufferer is willing no injury is done’.  

Every person has a de facto duty of evaluating the potential risks  or dangers involved in a task before performing it. Upon the failure  to do so, the accountability should rely on the same person in case  of any harm caused. The victim has no reasonable ground to claim  damages if the injury was suffered even after being fully aware of  the consequences. For instance, if an author agrees to publish a  certain piece of literature he had prior knowledge of, he cannot  sue the publisher for defamation.  

There are various conditions necessary to be fulfilled by the  sufferer so as to enable the respondent to exercise this defense.  Certain limitations have also been established throughout  judgements and jurisdictions making the principle more objective.  

Examples of Volenti Non Fit Injuria

Numerous instances where this doctrine can be applied: – 

• If a cricket player gets injured while playing, he can’t  have any claim against the officials. As he, himself has  agreed to suffer the injury and hence, the claim for Volenti Non Fit Injuria can be utilized as successful defence.

• If X went to see F1 racing at a stadium. While watching  the game he is hit by the car then X doesn’t have any claim against stadium authorities. As the authorities have the defence of this maxim.

• In a boxing club, the boxers give their consent to the  authority if any injury or harm occurs then they do not have any rights to file a suit against the authorities.

KEY PRINCIPLES OF THE DOCTRINE OF Volenti Non Fit Injuria

• The consent must  be free 
• Consent should  not be obtained by  fraud 
• Mere knowledge  does not imply  assent 
  

1. The consent must be free  

   • The consent must be free The prime factor essential for the application of volenti non fit injuria in appropriate cases is the  plaintiff’s consent to the risk. The consent should be free and implied, and not obtained by coercion,  undue influence or misrepresentation. The petitioner should be completely aware of the potential  risks before performing the act. 
   • As stated in the examples mentioned before, if a person agrees to go in a boxing ring and returns with  an injury, the authorities cannot be sued in accordance to the principle. This happens as only free  consent was involved.  
   • As we also observed in the case of Hall v. Brookland (1932) All E.R. Rep 208, the petitioner got injured  due to a racing car. Although, the organisation committee was not held liable as he consented to the  risk by attending the same racing event. 

2. Consent should not be obtained  by fraud 

   • In cases where consent has been obtained by fraud, this defense is outrightly denied. The defendant  shall be held liable for the tort committed and will pay the damages to the defendant.  
   • Consent obtained by fraud is considered to be void ab initio.  
   • The case that we can refer in this regard is named R v. Williams (193) 1 KB 340, where a man who was  teaching the skill of singing to a minor convinced her that a sexual intercourse will help improve her  voice. Later, he was held liable for his actions as the consent was obtained by a fraudulent act.

3. Mere knowledge does not imply assent 

   • Volenti Non Fit Injuria is only applicable when both the conditions, a) prior knowledge of the risk, and  b) agreeing to the risk voluntarily, are fulfilled. As the title explains itself, mere knowledge does not  imply assent.  
   • In the case of Smith vs. Baker, the employee suffered injuries due to a stone that fell on him during  working hours. He sued the defendant for damages. The counsel pleaded the maxim as the employee  was aware of the potential risks of the workplace. But, the defense was rejected as only knowledge of  the risk was present and not the presumption or consent to it.

Difference between Volenti Non Fit Injuria and contributory negligence

 

Sr.no	Volenti Non Fit  Injuria	Contributory Negligence
1	It is a complete and sufficient defense.	It is a partial defense.
2	Only one party is at fault.	Both the parties are at fault.
3	According to the defense of volenti non fit injuria,  only the plaintiff is accountable so no damages  are provided. The defendant is not held liable.	According to the defense of contributory  negligence, the plaintiff is also accountable for  the injury along with the defendant, so the  damages is reduced in proportion for the  petitioner that is to be provided by the defendant.
4	The plaintiff must have the knowledge about the risk.	The plaintiff might not have complete knowledge about the risk.

LIMITATIONS OR EXCEPTIONS TO VOLENTI NON FIT INJURIA

• NO CONSENT 
• INVALID AGAINST  AN ACTION BASED  ON A BREACH OF  STATUTORY DUTY 
• Unlawful act
• DOESN’T APPLY TO  THE CASES OF NEGLIGENCE of the  defendant 
• INVALID IN RESCUE  CASES 
  

1. NO CONSENT 

   • There have been multiple cases where consent was forced or not present while performing an  injurious task. The maxim failed to be used as a defense then. 
   • In the case of Bowater v. Rowley Regis Corporation, the plaintiff employed under the Municipal  Corporation for sweeping was ordered to drive an uncontrollable horse. The plaintiff denied but  ultimately drove the horse due to orders. The horse dashed causing injury to the driver. The  defendant was held liable as there was no free consent present for the act.

