It is well establishes rule of common law that if a person himself invites a danger and injury is caused to him, nobody shall be responsible for such injury. Such principle is commonly known as doctrine of ‘Volenti non fit injuria’. Shall injury shall not constitute a legal injuria and as such it is not actionable. In day to day affairs many such injuries are sustained by the people.
This particular maxim is nothing but expression of good sense and justice. No principle of law in the world may hold a person responsible for the injury which is outcome of the person’s own negligence or efforts. Thus if a person knowingly invites danger and danger visits him, consequently he suffers, for such sufferance none is responsible. The doctrine implies further that a person who consents to an act being done or takes upon himself the risk of suffering damage, cannot bring an action in respect of that act or damage so is a person who engages himself in boxing, in wrestling matches or agrees for surgical operations then if on account of such consent he suffers or an injury is caused to him, he cannot bring any action against the person whom he gives such consent.
For the application of this maxim, the following conditions should be fulfilled:
1. Consent must be voluntary: It should not have been induced by undue influence, fraud, coercion, misrepresentation, mistake or the like elements which adversely affected a free consent. Thus, it must be freely given.
Imperial Chemicals Industries Ltd. vs. Shatwell (1956) A.C.25
The plaintiff and his brothers who were working in the quarry of the defendant disregarded the defendant’s orders and statutory regulations in resting some detorators without proper prosecutions. As a result an explosion occurred this injured them. It was held that the plaintiff had consented to the very conduct which resulted in injury to them.
2. The act to which consent is given must not in itself be illegal. That is, fighting with naked fist, a kicking match or a duel with sharp weapons.
R. Vs. Coney (1891) A.C. 325, 360 – The fists of trained pugilists are dangerous weapons.
R. Vs. Denovon (1882) 8 Q. B.D. 534, 547 – No person can license another to commit a crime.
3. Knowledge of a risk is not the same thing as consent to run the risk. The maxim is “Volenti non fit injuria” and not “Scienti non fit injuria”.
There are certain limitations to the application of this maxim:
1. No consent- no leave or license – can legalize an unlawful act. Example: fight with naked fists, a kicking match or a dual with sharp swords.
2. The maxim has no validity against an action based on a breach of statutory duty – Wheeler vs. New Merton Board Mill Ltd (1933) 2 K.B. 669
3. Rescue cases: The maxim does not apply where the plaintiff has, under an exigency caused by the defendant’s wrongful misconduct, consciously and deliberately faced a risk, even of death, to rescue another from imminent danger of personal injury or death whether the person endangered is one to whom he owes a duty of protection as a member of his family, or is a mere stranger to whom he owes no such special duty – Haynes Vs. Harwood, (1935) 1 K.B. 146.
4. Cases of negligence: Generally the maxim does not apply to cases of negligence. It was held that except perhaps in extreme cases the maxim did not apply to the tort of negligence and that the plaintiff was entitled to recover– Dann vs. Hamilton, (1939) 1 K.B. 509.
Keeping in mind that tort law is not as prevalent in India and uncodified; the defence comes in use of the law bearers a lot, especially in the games like cricket, boxing. Spectators are injured on a regular basis. This defence comes as a relief not only to the players but the stadium authorities as well. This defence is pretty straight forward and does not require too many essential to be fulfilled. The conditions to be met are consent and knowledge of the risk. If these essentials are fulfilled, this defence is considered by the court.
I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.
If you are interested in participating in the same, do let me know.
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