Volenti Non Fit Injuria

Introduction:

In the law of torts, it is the rule if some person causes harm to another person intentionally or due to some other reasons the person who commits the activity which harms the other person has to pay damages or provide some other remedy whatever the concerned court decides to the victims of such acts. But there are some exceptions to this rule where even if the harmed is caused the victim can not claim the damages or remedy for such harm because of the general defences given in the law of torts which in exceptional cases the court takes the decision in the favour of the defendant irrespective of whether the harm is caused to the plaintiff or not. Such a general defence is Volenti non fit injuria in which the plaintiff can not claim damages for the injury caused to him because he consents to the act which caused the injury to him.

What is Volenti Non Fit Injuria?

In the law of torts, it is the duty of every individual to take all the necessary precautions and all the reasonable care to avoid any inevitable harm to oneself or any other person. For example, if someone is riding a bike it is his duty to drive with the prescribed speed limit to avoid any unforeseen circumstances and to avoid any harm or injury on himself or the other peoples. This is the general rule to the law of torts but there are certain cases in which the defendant can escape the liability of causing harm to other and such defences are known as General defences in the law of torts and such a defence is Volenti non fit injuria in which the defendant can escape liability of causing injury to another person. In the cases in which the defendant has the defence that the injury which is caused to the plaintiff has voluntarily consented than the plaintiff can not claim damages for such injuries because he has given his consent for the act which has caused injury to him. The voluntarily given consent of the plaintiff acts a defence for the defendant as a defence of Volenti non fit injuria which means to a willing person, no injury happens.

Illustration: If A does not have a driving license and B knows about the same that A does not have a driving license instead of which B goes on a bike ride with A and then if they suffer any injury because of the accident caused because of A’s driving B cannot claim for damages for the same. But if in the above case B does not have any idea about the driving of A and A gives false information about having a driving license and in that situation, B can claim for the damages caused to him.

Elements of Volenti Non Fir Injuria

There are some necessary elements which should be present if the defendant wants to take the defence of Volenti non fit injuria and only after the said elements are proven to be fulfilled, the defendant can take the defence of Volenti non fit injuria.

There are 2 elements which needs to be Fulfilled

1. The plaintiff has the knowledge of the risk
2. The plaintiff with the knowledge of the has voluntarily agreed to suffer the harm which is intended.

In the cases where the plaintiff has sufficient knowledge about the risk or harm, which can be caused to him because of doing a certain act and even after accessing the risk he chooses to do the said act and hence agrees to suffer the injury by such an act the defendant gets relived of his liability. But the mere knowledge of the risk does not amount to consent for the risk which is known as scienti non fit injuria.

Illustration: A goes to do an adventure water sports which is already mentioned by the defendant that is a sport in which there are risks involved and even with the knowledge of the risk B decides to do the same with the firm of B. And even after taking all reasonable care by the organization of B if A suffers the injury, he cannot claim damages for such injuries. But on the other hand, In the case of Smith v. Bakers and sons (1891) AC 325, the plaintiff was an employee of the defendant and the place where he used to work for the defendant had a crane which carried heavy rocks. The plaintiff had also complained about the same to the defendant but the defendant did not take the matter seriously and one day the plaintiff suffering the injury due to the heavy rocks falling on his head and the plaintiff suffered serious injuries and for the same, the plaintiff sued the defendant. The court held the defendant liable for the same because the plaintiff had agreed to suffer the dangers of the job but not for the injury caused because of the lack of due care.

Burden of Proof

In the case where the defendant wants to take the defence of Volenti non fit injuria the burden of proof lies on himself, he has to prove that in the front of the concerned court that the plaintiff was aware of all the risk involved and has voluntarily consented for the same and also that he took all the reasonable care to avoid such injuries to take a defence of Volenti non fit injuria. In the case of Hall v. Brookland (1932) All ER Rep 208, the plaintiff goes to watch a car race and in the same race, two cars get into an accident and due to which the plaintiff who was sitting in the audience also suffers some injuries. Then the plaintiff sues the defendant for the damages but the defence of Volenti non fit injuria was applied by the court as the plaintiff has given the consent of risk by going to watch such car races.