2. INVALID AGAINST AN ACTION BASED  ON A BREACH OF STATUTORY DUTY 

   • The defense holds no ground against ab action based on a breach of statutory duty. If an employee  makes a claim against his employer for an injury resulting through a breach by the employer itself,  the claim will not be answered.  
   • But if the injury arises due to a breach of statutory duty on the part of the employee who deliberately  accepted the risk, the defense is applicable in the favour of the defendant. 

3. UNLAWFUL ACT 

   • One of the prime limitations of the maxim Volenti Non Fit Injuria arises when the act committed is  unlawful or illegal. Even if consent and prior knowledge of the risk is present, and every other  essential is fulfilled, the defense can’t be claimed. Liability and damages will arise for the defendant  to pay. 
   • For an instance, in a shooting practising session, a person ends up shooting the other person. He  cannot claim the defense by stating the fact that he had consent of the other party to do so. The  defendant will be held liable as the act was illegal at the first place. 

4. Doesn’t apply to the cases of  negligence of the defendant 

   • The defense is absolutely not applicable in the cases where the injury was caused by the negligence  of the defendant. If the plaintiff consents to a particular risk, is it supposed initially that the  defendant took reasonable care.  
   • In the case of Slater v. Clay Cross Co. Ltd., a lady was hit by a negligent train driver in a tunnel. The  driver failed to blow the whistle which eventually led to the lady getting harmed. Although the  plaintiff was consenting to the risk of walking in a tunnel, negligence occurred on the defendant’s  part leading to the latter being liable for the damages.

5. INVALID IN RESCUE CASES 

   • The maxim also holds no validity in the cases and incidents of rescue. If the plaintiff deliberately  takes a risk or consents himself to a danger in order to protect another person’s safety, which might  have been caused by a different party’s negligence, he has a right to remedy. 
   • In the landmark case of Haynes v. Harwood, a two-horse van was left neglected on a street. When a  boy threw a stone, they bolted. A police constable ran to stop the horses and ended up injuring  himself.  
   • As it was a rescue case, Volenti Non Fit Injuria failed to apply and the respondents were liable to pay  the damages. 

APPLICATIONS OF VOLENTI NON FIT INJURIA

Volenti non fit injuria in employment  relationships 

• Bowater v Rowley Regis Corporation

In the above case, the plaintiff was an employee of a municipal corporation. He was ordered to take an  unruly horse which had misbehaved twice by his employer. He denied the same and protested against  it, but had to do it under the pressure of an order. 

Eventually the horse ran away and the employee who was thrown from the cart was severely injured. He sued the municipal corporation for not providing an appropriate horse for the task allotted to him. 

In the end, the verdict was in the favour of the plaintiff as the negligence was depicted from the side of  the defendants, there was no contributory negligence from the petitioner, and it didn’t satisfy the  conditions of Volenti Non Fit Injuria due to absence of free consent.

• Imperial Chemical Industries v Shatwell

In this case, two brothers suffered grave injuries at their employer’s quarries. This happened due  to disobedience of the mandatory guidelines provided. Testing of a circuit was done with  incapable wiring resulting in the brothers sustaining wounds. 

They sued their employer for damages but the court dismissed the plea on the grounds of Volenti  Non Fit Injuria as the brothers acted with deliberate negligence and violated the employer’s  regulations.  

The employer was not held vicariously liable.

Volenti non fit injuria in case of rescuers

• Baker v TE Hopkins & Son Ltd

Hopkins, an employer hired two employees Mr. Ward and Mr Wileman to clean a well. The well passed  the candle light test which was used to examine the fumes. After the examination, a motor was  installed in the well that ran for more than 11 hours. 

Hopkins did warn both men to not go down the well as fumes have been created. He explicitly told  them to wait until his arrival. They breached his order, went down the well and suffocated due to the  fumes. Dr. Baker arrived and too went into the well. All three died due to poisoning. 

The defendant was held liable under volenti non injuria as the plaintiff’s actions did not come under  free consent.  

