DEFENCE OF VOLENTI NON FIT INJURIA

INTRODUCTION

There are many occasions on which harm- sometimes grievous harm- may be inflicted on a person for which he has no remedy in tort, because he or at least assented, to the doing of the act which the harm. Simple examples are the injuries received in the course of a lawful game or sport, or in a lawful surgical operation. The effect of such consent or assent is commonly expressed in the maxim ‘Volenti Non Fit Injuria”. Volenti Non fit Injuria means that the claimant voluntarily agrees to undertake the legal risk of harm at his own expense. This is a complete defence to an action. Requirements for a defence of Volenti Non Fit Injuria in a negligence action are a matter for some controversy. It must be shown that the claimant acted voluntarily in the sense that they could exercise a free choice. The idea underlying it has been traced as far back as Aristotle.[1] And it was also recognised in the works of the classical Roman jurists and in the canon law.

Volenti Non Fit Iniuria (or injuria) (Latin: "to a willing person, injury is not done") is a common law doctrine which states that if someone willingly places themselves in a position where harm might result, knowing that some degree of harm might result, they are not able to bring a claim against the other party in tort. Volenti only applies to the risk which a reasonable person would consider them as having assumed by their actions; thus a boxer consents to being hit, and to the injuries that might be expected from being hit, but does not consent to (for example) his opponent striking him with an iron bar, or punching him outside the usual terms of boxing. Volenti is also known as a "voluntary assumption of risk."

Volenti is sometimes described as the plaintiff "consenting to run a risk." In this context, volenti can be distinguished from legal consent in that the latter can prevent some torts arising in the first place. For example, consent to a medical procedure prevents the procedure from being a trespass to the person, or consenting to a person visiting your land prevents them from being a trespasser.

When a person consents to the infliction of some harm upon himself, he has no remedy for that in tort.[1] In case, the plaintiff voluntarily agrees to suffer some harm, he is not allowed to complain for that and his consent serves as a good defense against him. No man can enforce a right which he has voluntarily waived or abandoned[2]. Consent to suffer the harm may be express or implied. When you invite somebody to your house, you cannot sue him for trespass, nor can you sue the surgeon after submitting to a surgical operation because you have expressly consented to these acts. Similarly, no action for defamation can be brought by a person who agrees to the publication of a matter defamatory of himself[3].

Many a time, the consent may be implied or inferred from the conduct of the parties. For example, a player in the games of cricket or football is deemed to be agreeing to any hurt which may be likely in the normal course of the game. Similarly, a person going on a highway is presumed to consent to the risk of pure accidents.[4]

In the same way, a spectator at a cricket match or a motor race cannot recover if he is hit by the ball or injured by car coming on the track.[5] As is pointed out by Sir Frederick Pollock [6] the meaning of the word would be forced should we translate volens as willing. In the large majority of cases there is no real willingness, as, for instance, in a fencing bout, it is the will of the parties to be touched as little as possible and to that end their best skill is used. Still less is there an actual willingness if the but result in an accident not necessarily incident to what is being done as if a foil should break and injure one. The translation of volens as consenting or assenting is then more nearly correct.

One of the recognized general defences to liability in tort is that the plaintiff consented or assented to the doing of an act which caused harm to him.. This is known as volenti non fit injuria, or leave and license. Harm, suffered voluntarily, does not constitute a legal injury and is not actionable. A man cannot complain of harm to the chances of which he has exposed himself with, knowledge and of 'his free will. One who has invited of assented to an 'act 'being done towards him cannot, when he suffers from it complaint of it as a wrong. The maxim applies, in the first place to intentional acts which would otherwise be tortuous. for example, a person who trespasses on the land of another with the, knowledge, that there are spring guns in the wood or dangerous spots, cannot claim damages for an injury suffered by accidentally treading on intent wire communicating with the gun and thereby letting it off. In the second place, the maxim applies to consent to run the risk, of accidental harms which would otherwise be actionable. In such type of harms, in the absence of consent of the plaintiff, the defendant would be liable for a breach of duty of care. Consent exempts the defendants from the duty of care and hence excludes his liability for negligence.

