Friday, 3 June 2022

Volenti Non-Fit Injuria

 Volenti Non-Fit Injuria 

By Shweta Nair


‘What is consented to is not an injury or a wrong.’ 

If a person suffers any harm voluntarily then that will not amount to legal injury and therefore it is not actionable. A person cannot complain of any injury or damage resulting from an act to which he has expressly or impliedly consented to. 

If an act is done with the consent of the plaintiff, or if the plaintiff has freely or voluntarily and with full knowledge of the nature and extent of risk agreed to an act, he cannot afterwards complain against that act. 

Express Consent- Consent is said to be expressed where a person submits or agrees to a particular act. 

Example: If a person goes to a surgeon and agrees to undergo surgery operation under him. Here the person has given his express consent to the surgeon. 

Implied Consent- Consent is said to be implied where the injury complained of was incidental to the thing consented to. 

Example: If you agree to play a game of football, you also agree that you are likely to suffer an injury from playing and you are well-aware of this fact. Here, you cannot maintain an action. If there is a foul play and the opponent wilfully causes injury to you then action will be maintained. 

*Not applicable for Physicians. 

Hall v. Brookland Auto Racing Club

The plaintiff was a spectator at a motor car race which was being held at Brookland on a track owned by the defendant company. During the race, there was a collusion between two cars due to which a racing car shot over the railing and killed two spectators and causing injury to the plaintiff. It was for the first time that such an accident had taken place. The court held that there was no diligence and that such type of danger to the spectator is inherent in the sport and therefore, the defendant was not held liable. 

Exceptions to the Maxim

  1. Unlawful act- no consent can legalize an unlawful act. 

  2. Breach of statutory duty- If any harm or injury is caused due to breach of statutory duty then the defence of this maxim cannot be pleaded. 

Pearson v. Coleman Brother

A little girl who visiting a circus was mauled by the lion when she went near lion’s cage. The cage was fenced with but the distance between the two bars was such that it was sufficient enough for the lion to put out his paws. The defendant was held liable for breach of statutory duty. 

  1. Rescue Cases- When a person’s life is in danger, another person voluntarily undertakes to save such a person from death or injury irrespective of the fact whether he owes a duty of care or not. The endangered person being his family member or a stranger, the defence of volenti non-fit injuria will not be applicable. 

Haynes v. Harwood 

In this case, the defendant’s servant left a two-horse van unattended in a public street. A boy threw a stone at the horses due to which they bolted causing grave danger to woman and children on the road. 

A police constable who was on duty in the nearby police station, on seeing that it is dangerous to the woman and children on the street voluntarily to avoid himself and manage to stop the horses but while doing so, he suffered some personal serious injuries. It being a rescue case, the defence of volenti non-fit injuria was not accepted and the defendant were held liable. 

  1. Negligence- In cases of negligence, the defence of volenti non-fit injuria is generally not allowed. 

Dann v. Hamilton 

The plaintiff knowing that the driver of the motor car was under the influence of drinks and consequently the chances of accident taking place was thereby increased yet chose to travel by that car even though there was no compulsion or necessity. The car met with an accident due to the drunkenness of the driver in which the plaintiff suffered injuries and the driver was killed. 

In an action by the plaintiff against the personal representative of the deceased driver, the defendant took up the defence of volenti non-fit injuria but the court held that in extreme cases, this maxim does not apply to the tort of negligence and that the plaintiff was entitled to recover damages. 

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