This was an important case under the ambit of rescuers.

• Ogwo v Taylor

The defendant caused a fire in his house while attempting to burn off the paint from  underneath the eaves of the house. When the fire brigade was called, one of the firemen was  severely injured due to excessive heating in the roof space. The heat even penetrated his  protective apparatus. 

The defense of volenti non fit injuria had no credibility in this case as the duty of care was owed  to a fireman. 

Volenti non fit injuria in case of Suicides 

• Kirkham v Chief Constable of the Greater Manchester Police

The petitioner was alcoholic and dealt with depression. After failing two attempts at suicide, he  returned home after getting discharged. He constantly caused domestic violence. 

Due to the same reason, he was kept in a prison. The prison authorities were unaware of his  condition. He eventually committed suicide. 

His wife sued the defendants for the failure of communication. Her claim was successful. The defence of volenti non fit injuria was found not applicable in the case of an unsound mind.

Volenti non fit injuria in context of sporting  events 

If a participant takes part in a sporting event, he/she de facto consents to the potential injuries.

• Condon v Basi 

The petitioner suffered a broken leg while playing a football match for the Whittle Wanderers.  The defendant was found to be reckless and the actions were considered to be out of the rules  and regulations of the game. So the verdict stated that the defendant was in a breach of duty  and the defense of Volenti Non Fit Injuria was not applicable here.  

A player can consent to a risk within the ambit of the game, but not the risk beyond the  standard rules of the game.

Volenti non fit injuria in relation to drunk  drivers

• Dann v. Hamilton

In the above case of Dann v. Hamilton, the plaintiff even after knowing that the driver was drunk chose to  travel in the car instead of any other vehicle. Due to the negligent act of driving by the driver, an accident  occurred which resulted in the death of the driver and the plaintiff suffered severe injuries.

The plaintiff brought an action for the injuries against the representatives of the driver who pleaded the  defence of volenti non fit injuria but the claim was rejected and the plaintiff was entitled to get compensation.

In this case the maxim of volenti non fit injuria was not considered because the driver’s intoxication level was  not that high to make it obvious that taking a lift could be considered as consenting to an obvious danger. 

This decision was criticized for a number of reasons as the court did not consider contributory negligence while deciding the case but the court’s reason for not doing so is that it was not pleaded that is why it was not considered.  

Volenti non fit injuria in case of Occupiers  Liability 

• Titchener v British Railways Board  

The Claimant, a 15 year old girl, was out walking with her boyfriend who was 16. They  took a short cut across a railway line and they were both hit by a train. He was killed and  she was seriously injured. There was a gap in the fence at the place where they crossed  and there was a pathway leading to this gap which suggested that there was repeated  trespass. Also it was accepted that either the Defendant was aware of the gap or would  have been aware upon reasonable inspection.

The Defendant raised the defence of  volenti under s.2(3) of the Occupiers Liability (Scotland) Act 1960. 

The scope of the duty owed to trespassers varies on the circumstances. On the facts of  this case the Defendants did not owe a duty to a 15 year old trespasser who was fully  aware of the risks. Even if the Defendant did owe a duty of care the defence of volenti  under s.2(3) would succeed.

CONCLUSION

• To conclude the theory section with, Volenti Non Fit  Injuria is one of the most relevant defenses in torts. 
• The key essentials required consist of prior knowledge  of the risk and the free consent to perform the act. 
• The limitations of the defense come into play when the  consent is obtained by fraud, when an unlawful act is  committed, when it consists of negligence on the side  of the defendant, or it involves any case of rescue. 
• The applications and ambit of this maxim are various  and they spread vastly through diverse jurisdictions  and legislations. 

LANDMARK CASES ON DOCTRINE OF VOLENTI NON FIT INJURIA

1. Padmavati v. Dugganaika
2. Hall v. Brooklands Auto Racing  Club 
3. Wooldridge v. Sumner 
4. Thomas v. Quartermaine
5. Morris v Murray 
6. Khimji V. Tanga Mombasa  Transport Co. 
7. Teh Hwa Seong V. Chop Lim Chin  Moh & Anor P 

Padmavati v. Dugganaika

• In the above case, the driver gave a lift to two  strangers in a jeep. Eventually, the front-wheel failed  due to which the jeep could not be controlled. Both the  strangers tossed away, one of them instantly dying  and another suffering injuries.  
• The plaintiff was not held liable in this case on the  basis of the principle, ‘master cannot be held liable’ as  it was a sheer case of accident and the strangers had  voluntarily entered into the vehicle. The principle of  Volenti non fit injuria was not applicable here. 