In the second place, the maxim applies to consent to run the risk, of accidental harms which would otherwise be actionable. In such type of harms, in the absence of consent of the plaintiff, the defendant would be liable for a breach of duty of care. Consent exempts the defendants from the duty of care and hence excludes his liability for negligence. It is necessary that the consent must be based on full knowledge of the facts. in a case, the court did not accept this argument .and held that the maxim of volenti non fit injuria did not apply in this case because when the plaintiff signed as a competitor he did not have full knowledge of the risk which might arise from the defective lay-out of the ropes and that he had not willingly accepted the risk of injury which could arise from the fault of the defendants.

HISTORY  AND DEVELOPMENT

Volenti non fit iniuria is an often-quoted form of the legal maxim formulated by the Roman jurist Ulpian which reads in original: Nulla iniuria est, quæ in volentem fiat[7].

Volenti non fit injuria means that the claimant voluntarily agrees to undertake the legal risk of harm at his own expense. This is a complete defence to an action. Requirements for a defence of volenti non fit injuria in a negligence action are a matter for some controversy. It must be shown that the claimant acted voluntarily in the sense that they could exercise a free choice. Some judges are of the opinion that there must be an express or implied agreement between the parties before the defence can operate. The other view is that where the claimant comes across a danger, which has already been created by the defendant the defence can operate. If the defence is successful, then the claimant will recover no damages at all. This was also the case where contributory negligence was established before 1945. In cases before that date there was no practical difference for the claimant in being found to be volenti or contributory  negligent. The pre-1945 cases must be read with this in mind. Before this defence has any role to play, it must be shown that the defendant has committed a tort.

The maxim states a principle of estoppels applicable originally to a Roman citizen who consented to being sold as a slave. Although pleaded and argued below, it was only faintly relied on by counsel for the first defendant in this court. In my view, the maxim, in the absence of express contract, has no application to negligence   where the duty of care is based solely on proximity or ‘neighbour ship’ in the Atkinian sense. The maxim in English law presupposes a tortuous act by the defendant. The consent that is relevant is not consent to the risk of injury, but consent to the lack of reasonable care that may produce that risk and requires on the part of the plaintiff at the time at which he gives his consent full knowledge of the nature and extent of the risk that he ran. In Dann v Hamilton, Asquith J expressed doubts whether the maxim ever could apply to license in advance a subsequent act of negligence, for if the consent precedes the act of negligence, the plaintiff cannot at that time have full knowledge of the extent as well as the nature of the risk which he will run[8].

The general rule is that a person cannot complain for harm done to him if he consented to run the risk of it. For example a boxer, foot baler, cricketer, etc cannot seek remedy where they are injured while in the game to which they consented to be involved. Where a defendant pleads this defence, he is in effect saying that the plaintiff consented to the act, which he is now complaining of. It must be proved that the plaintiff was aware of the nature and extent of the risk involved.

In the case of Khimji Vs Tanga Mombasa Transport Co. Ltd (1962), The plaintiffs were the personal representatives of a deceased who met his death while travelling as a passenger in the defendant's bus. The bus reached a place where road was flooded and it was risky to cross. The driver was reluctant to continue the journey but some of the passengers, including the deceased, insisted that the journey should be continued. The driver eventually yielded and continued with some of the passengers, including the deceased. The bus got drowned together with all the passengers aboard.  The deceased's dead body was found the following day. It was held that the plaintiff's action against the defendants could not be maintained because the deceased knew the risk involved and assumed it voluntarily and so the defence of Volenti Non Fit Injuria rightly applied.

