Author: PRATYUSH PRAKHAR, BA.LL.B.(Hons), ICFAI University, Dehradun
*Author has written this article while pursuing training program on article writing by indianlegalsolution.com
In tort law, if a person does a wrongful act that causes harm to another person, He is held accountable and must pay damages or provide some other form of compensation to the victim, as determined by the Court, but on the same foot defendant also has certain kind of defences by taking which he can avoid his liability. One such defence is Volenti Non fit Injuria also known as the defence of consent.
MEANING OF MAXIM
Volenti non fit injuria’ Latin: ‘To the consenting, no injury is done’ is a common law doctrine which clearly states that If someone willingly puts himself in a position where harm may occur, knowing that a certain amount of harm may occur, he cannot pursue a tort claim against the opposing party. ‘The theory only relevant to the risk that a reasonable person could have imagined was there as a result of his or her actions’. Voluntary harm does not establish a legal injury and is therefore not actionable. A right that has been willingly relinquished or abandoned cannot be enforced.
Illustration when a spectator of a Football match gets hit by the ball at the stadium without any element of carelessness or malice on the part of the player or the defendant, in that case, the plaintiff has no protection under tort law as he impliedly consented for such risk at the time of purchasing the tickets. So, in this case, the defendant can take the defence of volenti non fit injuria and avoid the liability.
Essentials of volenti non fit injuria
- The plaintiff should have had the full knowledge of the risks involved.
When the plaintiff is aware that he will get injured or suffer losses by the act done by the defendant and, despite this, gives his consent to suffer the injury, the defendant will not be held accountable for such an act. However, simply being aware of such a risk is insufficient to apply this maxim. However, mere knowledge of such a risk is insufficient for the application of this defence; the principle of scienti non-fit injuria is recognised, which means that mere knowledge is only a partial defence and does not amount to consent to the risk. 
- The plaintiff should have freely agreed to take the risk.
Whatever the consent is given by the party the consent must be free if the consent is given under compulsion the defendant cannot claim the defence of volenti non fit injuria.
Woolridge v. Summer 1963
The plaintiff, a photographer, was photographing a horse show while standing near the arena’s boundary. One of the defendant’s horses went around the bend too fast. The plaintiff was frightened as the horse galloped furiously, and he fell into the path of the horse, where he was gravely injured by the rushing horse. The horse in the case won the competition.
“It was held that the defendants had taken due care, they were not liable. The defendants owed a responsibility of care rather than a duty of skill”.
Lakshmi Rajan v. Malar hospital 1998
The plaintiff was a woman in her forties She agreed to lump removed from her breast surgically. However, her uterus was removed by the hospital for no obvious cause.
It was held that the hospital was accountable for the failure in service since removing her uterus went beyond what she had consented to (wrongful misconduct).
Consent meaning and types
Consent is the prime element for this specific doctrine to be available as a tort defence. In fact, many times, the doctrine of volenti non fit injuria is referred to as the ‘Consent defence’. You cannot sue someone for trespassing if you invite them to your residence. It is for the simple fact that you have given your consent. You can’t sue for the enforcement of a right you’ve freely given up or abandoned. Also, the defendant’s act must be the same as the act for which consent has been granted. If a person is unable to give his consent due to insanity or is a minor, the consent of his parent or guardian suffices.
Consent can be of two types
- Express consent
Express consent is the type of consent that is not implied but is clearly stated. The consent can be given orally or in written form.
Consent is given to the doctor- Before performing an operation, the doctor takes the consent of the family members of the patient. This means after taking that consent the doctor performs the operation and if the patient suffers from any loss while performing the operation the doctor is not responsible for that because relatives had given the consent to perform the operation and that consent is known as express consent.
Implied consent is a contentious type of consent that is inferred from a person’s actions and the facts and circumstances of a specific situation rather than expressly granted by a person. It can even be concluded from a person’s silence or inactivity in some cases. It is based on the assumption that one’s cooperation is seen as permission.
By buying the tickets for cricket or football match we impliedly give our consent for foreseeable accidents that may occur.
- Hall v. Brooklands Auto Racing Club 1932
Plaintiff was a spectator at a motor racing event held at Brooklands on a defendant-owned track. During the race, an accident occurred between two automobiles, one of which was tossed into the crowd, injuring the plaintiff.
It was held that the plaintiff impliedly took the risk of such injury, the damages were inherent in the spot which any spectator can foresee, thus the defendant was not liable.
- Padmavati v. Dugganaika 1975
While the driver was taking petrol at the petrol pump, two strangers took a lift in the jeep. Suddenly, the front wheel failed and the Jeep became uncontrolled, both the strangers were thrown away, one of them instantly died and the other was injured. Here plaintiff was not liable because strangers voluntarily took the lift.
Consent not for an illegal act
- No amount of consent can make an illegal or illegal conduct legal.
- No person can give consent to another person to commit a crime.
Fighting with a naked fist – if two persons are fighting with their naked fist and both have given the free consent. If anyone person got injured and files a suit against the other person then the defendant cannot take the defence of Volenti non fit injuria because it’s an illegal act.
Duel with a sharp sword- Duel is a legal game but the sword used in the game should not be sharp. If they use a sharp sword and anybody got injured and files a case against him the defendant cannot take the defence of free consent.
Consent obtained by fraud
Consent obtained by fraud is not considered proper consent.