Hall v. Brooklands Auto  Racing Club

• In the case of Hall v. Brooklands Auto Racing Club,  plaintiff was a spectator at a motor car racing event  organised at Brooklands on the track owned by  defendant’s company. There occured a collision  between the two cars during the race, causing an  impact resulting in one of them landing among the  spectators, thereby injuring the plaintiff.  
• It was held that the plaintiff impliedly took the risk of  the injuries and hence the defendant was not liable for  the injuries suffered by the plaintiff. 

Wooldridge v. Sumner

• The plaintiff, in the above case was a photographer at  a horse show and was standing at the boundary of the  arena. One of the horses took a round around the bend  hastily and as a result plaintiff got frightened. He fell  into the course and suffered severe injury.  
• It was held by the court that the defendant was not  liable as it was the plaintiff who impliedly took the risk  of such injuries. 

Thomas v. Quartermaine

• In this case, plaintiff was an employee in the  defendant’s brewery. While trying to detach the lid  from a boiling tank of water, the lid got stuck and he  had to apply an extra pull for removing the lid. The  force produced due to the extra pull tossed him into a  container which contained a burning hot liquid. He  suffered serious injuries due to the same. 
• The defendant was not liable as the danger was visible  and the plaintiff voluntarily did an action which caused  him injuries. 

Morris v Murray  

• The Plaintiff and Defendant had been drinking the  whole day. The Defendant with a pilot licence and light  aircraft, proposed that they go on flight and the  claimant agreed to the same. 
• The Defendant took off but crashed shortly after. He  was killed whereas the plaintiff was seriously injured.  In an action of negligence, the defendant raised the  defence of volenti non fit injuria.  
• The court allowed the defence as the actions of the  claimant in accepting a ride in the aircraft from an  intoxicated pilot was self evident that he voluntarily  accepted the risk of injury and waived his right to  compensation. 

Khimji V. Tanga Mombasa  Transport Co. Ltd

In the above case, the plaintiffs were the personal  representatives of a deceased who met his demise  while travelling in the defendant’s bus. The bus  reached a place where road was flooded and risky to  cross. However, the driver and a few passengers,  including the deceased, insisted that the journey  should be continued. The bus drowned with all the  passengers aboard.

The court held that the plaintiff’s  action against the defendants could not be maintained  because the deceased knew the risk involved and  assumed it voluntarily and the defence of volenti  injuria rightly applied. 

Teh Hwa Seong v. Chop Lim  Chin Moh & Anor p 

• In the above case, the plaintiff was travelling as a  passenger in a lorry which was being driven by the  defendant. The lorry through the course of the journey  met an accident in which the plaintiff suffered several  injuries. In this case, the owner of the lorry claimed  that  
• In this case, the defendants failed to seek the defence  of ‘Volenti Non Fit Injuria’ as the court doubt the  plaintiff was informed about the above mentioned  condition. If the defendant had provided the Plaintiff  with prior and sufficient notice about the risk, then  the defence would have been successful.

RECENT CASE LAWS ON VOLENTI NON FIT INJURIA

1. Ravindra Padmanabhan (Dr.) v  Lakshmi Rajan And Anr. (2007) 
2. Sharlet Augustine And Ors. vs  K.K. Raveendran And Ors. (1992) 
3. Woods v Multi Sport Holdings  Pvt Ltd (1996) 
4. Cafest v. Tombleson (2004)
5. Urmila Devi v Mcd & Ors. (2016) 
6. Gopalpur Victims Association  Vs. Delhi Jal Board and Ors.  (2011) 
7. Ekta kapoor v State of M.P.  (2020) 

Ravindra Padmanabhan (Dr.) v  Lakshmi Rajan And Anr. (2007) 

• In the above case, the plaintiff visited a hospital in  order to get a tumour from her breasts removed.  The doctor however removed her uterus as well  while operating, without any utility.  
• The court gave a verdict in the favour of the  plaintiff as no consent was present. 
• The defence of Volenti Non Fit Injuria was rejected.