ESSENTIAL ELEMENTS

In English tort law, volenti non fit injuria is a full defence, i.e. it fully exonerates the defendant who succeeds in proving it.[2] The defence has two main elements:

  1. The plaintiff knew that the risk is there,
  2. He, knowing the same, agreed to suffer the harm.

If only first of these points is present, i.e., there is only the knowledge of the risk, it is no defence because the maxim doesnot imply that he assents to suffer it. It is not easy for a defendant to show both elements and therefore comparative negligence usually constitutes a better defence in many cases. However  comparative negligence is a partial defence, i.e. it usually leads to a reduction of payable damages rather than a full exclusion of liability. Also, the person consenting to an act may not always be negligent: a bungee jumper may take the greatest possible care not to be injured, and if he is, the defence available to the organiser of the event will be volenti, not comparative negligence.

CONSENT MUST BE FREELY GIVEN:

It is necessary for the application of maxim that the consent must be freely given. The consent is not free if it has obtained by influence, coercion, fraud, misrepresentation, mistake or the like elements which adversely affect a free consent.

For the defence to be available, the act causing the harm must not go beyond the limit of what has been consented. In  Hall V. Brookland Auto Racing Club,[1]  the plaintiff was a spectator at a motor car race being held at brooklands on a track owned by defendant company. During the race, there was a collision between two cars, one of which was thrown among spectators, thereby injuring the plaintiff impliedly took the risk of such injury, the danger being inherent in the sport which any spectator could forsee, the defendant was not liable.

In the case of Padmavati vs. Dugganaika, the defendants were going to a petrol station in their jeep, when the plaintiffs stopped them and asked for a ride, the defendants agreed and the plaintiffs boarded the jeep. While travelling, one of the screws in the wheels came off and the jeep crashed, killing one of the plaintiffs. The court found that the defendants were not liable because of the sheer accidental nature of the incident and also the plaintiffs agreed to board the jeep and thus, consented to the possibility of being injured in an accident. The principle of volenti non fit injuria is applicable in this case.

In the case of Wooldridge v Summer[2], The plaintiff was a professional photographer. During a horse show he positioned himself at the edge of the arena. He was knocked down and injured by a horse when the rider lost control while riding too fast. The Court of Appeal held that the defendant rider’s failure to control his horse was simply an error of judgement which did not amount to negligence. The standard of care owed by a competitor to a spectator was not to act with reckless disregard for the spectator’s safety. As this duty had not been broken there was no room for the defence of volenti non fit injuria to operate.  During the judgement of this case Diplock LJ has stated the following:

“A person attending a game or competition takes the risk of any damage caused to him by any act of a participant done in the course of and for the purposes of the game or competition, notwithstanding that such an act may involve an error of judgement or lapse of skill, unless the participant’s conduct is such as to evince a reckless disregard of the spectator’s safety. The spectator takes the risk because such an act involves no breach of the duty of care owed by the participant to him. He does not take the risk by virtue of the doctrine expressed or obscured by the maxim volenti non fit injuria.”. The standard of care laid down in this case has been doubted in subsequent cases.

In Condon v Basia[3] standard of reasonable care was applied to participants in a football match. In Blake v Galloway [4]a number of people were involved in horseplay involving throwing pieces of bark at one another and a participant was struck in the eye. The Court of Appeal set the standard of care in these circumstances as recklessness or a very high degree of carelessness.

The defence applies in cases of intentional and negligent infliction of harm, although it operates in different ways. In intentional torts the defence operates in the form of consent. Where the claimant has consented to the defendant’s act they will have no action. So a boxer who is struck by their opponent cannot sue them for battery. A patient who signs a consent form for a surgical operation cannot later sue the surgeon for battery. Where the harm was negligently inflicted, the defence gives rise to greater difficulties. The defendant has to show that the claimant assumed the legal risk of injury in circumstances where the defendant’s act would otherwise amount to negligence. The effect of the defence is that the claimant consents to exempt the defendant from a duty of care which would otherwise have been owed. There are certain requirements before the defence will apply.