In the Irish case of Hegarty v. Shine However, it has been held that merely concealing facts may not be enough to void consent. “A man cannot be said to be truly willing unless he is in a position to choose freely, and freedom of choice presumes not only full knowledge of the circumstances on which the exercise of choice is conditional, so that he may be able to choose wisely but also the absence of any sense of constraint so that nothing interferes with the freedom of his will.” When a servant is forced to do work against his protest, there is no volenti non fit injuria. However, if a worker chooses a dangerous method of work out of his own free will rather than because his employer forced him to, he may be able to claim the defence of volenti non fit injuria.
Consent obtained under compulsion
Consent is not valid when it is provided in situations where the person does not have the freedom of choice and is forced to do so. There may be a situation where the person is knowingly compelled to undertake some risky work that, if he had free choice, he would not have undertaken. A master-servant relationship is a common example of this.
Bowater v. Rowley Regis Corporation
The defendant’s foreman asked the plaintiff, a cart driver, to drive a horse that was known to both parties to be prone to bolting. The plaintiff objected at first but eventually agreed to do as he was told. The plaintiff was injured as a result of the horse bolting. The maxim of volenti non fit injuria was found to be inapplicable in this case, and the plaintiff was entitled to damages.
Mere knowledge does not imply assent:
The mere fact that you are aware of the risk does not indicate that you agree to take it. The following cases will help to clarify this.
Smith v. Baker & sons
The plaintiff was a defendant’s employee, and the construction site where he worked had a crane that carried boulders over their heads. The plaintiff had also expressed her dissatisfaction with it to the defendant. The plaintiff was hurt one day as a result of these boulders falling on him, and he filed a lawsuit against the defendant for damages. The plaintiff had consented to the job’s danger but not to the defendant’s lack of care, thus the defendant was held accountable and had to pay damages to the plaintiff.
Negligence of the defendant
In order for the defence to be applicable, the act performed must be the same as the one for which consent was provided.
Illustration, if I am hurt while playing hockey in a legitimate manner, I am unable to seek compensation from any other participant because I am believed to have accepted the circumstances of the game I have gone to play. I can surely hold another player accountable if he hits me with a stick, and he won’t be able to claim volenti non fit injuria because I never consented to an injury being produced in that manner.
When the plaintiff agrees to take some risk, the defendant is presumed not to be negligent.
Illustration, if I consent to a surgical procedure, I have no legal protection if the procedure is unsuccessful. However, if the operation fails due to the surgeon’s negligence, I may pursue legal action against him. It was not his negligence that I consented to.
Slater v. Clay Cross Co. Ltd.
The plaintiff was struck by a train in the defendant railway company’s tunnel. The railway corporation had given all of its train drivers instructions to blew the whistle at the tunnel’s entry and to lower the train’s speed, but the driver disobeyed these directions and carelessly drove the train within the tunnel, injuring the plaintiff.
The defendant raised the defence of volenti non fit injuria, but the Court ruled that this defence could not be used since, while the plaintiff took the risk of walking within the tunnel, the risk was increased by the driver’s negligence. As a result, if a plaintiff agrees to accept a risk, there is a presumption that the respondent is not negligent.
Exceptions to the application of the principle of volenti non fit injuria include “rescue cases.” The defence of volenti non fit injuria cannot be used against a plaintiff who voluntarily takes a risk to save someone from an urgent danger caused by the defendant’s wrongful act.
Haynes vs. Harwood
A two-horse van was left unattended in the street by the defendant’s servant. A group of children were playing nearby. A child from one of them thrown a stone at the horse, which caused the animal to bolt and run around wildly. This put women and children living on the street in the area at risk. When a police officer observed all of this, he dashed into the fray to put an end to the danger. He succeeded, although he was seriously damaged in the process. The court held the defendant liable because the defence of volenti non fit injuria did not apply in a rescue case.
Baker vs. T.E. Hopkins & son
The well was filled with the noxious gases of the petrol-driven pump in this case due to the defendant’s fault. Those gases were about to kill two of his workers. Dr Baker was summoned to save them, but he was warned of the dangers involved. Even after that, he dove into the well, fully aware of the danger. He has driven out of there soon after, however, he died on the way to the hospital. Dr. Baker’s widow filed a claim against the workman’s employer. Because it was a rescue case, the defendant was found to be accountable for the compensation. The plaintiff was liable for compensation even though he freely consented to bear the risk.
In tort law, the maxim volenti non fit injuria has taken on the role of a good defence. It assists the defendant in avoiding accountability for the act committed by him because the other person agreed to the act that caused his or her harm.
The maxim, first and foremost, assists the defendant in avoiding liability for intentional acts that would otherwise be tortious. Second, when consent is given to run the risk of some harm that would otherwise be actionable, the doctrine of volenti non fit injuria applies. When the defence of volenti non fit injuria applies, it functions as a complete defence, absolving the defendant of all obligation because the claimant voluntarily agreed to risk the harm that could have been caused during or as a result of the action.
Only when all the maxim’s essentials are strictly present, that the plaintiff should have full knowledge of the threat involved and he or she should have willingly agreed to run the risk involved, does the maxim come into play as a defence? The implications of knowing about the risk and giving consent without being forced are highly specific and specified.
Conclusively, the defence of volenti non fit injuria is one of limited application in tort law. At times, the defendant’s carelessness may prevent the use of the defence of this maxim. When the maxim is used, the defendant is able to totally avoid liability, and so it is a good defence in tort.
  2 QB 43
 III (1998) CPJ 586(Tamil Nadu SCDRC).
 (1932) All E.R. 221: (1932) All E.R. Rep. 208.
 [1975 ACJ 222]
 (1935) 1. K.B. 146.
 (1944) K.B. 476
 (1891) AC 325
 1956 2 QB 264
 (1935), 1 KB 146
 (1959) 1 W.L.R. 966: (1959) 3 All E.R. 255.