Sharlet Augustine And Ors. vs  K.K. Raveendran And Ors. (1992) 

• The plaintiff was a passenger in a bus and upon reaching  ‘Karingalikkadu’, the bus dashed against an electric post as  a result of which the live wire came into contact. When the  plaintiff tried to execute a rescue operation for the fellow  passengers to get out of the bus and he got severely  electrocuted while performing it. The accident was an  outcome of the rash and negligent driving of the driver. 
• The court held that the defence of ‘Volenti Non Fit Injuria’  could not be claimed here even if the act of plaintiff was  voluntary while carrying an rescue operations because the  negligent act of driving resulted in this accident and danger  invites rescue. In such a case the Plaintiff is entitled to get  a compensation. 

Woods v Multi Sport Holdings  Pvt Ltd (1996) 

• In the above case, the plaintiff was hit by a cricket  ball in an indoor match at the defendant’s facility  and suffered serious injury to an eye as a result of  which he lost his vision. 
• It was held by the court that the defendant’s failure  to provide the plaintiff with a helmet or warning  about the risks involved constituted a breach of its  duty of care towards the plaintiff and hence the  duty of care was breached.

Cafest v. Tombleson (2004) 

• In the above case, while roller skating the  plaintiff injured her wrist and claimed damages  on the basis that the defendant did not provide  her wrist guards and a warning for risks  involved.  
• In this case, the court held that the defence was  successful and hence defendant was not held  liable, as the court declared that the plaintiff  had accepted all the known risk linked with the  game.

Urmila Devi v Mcd & Ors. (2016) 

• In the above case, a bunch of petitions were filed against  the Municipal Corporation Delhi when numerous deaths  took place due to drowning of the victims in a dirty  sewer. It resulted due to adjacent slippery grounds. A  man while rescuing a kid drowned in sewer and  succumbed to death. The wife of whom claimed  damages from the respondent. 
• The defendant was held liable in the decision held by the  court as it was its duty to ensure maintenance of the  sewer and the land around it. The maxim of Volenti Non  Fit Injuria doesn’t apply as it was a case of rescue even  when the plaintiff was aware of the risks and gave  consent for the injury. 
• The injury occured due to the respondent’s negligence.

Gopalpur Victims Association Vs.  Delhi Jal Board and Ors. (2011) 

• In the above mentioned case, four children  drowned in a pit while playing in an open and  vacant land. Although the application of Volenti  Non Fit Injuria had a scope of application, it was  still rejected as it was an obvious case of  negligence on the behalf of the respondents. No  warning signs or prohibition alerts were placed  near the pit. 
• Delhi Jal Board was under an obligation to  ensure that nobody enters the pit, the failure of  the same resulted in the party being liable for  damages. 

Ekta kapoor v STATE OF M.P.  (2020) 

• In the above case, the petition was dismissed  under the same defense. The issue was  regarding the content of a web series on the OTT  platform Alt Balaji, where a certain amount of  inappropriate and obscene acts were depicted. 
• After hearing arguments from both the  counsels, the decision was held in the favour of  the platform as the purchase of the subscription  itself by the viewer consents to the  consumption of such kind of content. 