In the absence of full knowledge of the fact and circumstances, the consent of the plaintiff cannot be pleaded as defence. For instance, in Burnett v. British Waterways Board,[5] the plaintiff was employed by the defendant on a barge, and plaintiff received injuries owing to the breaking of a defective rope by which the barge was being pulled. It was held that there was no implied consent to bear the risk on the part of plaintiff as he had no knowledge of the defective rope. Similarly, the plaintiff cannot be prevented from recovering damages, where he takes the risk without having full knowledge of the faulty conditions of a thing.

CONSNET MUST BE FREE:

Lakshmi rajan vs. Malar hospital

In this case, the plaintiff had a tumour on her breast and went to a hospital to get it surgically removed; she consented to the surgical procedure for the removal of the tumour. The tumour had nothing to do with her uterus. The surgeon not only removed the tumour, but also removed her uterus. The hospital was held liable because they had performed an action without the consent of the patient and the court found the defendants liable.

  • If the consent is obtained by fraud, the consent is not real and cannot be used as a defence in a tort.
  • If the consent is obtained from a person who is forced to give his consent and is not given the freedom of choice. That consent is not taken into account because the person is no longer free to choose his options. This is usually present in master servant relationships where, the servant is forced to commit an act under pressure. Thus there is no principle of volenti non fit injuria does not apply to a servant if he is forced to carry out an act despite his protests.

 

A fair blow in a boxing match, an  inoculation, a welcome embrace are not torts, because the claimant consents to them. It is clear that consent may be implied from conduct as well as expressed in words so that the defendant escapes liability if he was justified in inferring that the claimant consented even though, secretly he did not. Many a times, the consent may be implied or inferred from the conduct of the parties. For example, a player in the game of cricket or football is deemed to be agreeing to any hurt which may be likely in normal course of the game. Similarly a person going on highway is presumed to consent to the risk of pure accidents.[6]  The very acts of taking part in a boxing match or presenting one’s arm for injection, for example clearly convey consent. The consent, however must be freely given so that one obtained by wrongful threats sufficient to overbear the claimant’s will would not be effective. When you invite someone to your house, you cannot sue him for trespass.

INFORMED CONSENT:

Consent to one medical procedure does not justify another, as where a condition is discovered and treated for mere convenience during the authorised treatment of another condition or where an operation authorised by patient A is performed on patient B by mistake.[7] However, so long a the patient understands the broad nature of what is to be done, his consent is not vitiliated by failure to explain the risks inherent in the procedure[8], for t would be deplorable to deal with such cases under the rubric of trespass to person.

CONSENT OBTAINED BY FRAUD:

If the consent of the plaintiff has been obtained by fraud or under compulsion or under some mistaken impression, such consent doesn’t deserve a good defence.

Ex turpi causa non oritur actio : From an immoral cause, no action arises. In R. V. Williams, The defendant was a singer who use to teach students about singing. Defendant during the singing lesson convinced his 16 years old student to give her consent for sexual intercourse with him for the purpose of improving her voice that will make her a good singer.

Consent given under circumstances when a person does not have a freedom of choice, is not the proper consent. A person may have compelled by a situation under which he has knowingly undertaken worth which if he had free choice, he would have not taken.

Such consents are generally arises out of the master-servant relationship. Thus, a man cannot be said to be truly willing unless he is in a position to chose freely and freedom of choice predicates, not only full knowledge of circumstances on which exercise of choice is conditional, so that he may be able to choose wisely, but the absence of any feeling of constraint so that nothing shall interfere with the freedom of his will. Therefore, there is no Volenti Non Fit Injuria, when a servant is compelled to do some work in spite his protest

NEGLIGENCE OF DEFENDANT:

Slater vs. Clay Cross Co Ltd

In this case the plaintiff was hit by a train while walking in a tunnel owned by the railway company. The railway company had instructed its train drivers to blow a whistle and slow down at the entrance of the tunnel. These instructions were not followed by the train driver. The court held the defendant liable for the injury because even though the plaintiff had taken the risk of walking in the tunnel, the defendant had enhanced that risk through negligence. When the plaintiff consents to take some risk, the presumption is that defendant will not be negligent.

