“VOLENTI NON FIT INJURIA” & Sports: Cohesion or

Collision of Interests?

Submitted By – TUSHAR

CLASS: BALLB

DIVISION: D

PRN: 17010223114

of Symbiosis Law School, NOIDA Symbiosis International

University, PUNE

In August 2017

Under the guidance of

Dr. C J Rawandale, Director and Ms. Shambhavi Shukla

Symbiosis Law School, Noida

 CERTIFICATE

The project entitled “VOLENTI NON-FIT INJURIA” & Sports: Cohesion or

Collision of Interests? submitted to the Symbiosis Law School, NOIDA for Law
of Torts, MV Accident and Consumer Protection Laws I as part of Internal
assessment is based on my original work carried out under the guidance of
Dr. C.J. Rawandale and Ms. Shambhavi Shukla. The research work has not
been submitted elsewhere for award of any degree. The material borrowed
from other sources and incorporated in the thesis has been duly
acknowledged. I understand that I myself could be held responsible and
accountable for plagiarism, if any, detected later on.

Signature of the candidate

Date: 28th August 2017

 ACKNOWLEDGEMENTS

I have taken efforts in this project. However, it would not have been possible
without the kind support and help of many individuals and organizations. I
would like to extend my sincere thanks to all of them.

I am highly indebted to Dr. C. J. Rawandale and Ms. Shambhavi Shukla for

their guidance and constant supervision as well as for providing necessary
information regarding the project & also for their support in completing the
project.

I would like to express my gratitude towards my parents & member of

Symbiosis Law School, Noida for their kind co-operation and encouragement
which help me in completion of this project.

My thanks and appreciations also go to my colleague in developing the project

and people who have willingly helped me out with their abilities.
 INDEX

 What is “Volenti Non Fit Injuria”

 Applicability of “Volenti Non Fit Injuria”

 Relation of “Volenti Non Fit Injuria” and Sports

 Specific sports and ambit of “Volenti Non Fit Injuria”

 Cricket
 Hockey
 NASCAR
 Football

 Conclusion

 References

 Interim Submission
What is “Volenti Non Fit Injuria”?
The legal maxim “Volenti Non Fit Injuria” literally translate to “where the
sufferer is willing no injury is done”.1 This means harm suffered voluntarily
does not constitute a legal injury and is not actionable. A person cannot claim
damages when he himself have exposed him to such a scenario which poses
potential danger provided he had knowledge of the same and accompanied by
his free will. For instance, a person knows that the path ahead of him has just
been washed and is slippery and he continues to walk through it and slips and
injures himself then he cannot claim damages. This legal principle is very
essential as it protects a surgeon who amputates a limb, a boxer, a mixed
martial artist, a basketball player as long as they abide by the rules of the
game and play fairly.

Applicability of “Volenti Non Fit Injuria”

This defence suspends all liability from the defendant if the plaintiff has
consented and involved himself in the actions voluntarily provided the
defendant has avoided any negligence.2 There are three essentials of this
defence:

 Free consent: Meaning the consent should be free and fair, not
fabricated in any way or means, and the consent given is by a person
of a sound mind and senses. The consent given can both be expressed
or implied.

 Agreement: There should be an agreement of what both parties have

put forward and the agreement should be in the same sense.

1
(Ratanlal & Dhirajlal, 2016)
2
(Ratanlal & Dhirajlal, 2016)
  Full knowledge of nature and extent of risk: Both the defendant and the
plaintiff should prior to the event have the knowledge of nature and
extent of the risks involved.