LITERATURE  REVIEW

1. The given maxim is based on the principle of justice and good  conscience. It is so because one simply cannot complain of harm to  which they have consented to with their full knowledge and free will.  (Singh, 1975). 
2. It is to be noted that the origins of the maxim go back to the old  civil law, wherein the maxim meant a defence arising from a specific  assent by the party injured to a particular act, which, if done without  such assent, would be a legal wrong (Warren, 1895). 
3. In fact, this maxim is so old that there is evidence that it might  have existed during the times of the great Greek philosopher Aristotle  too (Child, 1905). 
4. A major reason why the team decided to choose this topic over  others was because despite its incredible history, volenti non fit  injuria continues to be one of the most highly debated topics in Tort  Law. One incident to highlight this was when Lord Reid very famously  said, “the defence of volenti non fit injuria has had a chequered  history” (Atiyah, 1965).
5. A reason why it has been so highly debated is because practical  application of the application of the maxim has not been without difficulty  and considerable confusion. Historically, the Romans had allegedly accepted  its implications though, which was very significant back then (Price, 1952). 
6. However, continuing the theme of highly debated topics, it is also  argued that the Romans had merely accepted it as a legit principle and not a  legal rule (Parmanand, 1985). 
7. Over the years, the given maxim has created a lot of confusion  because of how vague it might sound and as (Paton, 1940) rightfully said,  “unless the courts adopt a more studied approach to the defence of volenti,  the law runs the risk of falling into confusion.” Thus, we will be looking at the  details of this maxim now. 
8. This defence absolves the tortfeasor from any liability, if it is proved  that the tort arose out of an informed and wilful act of the injured party. So,  consent of the aggrieved party forms the essence of this defence. This  essentially requires knowledge of the risk, consent and the illegal act itself  (Menon, 2019).
9. Accordingly, it can be concluded that consent is a major element in  this maxim. Literature states that it is arguable that a person can be  coerced into giving consent due to economic reasons, yet, that these  ‘economic coercion of circumstances’ would be internal motives to consent,  which would not invalidate the given consent. (Beyleveld et al., 2007). 
10. As long as the person to whom the consent is given is not responsible for the  deteriorated economic situation, or is refusing to give a reasonable  alternative, the given consent would be legitimate, or so is argued (Jones,  2012). 
11. With such complexities, a statement that somewhat helps is believing  that the degree of vulnerability and the harmfulness of the act correlates  with how much weight must be given to the consent (Bergelson, 2007). 
12. With regard to the discussion on consent, an interesting observation is that  some just cannot see why someone could consent to the intended  exploitation, while others understand the motives of those who do consent.  It is these two sides which makes it almost impossible to come to a  unanimous perception of the scope of consent. This is just the beginning of  how complicated an issue related to consent and our maxim at hand might  be (Rijken, 2015).
13. Something that adds to this complication is the fact that this defence is  also subject to certain limitations such as rescue cases and the negligence of the  defendant in which even if the consent is given by the plaintiff, the defendant is  held liable (Monika, 2019). 
14. Another essential aspect of this maxim is that the mere knowledge of the  impending wrongful act or the existence of a wrongfully caused danger does not  in itself amount to consent even though no attempt is made by the plaintiff on  his/her part to prevent or avoid that particular act of danger (Verma, 2013). 
15. What makes matters worse is its confusion with contributory negligence  but it is important to note their differences, the most important one being that  Volenti Non Fit Injuria is a complete defence, while contributory negligence is a  defence based part of the fault of the defendant (Raje, 2018).  
16. Thus, it can be argued that employing this maxim must be a very confusing  task, but it can do wonders in some limited, specific situations too, which makes  it impossible to ignore it has a viable defence in Torts (Adams, 1994). 
17. While these readings might make it seem like the maxim is not really a  good defence and that it requires a lot more time to develop comprehensively, it  is safe to predict that the immediate future will see little change in the use of the  defence by the courts (Wade, 1961).

CONTEMPORARY DEVELOPMENTS

The maxim of ‘Volenti Non Fit Injuria’ is based upon the  fundamental principles of of good concise and justice  since no man can seek remedy for any harm he/she has  willingly consented to with his free will and full knowledge  about the same.” Volenti non fit injuria” is strictly not a  defence, but a rule of law regarding, a plaintiff’s conduct, it  translates from Latin as “to one who volunteers, no harm is  done”.  

Borrowed from the primitive civil law originally, the maxim  meant a defence arising from a specific assent by the party  injured to a particular act, which, if done without such  assent, would be a legal wrong.  

It is widely believed that the maxim of ‘volenti non fit injuria’  is no longer considered a possible defence in the modern  times, and that case law decisions of the 19th century  made it impossible to be used in today’s world.  

However, in actual fact it has been regularly used, not  always successfully, throughout the 20th century, and  continues to be used today. 

A study of the maxim of ‘volenti non fit injuria’ in  various legal systems across the world and the extent  to which the concept of ‘assumed risk’ is adapted and  recognized in these legal systems. 

• English law  
• Australian law  
• Israeli law  
• German law  
• Swiss law  
• Spanish law  
• Greek law 

With regard to instances of voluntary assumption of risk,  the law of England, Australia and Israel acknowledges that  it applies only as a ground of justification and the  requirement that consent must not be contra bonos  mores is not considered.  

German law recognises instances where a plaintiff  voluntarily assumes the risk of harm but generally applies  it as a defence limiting liability.  

Swiss and Spanish law recognise voluntary assumption of  risk in the form of contributory intent, and depending on  the circumstances, the judge has the discretion to either  exclude or limit liability.  

