If a tort was filed, the plaintiff provides all the existing essentials against the defendant and he would be liable for the same. In some cases, the defendant can claim some general defences and can escape or reduce his liabilities. For example, if someone welcomes his friend to his house, then he cannot sue the friend for trespass. There is no remedy in the law of torts if a person permits or provides consent for hurting himself. In some cases, we can see that the plaintiff voluntarily gives consent to the other party to have some harm.
The consent may also be implied. For example, A player of cricket is implied to agree to any harm which may be caused during the match.
There are two elements for volenti non fit injuria. These elements are the conditions that should be fulfilled for getting the defence ,
Firstly, there is knowledge of the risk by the plaintiff.
Secondly, with the knowledge of risk, the plaintiff voluntarily consents to be harmed.
When the plaintiff has the knowledge of harm, still he is ready to do that act and voluntarily agrees to suffer this harm, the defendant may get free from his liability. But if the plaintiff has only mere knowledge, it is not treated as the consent of the party. It is known as Scienti Non-Fit Injuria. One of the examples for this is the case Smith v. Baker (1891). In this case, the plaintiff was employed to drill holes by a railroad company in a rock, near a crane operated by railroad workers. Stones were lifted by the crane and sometimes swung over the plaintiff’s head without warning. He was working near the crane and he had knowledge of it. While he was engaged in his work, a stone fell from the crane and injured him.
He sued the employers who were negligent in not warning him about the danger, despite the fact that he was aware of that. The court held that the mere fact that the plaintiff undertook or continued employment knowing that an activity in the workplace could be hazardous is insufficient evidence to prove maxim volenti non fit injury. Therefore in this case it is stated that mere knowledge without the assumption of actual risk is not enough to prove good defence. If the consent is not free there is also no volenti non fit injuria. If the plaintiff gives consent for an act, it must be free consent. The consent which is free from coercion, fraud, or any other mistake is known as free consent. If the consent is not free then it cannot be a good defence. If the defendant is not performing the act for which the plaintiff gives consent, then the defendant cannot enjoy the defence. Hence the act of the defendant must be the same for which the plaintiff gives free consent. In this case, Hegarty v. Shine, As a result of being infected with venereal disease by her lover, the plaintiff filed a lawsuit for assault.
The court held that mere concealment of facts may not be a fraud. It was also held in the case R. v. Clarence that the husband is not liable for an offence if he infected his wife with venereal disease even though he failed to inform her that he was ill. A person may compel another person to do an act without free consent. This situation arises in a master-servant relationship. The master may compel his servant to do an act and the servant may accept to do the act sometimes or otherwise he may lose the job. In the case Bowater v. Rowley Regis Corporation, (1944) K.B. 476 it was held that the corporation had negligently breached their duty to provide its employees with a safe horse. Moreover, it was found that the defence of Volenti non fit injuria was not applicable in this case.
LAW OF TORTS, R.K. Bangia, pp 29,30,31,32,33,34,35
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