Under law of torts, whenever a person does a wrongful act or an illegal omission that causes injury to another person or infringes on another person’s legal rights, he is held accountable and must compensate the victim of the act. However, due of the operation of tort defences, even if a person suffers a loss as a result of another person’s act, he may be unable to seek damages from that person. In torts, there are two types of defences: specific defences and general defences. Specific defences are those that are accessible in specific torts, such as defamation actions, where the defences of privilege, fair remark, and justification are applicable. General defences are ones that apply to most torts; for example, whether the action is for trespass, slander, false imprisonment, or some other wrong, the general defence of Consent may be used.
This maxim implies that anytime a person accepts the writs voluntarily and without regard for anyone’s boundaries. And if an accident occurs as a result of taking such a risk, either expressly or implicitly, and as a result of giving such voluntary permission, the person will not be entitled to compensation. As a result, no one will be able to sue that individual for damages because the act was one to which he voluntarily consented, and his assent is a strong defence against him. A right that has been voluntarily relinquished or abandoned cannot be enforced. You cannot sue someone for trespassing when they come to your property, and you cannot sue a surgeon after undergoing a medical procedure because you have given your express agreement to both acts. A person who agrees to the publication of a matter that is defamatory of himself cannot bring a defamation case.
The plaintiff’s consent serves as a defence, and this defence is known as VOLENTI NON-FIT INJURIA, which indicates that no injury is caused to a willing individual.
Essential Elements of Consent
The following are the essentials of consent defence:
1. The risk’s perception: (Knowledge of existing danger)
Plaintiff was aware that there was a danger of harm, i.e., Plaintiff should be fully aware of the nature of the act as well as the risk inherent in the act before consenting.
2. The Plaintiff Has Voluntarily Consented to Suffer the Repercussions of Risk: The plaintiff has voluntarily agreed to suffer the consequences of risk. The plaintiff’s assent is crucial in the defence of volenti non-fit injuria because the defendant can only employ this defence if he freely consents to an act.
3. Harm to Plaintiff Must Not Exceed What Has Been Agreed Upon: The conduct causing harm to the plaintiff must not exceed what has been agreed upon. The act should be legal in nature.
Thus, the main essential elements of consent are:
- Perception of risk
- Comprehension of risk (Understanding of the nature and extent of the danger)
- Acceptance of risk (by giving express or implied consent)
Limitations on Scope of the Doctrine
Even if the plaintiff has agreed to be harmed, he may still be able to pursue his claim against the defendant in these extraordinary circumstances. The maxim volenti non-fit injuria is subject to some limits.
The following are the four exceptions/limitations:
- Exceptions to the Volenti Non-Fit Injuria Doctrine: Rescue cases are an exception to the Volenti Non-Fit Injuria Doctrine. The plaintiff cannot be met with the defence of volenti non-fit injuria when willingly encountering a risk to save someone from an urgent danger caused by the defendant’s wrongful act.
- UNFAIR CONTRACT TERMS ACT, 1977(ENGLAND)
Unfair Contract Terms – The defendant cannot use this defence if the contract terms are unfair. Even if a laundry contractually absolves itself of any duty for clothing damage, a person may be entitled to compensation if the contract is unfair to customers.
- Breach of Statutory Duty: The maxim volenti non-fit injuria is not liable when there is no consent, licence (or unlawful act where plaintiff has not given any consent) or where there is a breach of statutory duty.
- This maxim shall not be applied in case of “NEGLIGENCE”.
Volenti non-fit injuria is a tort defence in which a person who has committed a wrong is absolved from liability because the victim of the wrong has given his permission to the commission of the wrong. The plaintiff’s assent is crucial in the defence of volenti non-fit injuria because the defendant can only employ this defence if he freely consents to an act. No one can give up or relinquish his legal rights.
The rule, according to Justice Bovin, is volenti non-fit injuria, not senti non-fit injuria, which means that mere awareness does not render a harm non-actionable; the risk must have been freely accepted. Consent is comprised of more than just knowledge. Consent must be distinguished from simply being aware of the risk.
This defence is also subject to specific limitations, such as rescue instances and the defendant’s negligence, in which the defendant is held guilty even if the plaintiff has provided consent. As a result, before allowing this defence, courts must check that the conditions of the defence are met and that the act does not fall within the defence’s limitations.
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