Greek law does not recognise voluntary assumption of risk  as a ground of justification but recognises it in the form of  contributory intent which may serve to either exclude or  limit liability. In spite of some countries not recognising  contributory intent applying as a complete defence,  

Swiss, Spanish and Greek law do acknowledge  contributory intent and may apply it as a complete  defence.

APPLICATION OF THE MAXIM IN  CURRENT EVENTS: 

• THE PRACTICE OF JALLIKATTU

   

The ancient festival of Jallikattu celebrated widely  in the southern states, especially Tamil nadu  comprises of a dangerous sporting event.  

In this event, a breed of ferocious bulls is released  into a crowd of people and an attempt to either ride  or stop a bull is made. This sport has been  criticised and banned to a massive extent due to  various reasons. 

Does the maxim hold any relevance in this regard? 

If a person gets into a bullfight during Jallikattu and  gets injured, he would not be able to claim  compensation or damages from the authorities or  the owner of the bull. 

The maxim of Volenti Non Fit Injuria fits well in this  case as a defense, the reason being: – 

1. The sufferer had the knowledge of the  forthcoming harm. 
2. The sufferer gave his free consent by  participating in this sport.

• THE PAN INDIA VACCINATION DRIVE

   

As we all might be aware of the largest global vaccination drive taking place in india against the  Covid 19 pandemic kickstarted on 16th January 2021. 

Soon after the vaccination of lakhs of frontline  workers, some showed adverse reactions. The turnout  for vaccine receivers after which declined at  proportionate rate. Even a very few deaths in extreme  situations were reported.  

The government clearly made the vaccine drive  voluntary for people. 

Is the government or the manufacturer liable in case of  any adverse event?

In this case, the answer is not quite simplified.  Both the arguments hold equal weightage. 

Ideally, the system and the manufacturer will  not be held liable under the principle of volenti  non fit injuria. As explicitly stated by the  authorities that the vaccination is completely  voluntary, a person receiving it consents to the  after-effects of the same. Comprising of both  positive and negative 

But provided that the information regarding  Phase 3 trials is missing and the efficacy data is  yet absent from the public domain, it is the duty  of the government to take care of the same. 

Although they cannot be sued, they still owe a  reasonable duty of care towards its citizens.

• 2017 GORAKHPUR HOSPITAL DEATHS

  

The horrific disaster of 2017 BRD Medical College was about the death of 63 babies due to lack of oxygen in Gorakhpur. It was a clear case of medical negligence  by the authorities. 

Although some arguments were made in the support of the authorities by calling it a ‘natural calamity’ or  just a ‘misfortunate failure’. 

In this case, just the admitting of sick babies does not imply consent to accepting all the risks, even if  caused by negligence of the responsible, and hence  the authorities are bound to pay damages which they  have failed to do so. 

