VOLENTI NON FIT INJURIA
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.
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
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.
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.
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
|Volenti Non Fit Injuria
|It is a complete and sufficient defense.
|It is a partial defense.
|Only one party is at fault.
|Both the parties are at fault.
|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.
|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
- 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.
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.
- 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.
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.
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.
- 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
- Padmavati v. Dugganaika
- Hall v. Brooklands Auto Racing Club
- Wooldridge v. Sumner
- Thomas v. Quartermaine
- Morris v Murray
- Khimji V. Tanga Mombasa Transport Co.
- 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
- Ravindra Padmanabhan (Dr.) v Lakshmi Rajan And Anr. (2007)
- Sharlet Augustine And Ors. vs K.K. Raveendran And Ors. (1992)
- Woods v Multi Sport Holdings Pvt Ltd (1996)
- Cafest v. Tombleson (2004)
- Urmila Devi v Mcd & Ors. (2016)
- Gopalpur Victims Association Vs. Delhi Jal Board and Ors. (2011)
- 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.
- 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).
- 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).
- 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).
- 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).
- 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).
- 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).
- 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.
- 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).
- 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).
- 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).
- 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).
- 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).
- 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).
- 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).
- 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).
- 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).
- 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).
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: –
- The sufferer had the knowledge of the forthcoming harm.
- 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.
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- 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=
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Anshita Shrivastava , Danish Raina, Varun Goswami
First year students – BA LLB (hons)
Symbiosis law school, Pune