Volenti Non Fit Injuria
Volenti Non Fit Injuria – When a person consents to the infliction of some harm upon himself, he has no remedy for that in tort. In case, the plaintiff voluntarily agrees to duffer some harm, he is not allowed to complain for that and his consent serves as a good defence against him. No man can enforce a right which he has voluntarily waived or abandoned. 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. 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. 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 a car coming on the track.
If a person is injured in an attempt to stop a restive horse on another’s cry for “help”, he has no right of action and he cannot be permitted to say, “I knew the horse would plunge, but I did not know how much it would plunge.” That is the position when the restive horse has caused no danger and there is no real need for help. When the need for help is there, as in rescue cases, the position is different.
For the defence of consent to be available, the act causing the harm must not go beyond the limit of what has been consented. A player in a game of hockey has no right of action if he is hit while the game is being lawfully played. But if there is a deliberate injury caused by another player, the defence of volenti cannot be pleaded. Similarly, if a surgeon negligently performs operation, he cannot avoid the liability by pleading the defence an of consent.
In Hall v. Brooklands Auto Racing Club, the plaintiff was a spectator at a motor car race being held at Brooklands on a track owned by the defendant company. During the race, there was a collision between two cars, one of which was thrown among the spectators, thereby injuring the plaintiff. It was held that the plaintiff impliedly took the risk of such injury, the danger being inherent in the sport which any spectator could foresee, the defendant was not liable.
In Padmavati v. Dugganaika, while the driver was taking the jeep for filling petrol in the tank, two strangers took lift in the jeep. Suddenly one of the bolts fixing the right front wheel to the axle gave way toppling the jeep. The two strangers were thrown out and sustained injuries, and one of them died as a consequence of the same.
It was held that neither the driver nor his master could be made liable, firstly, because it was a case of sheer accident and, secondly, the strangers had voluntarily got into the jeep and as such, the principle of volenti non fit injuria was applicable to this case.
In Wooldrige v. Sumner, the plaintiff, who was a photographer, was taking photographs at a horse show while he was standing at the boundary of the arena. One of the horses, belonging to the defendant, rounded the bend too fast. As the horse galloped furiously, the plaintiff was frightened and he fell into the horses’ course and there he was seriously injured by the galloping horse. The horse in question won the competition.
It was held that since the defendants had taken due care, they were not liable. The duty of the defendants was the duty of care rather than the duty of skill. The spectator in such a game or competition takes the risk of such damage even though there may have been error of judgment or lapse of skill. Diplock L.J. explained the position as follows:
“…..the duty which he (the defendant) owes is a duty of care, not a duty of skill. Save where a consensual relationship exists between a plaintiff and a defendant, by which the defendant impliedly warrants his skill, a man owes no duty to his neighbour to exercise any special skill beyond that which an ordinary reasonable man would acquire before indulging in the activity in which he is engaged at the relevant time. It may well be that a participant in a game or competition would be guilty of negligence to a spectator if he took part in it when he knew or ought to have known that his lack of skill was such that even if he exerted it to the utmost, he was likely to cause injury to a spectator watching him. No question of this arises in the present case….. 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 purpose of the game or competition notwithstanding that such act may
involve an error of judgment or a lapse of skill, unless the participant’s conduct is such as to evince a reckless disregard of the spectator’s safety.”
The defence of volenti non fit injuria was successfully pleaded in Thomas v, Quartermaine. There, the plaintiff, an employee in the defendant’s brewery, was trying to remove a lid from a boiling vat. The lid was stuck and by the plaintiff’s extra pull to it, it came off suddenly and the plaintiff fell back into the cooling vat which contained scalding liquid. The plaintiff was severely injured. The majority of the Court of Appeal held that the defendant was not liable because the danger was visible and the plaintiff appreciated and voluntarily encountered the same.
The consent must be free – Volenti Non Fit Injuria
For the defence to be available, it is necessary to show that the plaintiff’s consent to the act done by the defendant was free. If the consent of the plaintiff has been obtained by fraud or under compulsion or under some mistaken impression, such consent does not serve as a good defence. Moreover, the act done by the defendant must be the same for which the consent is given. Thus, if you invite some person to your house, you cannot sue him for trespass when he enters your premises.
But, if the visitor goes to a place for which no consent is given, he will be liable for trespass. For example, if a guest is requested to sit in the drawing-room and without any authority or justification, he enters the bedroom, he would be liable for trespass and he cannot take the defence of your consent to his visit to your house. Similarly, a postman has the implied consent of the resident of a building to go up to a particular place to deliver the dak. For his entry up to that particular point, he cannot be made liable. If the postman goes beyond that limit and enters the rooms of the house, he would be liable for the trespass.
Consent obtained by fraud
Consent obtained by fraud is not real and that does not serve as a good defence. In the Irish case of Hegarty V. Shine, it has, however, been held that mere concealment of facts may not be such a fraud as to vitiate consent. There, the plaintiff’s paramour, had infected her with venereal disease and she, therefore, brought an action for assault. The action failed partly on the ground that mere non-disclosure of the disease by the plaintiff was not such a fraud as to vitiate consent, and partly on the ground ex turpi causa non oritur actio. (It means that from an immoral cause, no action arises). In some criminal cases, it has been held that mere submission to an intercourse does not imply consent, if the submission had been procured by fraud which induced mistake in the mind of the victim as to the real nature of the act done.
Consent obtained under compulsion
Consent given under circumstances when the person does not have freedom of choice is not the proper consent. A person may be compelled by some situation to knowingly undertake some risky work which, if he had a free choice, he would not have undertaken. That situation generally arises in master-servant relationship.
The servant may sometimes be faced with the situation of either accepting the risky work or losing the job. If he agrees to the first alternative, it does not necessarily imply that he has agreed to suffer the consequences of the risky job which he has undertaken.
Thus, “a man cannot be said to be truly willing unless he is in a position to choose freely, and freedom of choice predicates, 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 the absence of any feeling of constraint so that nothing shall interfere with the freedom of his will” Thus, there is no volenti non fit injuria, when a servant is compelled to do some work in spite of his protests.
But, if a workman adopts a risky method of work, not because of any compulsion of his employer but of his own free will, he can be met with the defence of volenti non fit injuria.
More knowledge does not imply assent
For the maxim volenti non fit injuria to apply, two points have to be proved :
(i) The plaintiff knew that the risk is there.
(ii) 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 is volenti non fit injuria. Merely because the plaintiff knows of the harm does not imply that he assents to suffer it.
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