 

             APPLICATION OF DEFENCE IN DIFFERENT CASES

VOLENTI NON FIT INJURIA IN EMPLOYMENT RELATIONSHIP:

As long ago as 1891, the House of Lords recognised that an employee who complained of unsafe practice, but nevertheless continued to work could not truly be said to have voluntarily agreed to waive their legal rights. In the case of Smith v Baker & Sons[9] , The Claimant sued his employers for injuries sustained while in the course of working in their employment. He was employed to hold a drill in position whilst two other workers took it in turns to hit the drill with a hammer. Next to where he was working another set of workers were engaged in taking out stones and putting them into a steam crane which swung over the place where the Claimant was working. The Claimant was injured when a stone fell out of the crane and struck him on the head. The Defendant raised the defence of ‘volenti non fit injuria’ in that the Claimant knew it was a dangerous practice and had complained that it was dangerous but nevertheless continued. At trial the jury found for the Claimant. The Defendant appealed and the Court of Appeal allowed the appeal holding that the Claimant was precluded from recovering as he had willingly accepted the risk. The Claimant appealed to the House of Lords and there The appeal was allowed. The Claimant may have been aware of the danger of the job, but had not consented to the lack of care. He was therefore entitled to recover damages.

This position of the law was affirmed in Bowater v Rowley Regis Corporation[10]. In this case the plaintiff, a cart driver, was asked by the defendant’s foreman to drive a horse which to the knowledge of  both, was liable to bolt. The plaintiff protested at first but later took out the horse in obedience to the order. The horse was bolted and the plaintiff was injured thereby. Held the maxim, ‘volenti non fit injuria’ did not apply and the plaintiff was entitled to recover.

As a matter of public policy, the defence is not generally available where an employer is in breach of statutory duty, however limited exceptions exist to this:

Imperial Chemical Industries Ltd v Shatwell [11]

The claimants were brothers who were qualified shotfirers employed by the defendant. They were injured as a result of an explosion at the defendant's quarry caused by the brothers' negligence. They had insufficient wire to test a circuit to allow them to test from a shelter. Another worker had gone to fetch more wire but the brothers decided to go ahead and test with the shorter wire. Each brother claimed against the defendant based on their employer's vicarious liability for the negligence and breach of statutory duty of the other brother. The defendant raised the defence of volenti non fit injuria in that the brothers had full knowledge of the risk and were acting against express instructions. At trial the judge held that the defence of volenti could not apply where there was breach of a statutory duty. This was upheld in the Court of Appeal.

Held that the appeal was allowed. The brothers had deliberately acted in defiance of the employer's express instructions in full knowledge of the risks. The workers were under the statutory duty not the employer. The employer had been instrumental in bringing in the statutory regulations and ensured all workers were aware of them. They had also previously dismissed a worker for flouting the regulations.
IN THE CASE OF DRUNKEN DRIVER:

In the case of    Dann v Hamilton[12]  The Claimant was injured when she was a willing passenger in the car driven by the Mr Hamilton. He had been drinking and the car was involved in a serious crash which killed him. In a claim for damages the Defendant raised the defence of Volenti Non Fit Injuria in that in accepting the lift knowing of his drunken condition she had voluntarily accepted the risk. it was Held that The defence was unsuccessful and The claimant was entitled to damages. In declaring the judgement  Asquith J also made the following rule:

"There may be cases in which the drunkenness of the driver at the material time is so extreme and so glaring that to accept a lift from him is like engaging in an intrinsically and obviously dangerous occupation, intermeddling with an unexploded bomb or walking on the edge of an unfenced cliff. It is not necessary to decide whether in such a case the maxim 'volenti non fit injuria' would apply, for in the present case I find as a fact that the driver's degree of intoxication fell short of this degree".

