VOLENTI NON FIT INJURIA – DEFENSE IN TORT
In law of torts if a person does any unlawful act which results into injury to some other person, he/she is held liable and has to pay the damages or find any other remedy as determined by the court to the victim suffered. But in some situations even when a person suffers some damage due to some act of another person, he/she cannot claim damages because of presence of some defenses in law of tort.
A simple translation of the roman legal maxim ‘volenti non fit injuria’ is that the things which are suffered voluntarily are not fit or deemed to be an injury. Also, an injury cannot arise out of a voluntary act and in this the consent of the plaintiff acts as a defense. For e.g. If X has a car whose brakes do not work and Y knowing about the conditions of the car still chooses to sit in it with X driving it and due to the failure of brakes both of them sustained injuries in accident, Y can’t claim for damages from X because this act was done by him voluntarily. But if Y didn’t know about the failure and then he sustained injuries, he is liable to claim damages from X beacause Y did not consented to accept the risk due to failure of car’s brake.
ELEMENTS OF VOLENTI NON FIT INJURIA
For applying the defense of the aforesaid maxim some essentials should have their presence in case and need to be fulfilled only then maxim can be taken to prevent liability. These are as followed:-
- Plaintiff knows about the risk.
- Plaintiff knowing the risk voluntarily agrees to suffer the harm.
But only the knowledge of risk is not enough for applying this defense, it is known as Scienti Non Fit Injuria meaning that having mere knowledge is consent to risk. Thus having knowledge is only half fulfilment of defense’s application.
In Smith v. Baker & sons, the plaintiff was an employee of the defendant and the site where he used to work had a crane which carried rocks over their heads. The plaintiff had also protested about the same to the defendant. The plaintiff was injured because of these rocks falling on him and thus he sued the defendant for damages. It was held that the defendant was liable and had to pay damages to the plaintiff because the plaintiff had consented to the danger of the job but not to the lack of care.
In the situation where the defendant is taking the defense of this maxim, the burden of proof lies on him to show that plaintiff was having full knowledge of act and had consented to risk involved and defendant must show that plaintiff was also aware about the extent of risk in the act for successfully taking this defense.
For instance, A has to undergo an operation for his eye infection and the doctor fails to tell him about the risk of losing his vision due to the operation and due to that A undergoes the operation believing that there is no such risk to his eye. In the operation, if A ends up losing his eyesight, the doctor will be held liable because A did not have the knowledge about the extent of the risk which was involved in the operation and therefore, the defense of volenti non-fit injuria cannot be taken.
- CONSENT OF THE PLAINTIFF
It is very important in defense of volenti non fit injuria that when the plaintiff voluntarily gives his consent to an act only then defendant can take this defense.
In the case of Hall v. Brookland, the plaintiff went to a car race in which two cars crashed with each other and as a result of the crash, the plaintiff who was sitting as an audience was also injured when one of the cars soared into the audience. Here the defense of volenti non fit injuria was applied because the plaintiff had given his consent to such a risk by going to the race.
- CONSENT MAY BE EXPRESSED OR IMPLIED
In the case of taking this defense the defendant’s consent is not only expressly given but can be taken by the conduct also. For instance, C is a cricket player and due to a full toss ball he gets hits by it on his shoulder. Here C cannot claim any damages because C has consented to the risk by agreeing to play cricket.
- CONSENT OF THE PLAINTIFF MUST BE FREE
The consent given by the plaintiff for an act must be free from coercion, fraud or by other means which would affect the consent.
In the case of Ravindra Padmanabhan (Dr.) vs Lakshmi Rajan And Anr., the plaintiff had a tumor on her breasts and therefore she went to the hospital to have it removed. While in the operation, the doctor removed the uterus as well even though it had nothing to do with the tumor. Thus, the Court found the defendants to be liable and thus, the defense of volenti non fit injuria was rejected.
Defendant can be held liable and can’t take help of this defense if the consent is taken by fraud.
LIMITATIONS OF VOLENTI NON FIT INJURIA
Following are some limitations under which this defense cannot be taken by defendant even if all essentials of the maxim are fully met:-
- Consent must be voluntary and free
- Knowledge does not necessarily imply assent or consent
- Consent must not be to illegal acts
- Negligence is an exception to the defense
- Rescue cases are an exception to the defense
CASES TO EXCEPTION OF THE DEFENSE:
- In the case of Haynes v. Harwood, the servant of the defendant brought two horses in the town near a police station and left them to do some other work. The horses were upset by the children and they broke free, seeing them in rage the plaintiff who was a police officer went to stop the horses and in doing so he got injured and brought a case against the owner for damages. The court held the defendant liable because the defense of volenti non-fit injuria did not apply in a rescue case.
- In the case of Slater v. Clay Cros Co. Ltd., the plaintiff was hit by a train in the tunnel of the defendant railway company. The company had given instructions to the drivers of its trains that they had to blow the whistle at the entry of the tunnel and they should also slow the speed of the train but the driver failed to follow these instructions and negligently drove it inside the tunnel, as a result, the plaintiff was injured. The defendant had taken the defense of volenti non fit injuria but the Court held that this defense could would not be applied because even though the plaintiff took the risk of walking inside the tunnel, this risk was heightened by the negligence of the driver.
- In the case of R v. Williams, the defendant was a singing coach and he had convinced a 16-year-old student to have sexual intercourse with him by telling her that it will help her in improving her voice and singing. The defendant was liable because the consent was obtained by fraud.
Hence, the defense of volenti non fit injuria is an important defense in the law of torts as it has a wide field of application but the defense must only be applied by sound logic.
Intern at Law Portal
College: Vivekananda Institute of Professional Studies, GGSIPU
 (1891) AC 325
 (1932) All E.R. Rep 208
 (1935), 1 KB 146
 (1956)2 QB 264
 (193) 1 KB 340
Author: Akanksha Yadav,
Vivekananda Institute of Professional Studies, GGSIPU, Law Student