law of tort

This article is written by Sonam Sanjay Pandey, a student of DY Patil Deemed to be University School of Law, Navi Mumbai. Through this Article the author tends to analyse the details of the maxim “Volenti Non-Fit Injuria” and its application under law of torts. 

Definition 

Volenti Non-Fit Injuria from Nolo’s Plain Law Dictionary is a Latin term for “to a willing person, no injury is done.” This basically means that a person who knowingly and willingly puts himself/herself in danger cannot sue for any injuries resulting from the same.

Applicability 

In a case where a person gives his consent to do an act and it leads him to get himself injured, he cannot claim damages or sort relief from the court. The consent of the plaintiff is the defense which is Volenti Non-Fit Injuria which means no injury is done to a willing person.

Essential Elements of Doctrine

For the use of the defense of Volenti Non-Fit Injuria there are some elements that should be present and only when they are satisfied, this defense can be taken to prevent liability. They are:

  1. The Plaintiff has the knowledge of the risk

The plaintiff should be aware of the possibility of the harm which is likely to be caused by an act but still he accepts to do that act and thereby has agreed to suffer the injury caused by that act. The defendant won’t be liable for any damages because of the said act. But mere knowledge is only a partial defense that is recognised which is “Scienti Non-Fit Injuria”  

In the case of Dan v. Hamilton, the plaintiff chose to travel in Defendant’s car, even though he knew that the defendant was drunk. The car crashed, causing injuries to him. The defense of Volenti Non-Fit Injuria is only applied when the plaintiff has complete knowledge of the danger which is present in this case as Dan i.e. the plaintiff even after knowing that Hamilton was drunk, voluntarily got in his car. Thus the Hamilton i.e. the defendant can rely on this maxim of Volenti Non-Fit Injuria. 

  1. The Plaintiff knowing the risk, voluntarily agreed to incur it

For the maxim to be applicable it must be proved that the Plaintiff readily, knowing the risk, agreed to incur it. 

In the case of Imperial Chemical Industries vs Shatwell, the employees ignored measures for safety and undertook the risk of the work despite such measures being provided for by the employer. Here the court observed that the employees were negligent in their task and consented to the work without any compulsion from the employer, thus could not hold the Defendant liable, as he could exercise defense under Volenti non-fit injuria.

  1. The Consent must be freely given

Just like in Contractual agreements, consent should be free. Free consent means a consent not caused by coercion, undue influence, fraud, misrepresentation and mistake. For the defense of Volenti Non-Fit Injuria. In the case where a person is incapable of giving his consent by reason of comatose, insanity or minority, then the consent can be taken by the parents or guardians and are sufficient to be concluded as valid.

  • Consent may be expressed or Implied

An essential for the consent, in this case, is that the consent to suffer such harm may be expressed or implied. Under implied consent, the consent given is not expressly given but derived from one’s actions in the circumstances surrounding the case. An example here would be when the person put himself in a position where he knows the consequences, the defendant can take the defense of Volenti non-fit injuria.

  • Consent obtained by Fraud

In order for the defense of the maxim to be applicable, the consent must be free and it should not be acquired by any fraudulent means. 

  • No consent for illegal act

No consent can legalize an act which is prohibited by the law, and the defense of Volenti non-fit injuria will not be applicable. It has been observed that no person can give another person consent for committing a crime.

Exceptions to the Maxim

However, this defense is not absolute and comes with some limitations and exceptions. In all matters concerning this defense the Consent must be free:

This defense will not be applicable in cases where the consent of the plaintiff has been obtained by unlawful means such as fraud or compulsion. The defendant will not be able to take this defense and escape from the liability arising out of such activities. Consent by illegal means is not real consent. The act done by the defendant must be the same for which the consent was given.

In the case of Lakshmi Rajan v. Malar Hospital Ltd., a woman aged 40 years had developed a tumor in her breast. She went to the hospital to get it surgically removed.  She gave her consent for the removal of the tumor which had nothing to do with the uterus. But during the surgery, the doctor removed her uterus without any justification. The hospital was held liable as the act done was not the same for which the consent was given.

In the case of R. v. Williams, a music teacher persuaded his minor student for sexual intercourse by saying that this act was a method to improve her voice. He was held liable for rape by the court because the consent was obtained by fraud and therefore it was not real consent.

In another case of Bowater v. Rowley Regis Corporation, the plaintiff was a cart driver employed under the Municipal Corporation to go around the streets and collect road sweepings. The plaintiff was ordered by his employer to drive a horse which they both knew to be unruly and had run away on two occasions. Plaintiff protested but was ultimately ordered to drive the horse. He obeyed the order and took out the horse.  But the horse bolted and he was injured thereby. When the matter was taken to the court, it was held that the defense of violent non-fit injuria is not applicable as the consent obtained was under the compulsion to do the duty and the defendant was liable.

Latest Posts


Archives

Leave a Reply

Your email address will not be published. Required fields are marked *