An example of where this was successfully invoked can be seen in the case of Morris v Murray[13]. In this case the Claimant and Defendant had been drinking all day. The Defendant, who had a pilot licence and a light aircraft, suggested that they took the aircraft for a flight. The Claimant agreed and drove them both to the airfield. They started the engine and the Defendant took off but crashed shortly after. The Defendant was killed and the Claimant was seriously injured. An autopsy revealed that the Defendant had consumed the equivalent of 17 Whiskeys. In an action for negligence, the Defendant raised the defence of Volenti Non Fit Injuria. It was held that the defence was allowed. The actions of the Claimant in accepting a ride in an aircraft from an obviously heavily intoxicated pilot was so glaringly dangerous that he could be taken to have voluntarily accepted the risk of injury and waived the right to compensation.

The impact of S.148(3) of the Road Traffic Act 1972 (Now S.149(3) RTA 1988) was considered in Pitts v Hunt and it was held that it precluded the application of the defence of volenti in circumstances where a person accepted a lift from an intoxicated driver in circumstances where the driver was subject to compulsory insurance. In that case[14] The Claimant, Mr Pitts (aged 18), and Mr Hunt (aged 16), were friends. They had been out for an evening together. Mr Hunt gave the Claimant a lift on the back of his trial motorbike which was a Suzuki 250cc. He had no licence to ride the bike on the road, indeed the engine capacity limit for a 16 year old to ride legally would be 50cc. He also had no tax or insurance. The pair consumed alcohol at their destination and Mr Hunt was twice over the legal limit for driving. Nevertheless, the pair embarked on their journey home on the motorcycle. Witnesses gave evidence that the two were obviously very drunk and Hunt was driving recklessly and erratically. He was zig-zagging down the centre of an A road at great speed, with both the parties shouting and jeering. Mr Pitts was jeering Mr Hunt on and encouraging the dangerous driving. At one time, Mr Hunt drove dangerously close to a witness in order to scare them. Unfortunately Mr Hunt hit an oncoming car when he was travelling at speed on the wrong side of the road. Mr Hunt was killed and the Claimant was left permanently partially disabled. He brought an action for the injuries sustained against the personal representatives of Mr Hunt. In their defence they raised the defences of volenti non fit injuria, contributory negligence and ex turpi causa. The trial judge held that the Claimant could not recover based on the fact that ex turpi causa operated to preclude the imposition of a duty of care and also that the Claimant was 100% responsible for his own injuries under the Law Reform (Contributory Negligence) Act 1945. On the issue of volenti he held that s.148(3) of the Road Traffic Act 1972 precluded the application of the defence. The Claimant appealed. And the court of appeal declared that Ex turpi causa and public policy did operate to preclude the imposition of a duty of care. The trial judge was wrong in principle in finding that the Claimant was 100% contributory negligence since the wording of the Act precluded such a finding. S.148(3) of the Road Traffic Act did preclude the application of the defence of volenti non fit injuria.

IN THE CASES OF  SPORTING EVENTS:

A participant in sporting events is taken to consent to the risk of injury, which occurs in the course of the ordinary performance of the sport. In the case of Condon v Basi [15]  The Claimant suffered a broken leg during a tackle from the Defendant during a football match. The Claimant was playing for Whittle Wanderers and the Defendant for the Khalso Football Club. Both clubs were in the Leamington local league. The question for the court was the standard of care expected  of a football player. Court of Appeal held that The standard of care varies according to the level of expertise the player has. The Defendant was in breach of duty as the tackle was reckless even with regards the standard expected of a local league player. Whilst a participant can be taken to accept the risks of injury inherent to such sporting activities they do not accept the risk of injury which occurs outside the rules of the game. And Sir John Donaldson MR held that The standard is objective, but objective in a different set of circumstances. Thus there will of course be a higher degree of care required of a player in a First Division football match than of a player in a Fourth Division football match.