Consent can be Expressed or Implied

 The consent of the plaintiff to suffer the loss does not need to be expressly given and even by his acts his consent can be implied

Illustration: If A is a car racer and due to which he suffers any injury he can not claim for the damages as even with knowledge of the risk involved, he has voluntarily consented to be a car racer.

Illustration: If A goes to watch a football tournament and due to a toss by a player A suffers series injuries, here A cannot claim damages as he has the knowledge of the risk involved and even after taking the reasonable care by the defendant, he has suffered the injury.

Consent of the Plaintiff must be Free

The consent of the plaintiff for such acts should be free and should not be acquired by coercion, misrepresentation or fraud and should fulfil all the requisites of free consent. In the case of Ravindra V. Laxmi Ranjan and Anr, the plaintiff was suffering from a breast tumour and the defendant was the doctor of the plaintiff and during the operation for the removal of the tumour the doctor also removed the uterus of the plaintiff which has no concern with the tumour. In this case, the defendant was not able to use the defence of Volenti non fit injuria.

Consent by fraud

If the consent of the plaintiff is obtained by fraud the defendant can not use the defence of Volenti non fit injuria, in R. V Williams (193) 1 KB 340, the defendant was the singing teacher of the plaintiff who was just sixteen years old and the defendant assured the plaintiff that having intercourse with him will help the plaintiff to improve her voice and due to which the plaintiff agreed to have intercourse with the defendant and later after knowing the truth the plaintiff sued the defendant and the defence of Volenti non fit injuria was rejected as the consent if the plaintiff was obtained by fraud.

Exceptions to Volunti Non Fit Injuria

There are certain cases in which even after filling all the essential elements of Volenti non fit injuria the defendant can not take the defence of Volenti non fit injuria. Such cases are:

1. Rescue Cases

The cases where the plaintiff suffers the harm voluntarily to rescue someone from the injury, in that case, the defence of Volenti non fit injuria can not be used by the defendant. In the case of Haynes V Harwood (1935), 1 KB 146, the defendant bought two horses in a public area near a police station and left the horses unattended to do some other work and in the meantime due to the anger by the acts of the children’s the horses tried to harm those kids and to save the kids an on-duty police officer ran to rescue the kids and while saving the kids he suffered injuries and then he sued the defendant for damages for the injury caused to him, the court held that the defendant can not take the defence of Volenti non fit injuria as it was a rescue case.

2. Illegal Acts

Consent which was given for the acts which are prohibited by the law, in those cases the defence of Volenti non fit injuria can not be used as a defence by the defendant.

3. Negligence by the defendant

In the cases where the harmed is caused to the plaintiff because of the negligence of the defendant in such case, the defendant can not use the defence of Volenti non fit injuria to escape the liability.

Illustration: if A being a doctor of B uses an infected needle on B during an operation and due to the infected needle B suffers bad skin allergies, in that case, the harm is caused due to the negligence of A and he can not use Volenti non fit injuria as a defence.

Conclusion

Volenti non fit injuria is used by the defendants to escape liability for causing harm to another person by providing that the plaintiff has given the consent for such injury expressly or impliedly. But there are certain limitations also in which even if the plaintiff has voluntarily consented for the risks involved, the defendant cannot escape the liability. So, it is the responsibility of the court to carefully examine the facts of each case and decide whether all the requisites Essential for using Volenti non fit injuria as a defence are fulfilled by the defendant or not.

References:

• Smith v. Bakers and sons (1891) AC 325
• Hall v. Brookland (1932) All ER Rep 208
• R. V Williams (193) 1 KB 340,
• Haynes V Harwood (1935) , 1 KB 146,
• Haynes V Harwood (1935) , 1 KB 146
• Adarsh Singh Thakur, All general of law of torts, blog pleaders, https://blog-ipleaders-in.cdn.ampproject.org/v/s/blog.ipleaders.in/volenti-non-fit-injuria/amp/?amp_js_v=a6&amp_gsa=1&usqp=mq331AQFKAGwASA%3D#aoh=16011013870317&amp_ct=1601101430359&csi=1&referrer=https%3A%2F%2Fwww.google.com&amp_tf=From%20%251%24s&ampshare=https%3A%2F%2Fblog.ipleaders.in%2Fvolenti-non-fit-injuria%2F