REFERENCES 

• TW Price, Volenti Non Fit Injuria, Tydskrif vir Hedendaagse Romeins-Hollandse Reg (1952), https://heinonline.org/HOL/Page?handle=hein.journals/tyromhldre15&div=8&id=&page=&collection=journals
• PS Atiyah, Causation, Contributory Negligence and Volenti Non Fit Injuria, Canadian Bar Review (1965), https://heinonline.org/HOL/Page?handle=hein.journals/canbarev43&id=615&collection=journals&index=
• Terry Lantry, Volenti Non Fit Injuria Case Digests, American Business Law Journal, (1973), https://heinonline.org/HOL/Page?handle=hein.journals/ambuslj11&id=92&collection=journals&index=
• NGL Child, Volenti Non Fit Injuria, Juridical Review (1905), https://heinonline.org/HOL/Page?handle=hein.journals/jure17&id=47&collection=journals&index=
• S. P. Singh, Volenti Non Fit Injuria and Tortious Liability, Journal of the Indian Law Institute (1975), https://www.jstor.org/stable/43952935?seq=1
• Charles Warren, “Volenti Non Fit Injuria” in Actions of Negligence, Harvard Law Review (1895), https://www.jstor.org/stable/1321649
• Page Keeton, Personal Injuries Resulting from Open and Obvious Conditions, University of Pennsylvania Law Review (1952), https://www.jstor.org/stable/3310178
• Glanville L. Williams, Joint Torts and Contributory Negligence, Modern Law Review (1952), https://www.jstor.org/stable/1090466
• GW Paton, Some Problems Relating to Violenti Non Fit Iniuria, Brooklyn Law Review (1939), https://heinonline.org/HOL/Page?handle=hein.journals/brklr9&id=150&collection=journals&index=
• Thomas Beven, “Volenti Non Fit Injuria” in the Light of Recent Labour Legislation, Journal of the Society of Comparative Legislation (1907), https://www.jstor.org/stable/751825
• John W. Wade, The Place of Assumption of Risk in the Law of Negligence, Louisiana Law Review (1961), https://digitalcommons.law.lsu.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=2951&context=lalrev
• Prachi Verma, A Critical Analysis of Volenti Non Fit Injuria, NLU Lucknow (2013), https://www.academia.edu/36502183/Tort_Law_project_on_VOLENTI_NON_FIT_INJURIA_CRITICAL_ANALYSIS
• Maurice Adams, Volunti non fit injuria or contributory negligence? A comparative review of three football-cases, European Review of Private Law (1994), https://kluwerlawonline.com/journalarticle/European+Review+of+Private+Law/2.2/ERPL1994036
• Sakshi Raje, Volenti Non Fit Injuria, Law Times Journal (2018), http://lawtimesjournal.in/volenti-non-fit-injuria/
• Tanvi Menon, What is Volenti Non Fit Injuria, Journal on Contemporary Issues of Law (2019), https://jcil.lsyndicate.com/wp-content/uploads/2019/07/VNFI-Tanvi-M.pdf
• Winfield and Jolowicz, Winfield and Jolowicz on Tort (Sweet & Maxwell 2010) 
• Clerk & Lindsell, Clerk & Lindsell on Torts (Sweet & Maxwell 2017) 
• Salmond and Heuston, Salmond and Heuston on the Law of Torts (Sweet & Maxwell 1981) 
• Tony Weir, A Casebook on Tort (Cambridge University Press 2009) 
• C.R.J.J. Rijken, Volenti Non Fit Injuria, Tilburg University Journal (2015), http://arno.uvt.nl/show.cgi?fid=136494
• Monika, Volenti Non Fit Injuria, iPleaders (Jan. 25, 2021, 9:29 PM), https://blog.ipleaders.in/volenti-non-fit-injuria/
• Rajas Salpekar, Volenti Non Fit Injuria – A Conceptual Analysis, Legal Encyclopaedia (2020), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3675389
• Subham Chatterjee, Volenti non fit Injuria: A Necessary Evil For The Defendant, Law Corner (Jan. 25, 2021, 9:29 PM), https://lawcorner.in/volenti-non-fit-injuria-a-necessary-evil-for-the-defendant/
• The Editors of Law Circa, Volenti Non-Fit Injuria, Law Circa (Jan. 25, 2021, 9:29 PM), http://lawcirca.com/volenti-non-fit-injuria/
• Neha Khanna, Volenti Non-Fit Injuria, Rama University Journal (2020), https://www.ramauniversity.ac.in/online-study-material/law/llb/isemester/lawoftorts/lecture-27.pdf
• Samriddhi Pandey, Volenti non fit injuria – Concept, Meaning and Case Laws, Legal Bites (Jan. 25, 2021, 9:29 PM), https://www.legalbites.in/volenti-non-fit-injuria/
• The Editors of Desi Kanoon, Exceptions To The Principle Of Volenti Non Fit Injuria, Desi Kanoon (Jan. 25, 2021, 9:29 PM), http://desikaanoon.in/exceptions-to-the-principle-of-volenti-non-fit-injuria/
• The Editors of All India Legal Forum, Volenti Non Fit Injuria, All India Legal Forum (Jan. 25, 2021, 9:29 PM), https://allindialegalforum.wordpress.com/2020/10/14/volenti-non-fit-injuria/
• The Editors of Racolb Legal, Applicability of Volenti Non Fit Injuria in Sports, Racolb Legal (Jan. 25, 2021, 9:29 PM), http://racolblegal.com/applicability-of-volenti-non-fit-injuria-in-sports-both-from-players-and-viewers-perspective/
• The Editors of E-LawResources, Volenti non fit injuria, E-LawResources (Jan. 25, 2021, 9:29 PM), http://www.e-lawresources.co.uk/Volenti-non-fit-injuria.php

 

AUTHORS

Anshita Shrivastava , Danish Raina, Varun Goswami 

First year students – BA LLB (hons)

Symbiosis law school, Pune