This was also taken to apply to spectators at sporting events. And one of such case is Wooldridge v Sumner[16]. here The claimant was a photographer at a horse show. He was situated within the ring of the horse show and not behind the barriers where the spectators were housed. He was on a bench with a Miss Smallwood who was a director of the company which employed the Claimant. He had been taking little interest in the proceedings and was not experienced in regard to horses. During the competition, one of the horses, Work of Art owned by the Defendant, came galloping at great speed towards the bench where they were sitting. The Claimant took fright at the approach of the galloping horse and attempted unsuccessfully to pull Miss Smallwood off the bench. He stepped or fell back into the course of the horse which passed three or few feet behind the bench, and was knocked down. The Claimant brought an action in negligence arguing the rider had lost control of the horse and was going too fast. The defendant raised the defence of Volenti Non Fit Injuria. it was held that there was no breach of duty so the Claimant's action failed. On the issue of Volenti Non Fit Injuria it was held that consent to the risk of injury was insufficient. There must be consent to the breach of duty in full knowledge of the nature and extent of the risk. and Diplock LJ opined as follows

"The maxim in English law presupposes a tortuous act by the defendant. The consent that is relevant is not consent to the risk of injury but consent to the lack of reasonable care that may produce that risk… and requires on the part of the plaintiff at the time at which he gives his consent full knowledge of the nature and extent of the risk that he ran"

EXCEPTIONS TO THE DEFENCE

In the following conditions, this defence cannot be taken even if the plaintiff has consented -

Rescue Conditions - When the plaintiff  suffers injury while saving someone. For example, A's horse is out of control and is galloping towards a busy street. B realizes that if the horse reaches the street it will hurt many people and so he bravely goes and control's the horse. He is injured in doing so and sues A. Here A cannot take the defence that B did that act upon his own consent. It is considered as a just action in public interest and the society should reward it instead of preventing him from getting compensation.When a plaintiff voluntarily encounters a risk to rescue somebody from an imminent danger created by the wrongful act of the defendant, he can’t use the defence of Volenti Non Fit Injuria.
 CASE LAWS:

Haynes V. Harwood

Defendant’s servant left two horse can unattended in street. A boy thrown a stone towards the horse and horse bolted and started running here and there. This created danger to women and children in the street. A policeman saw all this and dived into the scene to prevent the danger. Though he succeeded but was severely injured in doing so. Defendant was held liable, even when defendant pleaded that he was just a policeman and was doing his duty.

Wagner V. International Railways

Railway passenger was thrown out of a running car by a sudden lurch. When the car stopped, rescuer got down to find his cousin’s body. Due to darkness he also got injured. He brought an action against the railway company. It was held that it being a rescue case, the railway company was liable. Cardozo, J. Said: “ Dangers invite rescue. The cry of distress is the summons to the relief. The law does not ignore those reactions in tracing conduct to its consequences. it recognises them as normal. the wrong that imperils life is a wrong to the imperilled victim: it is a wrong also to the rescuer. The risk of rescue if only it is not wanton, is born of the occasion. The emergency begets the man. the wrongdoer may not have foreseen the coming of a deliverer. He is accountable as if he had.”

Unfair Contract Terms - Where the terms of a contract are unfair, the defendant cannot take this defence. For example, even if a laundry, by contract, absolves itself of all liability for damage to clothes, a person can claim compensation because the contract is unfair to the consumers. It Limit the rights of a person to restrict or exclude his liability resulting from his negligence by a contract term or by notice. When the defendant by his negligence has created a danger to the safety of A and he can foresee that B will likely to rescue A out of that danger. Defendant is liable to both A and B.

The Unfair Contract Terms Act 1977 (c.50) is an Act of Parliament of the United Kingdom which regulates contracts by restricting the operation and legality of some contract terms. It extends to nearly all forms of contract and one of its most important functions is limiting the applicability of disclaimers of liability. The terms extend to both actual contract terms and notices that are seen to constitute a contractual obligation.

