Whenever plaintiff brings action for the tort committed by defendant having some essentials which are required for the liability in tort, then defendant will be held liable for the same under the law of torts. But there are some defences under which defendant can escape himself from the liability of that particular tort which was committed by him. in this article I will dicuss about the one major defence i.e; volenti non fit injuria

So knowledge of torts is incomplete without having no knowledge of its defences. So here is the general defence for defendant which can exclude him from the liability in torts.

 Volenti non fit injuria

The basis of this defence is free consent. If the plaintiff is aware about the risks and harms which he can suffer during performing that service or work, and he still voluntarily agrees to do that act with his free consent then, in such cases, if some harm has caused to plaintiff then, the  defendant will not be liable for the same on the basis of volenti non fit injuria.

Hallv. Brooklands Auto Racing Club, the plaintiff was a spectator of a car racing event and the track on which the race was going on belonged to the defendant. During the race, two cars collided and out of which one was thrown among the people who were watching the race. The plaintiff was injured. The court held that the plaintiff knowingly undertook the risk of watching the race. It is a type of injury which could be foreseen by anyone watching the event. The defendant was not liable in this case

In Padmavati v. Dugganaika, the driver of the jeep took the jeep to fill petrol in it. Two strangers took a lift in the jeep. The jeep got toppled due to some problem in the right wheel. The two strangers who took lift were thrown out of the jeep and they suffered some injuries leading to the death of one person. 

The conclusions which came out of this case are:

  • The master of the driver could not be made liable as it was a case of a sheer accident and the strangers had voluntarily got into the vehicle.
  • The principle of Volenti non fit injuria was applicable here.

The defence will not be served as a good defence under the following conditions:

1. If the consent is not a free consent

For this defence, the consent of the plaintiff must be free for doing that particular act and if any other act was done whose consent was not given, then the defence would not be served as good defence and defendant will be held liable for that and the principle of volenti non fit injuria will not be applicable for the same and also the Consent must be from any fraud, compulsion, mistake of any fact etc, only then the liability can be excluded on the basis of this doctrine.

In the case of Lakshmi Rajan v. Malar Hospital, a 40 year old married woman noticed a lump in her breast but this pain does not affect her uterus. After the operation, she saw that her uterus has been removed without any justification. The hospital authorities were liable for this act. The patient’s consent was taken for the operation not for removing the uterus. 

2. Consent obtained by fraud

If the consent is obtained by any fraud, then there will be no basis for the applicability of this principle.

In R. v. Wiliams, a music teacher was held guilty of raping a 16 years old girl under the pretence that the same was done to improve her throat and enhancing her voice. Here, the girl misunderstood the very nature of the act done with her and she consented to the act considering it a surgical operation to improve her voice.

  • Mere concealment of facts will not be considered under fraud

In Hegarty v. Shine, it was held that mere concealment of facts is not considered to be a fraud so as to vitiate consent.  Here, the plaintiff’s paramour had infected her with some venereal disease and she brought an action for assault against him. The action failed on the grounds that mere disclosure of facts does not amount to fraud based on the principle ex turpi causa non oritur actio i.e. no action arises from an immoral cause.

3. Consent obtained under compulsion

If the consent so obtained is under compulsion or when the person’s own willingness was not there to perform that particular act and when the person has no freedom to choose according to his own will only compulsion is there, then the defence will not be treated as good defence and defendant will be held liable for the committed tort.

4. Mere knowledge does not imply assent

For the applicability of this principle, the person must be awared by the risks and harms which can be caused by the act. And he, knowing the same, agreed to suffer the harm. Without any of these two essentials the following maxim i.e; volenti non fit injuria will not be come into force to escape defendant from the liability.

In the case of Bowater v. Rowley Regis Corporation, a cart-driver was asked to drive a horse which to the knowledge of both was liable to bolt. The driver was not ready to take that horse out but he did it just because his master asked to do so. The horse, then bolted and the plaintiff suffered injuries. Here, the plaintiff was entitled to recover.

In Smith v. Baker, the plaintiff was an employer to work on a drill for the purpose of cutting rocks. Some stones were being conveyed from one side to another using crane surpassing his head. He was busy at work and suddenly a stone fell on his head causing injuries. The defendants were negligent as they did not inform him. The court held that mere knowledge of risk does not mean that he has consented to risk, so, the defendants were liable for this.  The maxim volenti non fit injuria did not apply. 

But, if a workman ignores the instructions of his employer thereby suffering injuries, in such cases this maxim applies.

5. Negligence of the defendant

If some harm is caused to plaintiff due to the negligence of the defendant even if consent was given by the plaintiff but the harm which caused to plaintiff is because of the negligence of the defendant then he will be held liable and this maxim will not applicable for the same. For applicability of this maxim, the defendant must not be negligent

In Slater v. Clay Cross Co. Ltd., the plaintiff suffered injuries due to the negligent behaviour of the defendant’s servant while she was walking along a tunnel which was owned by the defendants. The company knew that the tunnel is used by the public and had instructed its drivers to give horns and drive slowly whenever they enter a tunnel. But the driver failed to do so. It was held that the defendants are liable for the accident.

Limitation on the scope of the doctrine

1. In rescue cases:

when plaintiff voluntarily causes harm to himself to rescue someone from any imminent danger created by the defendant by doing some unlawful act. Then in such cases the defendant will be held liable.

In Haynes v. Harwood, the defendants’ servant left two unattended horses in a public street. A boy threw a stone on the horses due to which they bolted and created danger for a woman and other people on the road. So, a constable came forward to protect them and suffered injuries while doing so. This being a rescue case so the defence of volenti non fit injuria was not available and the defendants were held liable.

However, if a person voluntarily attempts to stop a horse which creates no danger then he will not get any remedy. 

In the case of Wagner v. International Railway, a railway passenger was thrown out of a moving train due to the negligence of the defendants. One of his friends got down, after the train stopped, to look for his friend but then he missed the footing as there was complete darkness and fell down from a bridge and suffered from some severe injuries. The railway company was liable as it was a rescue case.

 2. by the unfair contract terms act, 1977 (England)

The Unfair Contract Terms Act, 1977, limits the right of a person to exclude his liability resulting from his negligence in a contract.

Inspite of the fact that the plaintiff has consented to suffer the harm, he may still be entitled to his actions against the defendant in these exceptional situations.

Aishwarya Says:

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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