The Act renders terms excluding or limiting liability ineffective or subject to reasonableness, depending on the nature of the obligation purported to be excluded and whether the party purporting to exclude or limit business liability, acting against a consumer.

It is normally used in conjunction with the Unfair Terms in Consumer Contracts Regulations 1999(Statutory Instrument1999 No. 2083), as well as the Sale of Goods Act 1979and the Supply of Goods and Services Act 1982.

There are however some limitations to the application of the maxim of Volenti Non Fit Injuria:

First, no unlawful act can be legalized by consent, leave, or license.

Secondly, the maxim has no validity against an action based on breach of statutory duty.

Thirdly, the maxim does not apply in rescue cases such as 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 in a member of his family, or is a mere stranger to whom he owes no such special duty.

Fourthly, the maxim does not apply to cases of negligence.

Lastly, this maxim does not apply where the act of the plaintiff relied upon to establish the defence under the maxims the very act, which the defendant was under a duty to prevent.

And the maxim will not apply when the act relied upon is done because of the psychological condition which the defendant’s breach of duty had induced.

One of the limitations of the maxim is that the consent must be freely given. If the plaintiff has no free choice or the consent has been obtained by fraud, coercion, misrepresentation, undue influence or mistake, the maximum Volenti Non Fit Injuria will not apply.

KNOWLEDGE DOES NOT NECESSARILY IMPLY ASSENT OR CONSENT:

Knowledge does not necessarily imply assent or consent, mere knowledge of the risk of danger is not sufficient, knowledge of the risk is necessary but it alone cannot attract the application of the maxim. For application of the maxim, the plaintiff must not only have the knowledge, but also the consent to run the risk.

CONSENT TO ILLEGAL ACTS:

Consent to Illegal acts, if a person is charged with a criminal offence, he' cannot avoid his liability on the ground that the victim consented to the commission of the crime.

APPLICATION OF THE MAXIM IN CASES OF NEGLIGENCE:

Application of the maxim in cases of negligence, the plea of Volenti Non Fit Injuria can succeed if the defendant establishes that the plaintiff consented to run the risk. But even when it is shown that the plaintiff assented to bear the risk, usually it does not include the negligence of the defendant.

[1] (1932)All E.R. Rep. 208: (1932) 1 KB. 205

[2]  [1963] 2 QB 43

[3]  [1985] 2 All ER 453

[4] [2004] 3 All ER 315

[5] (1972)2 All ER 1353

[6] Holmes v. Mather,(1875) L.R 10 Ex. 261

[7] Chatteron v. Gerson [1981]Q.B. 432.

[8] Cf. Canterbury v. Spence(1972) 464 F. 2d 772

[9]  [1891] AC 325

 

[10]  [1944] KB 476

[11] [1965] AC 656 

[12] [1939] 1 KB 509

[13]   [1991] 2 QB 6

[14]  [1990] 3 All ER 344 

[15] [1985] 1 WLR 866

[16] [1963] 2 QB 43

[1] Under criminal law also, consent is a defence in certain cases.

[2] Salmond, torts, 14th ed., p.47

[3] Chapman v. Lord Ellesmere, (1932) All E.R 221; (1932) 2 K.B. 431

[4] Holmes  v. Mather,  (1875) L. R 10 Ex. 261.

[5] Hall v. Brookland Aauto Racing club, (1932) All E.R. 221

[6] Pollock  on Torts p. 143.

[7]  Digest Book 47, title 10, section 1 - 5, quoting Ulpian, On the Edict, Bk. 56. Literally translated as "No injury is committed against one who consents"

 

[8] Edward Clarence Wright, The Modern Doctrine of Volenti Non Fit Injuria, 32 Cent. L.J. 120, 126 (1891)

Content

[1]   T Beven in Journal of Comparative Legislation(1907), p.185 Ingman [1981] J.R.I

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