Relation of “Volenti Non Fit Injuria” and Sports

For a very long time an expanding number of instances of rough acts amid
sports were recorded. Many games pose genuine threats to the players and in
addition to the onlookers. Consequently, with regards to sports events, courts
by and large offer judgements to suits which include injury to the players and
the onlookers under the tort law. Therefore, as per the tort law, if a party
owes an obligation of care towards another gathering and that obligation is
broken, the party owing the obligation is subject for any injuries, endured by
the party to whom the obligation is owed to the consequence of the breach.
The level of obligation of care relies on the circumstances. Higher the risk,
Higher the decree of care and the other way around. However, in such
circumstances the Defendants may hold any number of defences and with
regards to sports-related damage suits, the litigants have the best defence of
Volenti non fit injuria where the defendant can assert this defence telling that
the offended party was at his own hazard. Nonetheless, this rule holds a
special case where the respondents can't take the defence of volenti non fit
injuria, on specific grounds. This exemption is pertinent in both the players
and attendee’s cases. Volenti non fit injuria ensures that no unnecessary
litigations are put forward in case of injuries caused during sports provided
that the sport is being played according to the respective rules and regulations
of that sport. The players involved have only consented to those potential
injuries which may or may not occur under the ambit of the laid down rules
and regulation.
Specific Sports and the Ambit of Volenti Non Fit Injuria

Cricket

In cricket, there is an inherent danger to the players as well as the spectators

who have come to enjoy the game. For the players, there is always a risk of
getting hit by the ball which in certain cases have resulted in death of the
player. The cricket ball can also hit anyone in the crowd and cause injury.

Player’s perspective: The participants of the game not only include the two
playing teams but also the two umpires. For the players, they must wear
proper gear which is the knee pads, the helmet (for the batsman, the wicket
keeper and the slips), gloves, guards, etc. All this gear is to protect the players
from potential injury. If injury is caused and all the proper gear was used and
the game was played according to all the correct rules and regulations then
the defence of volenti non fit injuria is applicable. For instance, if the ball after
being struck by the bat hits the fielder and injury is caused to that player then
it falls under the ambit of volenti non fit injuria. Instance of what will not fall
under volenti non fit injuria, if the bowler intentionally throws the ball directly
at the face of the batman then the spirit of sport is violated and in this situation
volenti non fit injuria may not be applicable.

Spectator’s perspective: The spectators who have come to enjoy the game
have given implied consent by buying the ticket and coming to the stadium to
see the sport. If the spectator is hit by the ball after being struck by the
batsman then he or she cannot sue the batsman as it falls under volenti non
fit injuria because the consent was given and it was reasonably foreseeable
event. If the batsman hits the ball and it goes out of the stadium and hits a
pedestrian or a car then volenti non fit injuria is not applicable as there is no
consent given by the injured and the said persons rights are being violated. If
the ball hits someone within the stadium then it falls under the ambit of volenti
non fit injuria.

Related Case: Bolton v. Stone [1951] AC 850, [1951] 1 All ER 1078

In this case, the batsman hit the ball for six runs and the ball flew over the
stadium (playing ground) and hit the claimant Ms. Stone who was standing
outside her house.3

Volenti Non Fit Injuria will not be applicable in this case as the claimant Ms.
Stone have neither giver implied or expressed consent to be involved in any
danger related to the cricket game. The batsman or the committee can be
held liable and damages should be awarded to Ms. Stone, but in this case the
court held the damage caused is unforeseeable and Ms. Stone is not entitled
to any damages.

Hockey

Hockey just as almost all other sports poses an inherent risk to the players
involved in the game as well as the spectators as the hockey ball may flick
and hit someone in the crowd. The players in this game are more prone to
injuries as hockey is considered as a rough game with lots of direct
confrontations which may or may not lead to injuries depending on the
situations.

Player’s perspective: The players of this game are at a great risk of injuries
as hockey is an inherently aggressive sport and there are a lot of direct
confrontations which may lead to serious injuries. All the players have given
their free consent to sustain the foreseeable injuries suffered within the rules
of the game. The reasonable injuries sustained will be the ones suffered during
clean tackles, hit by the hockey ball, accident which may lead to collision of
two or more players. In all these instances, the injuries caused can be
defended in the court of law through the application of volenti non fit injuria
and the liability will be waived. In instances of where the rules are broken and
consent of the injury which is given is exceeded like in situation of an
intentional cheap shot to cause trouble, or a scuffle between two or more
players which may escalate, in these situations the defence of volenti non fit
injuria in not applicable.

3
(HeinOnline, 2017)
Spectator’s perspective: The spectators of the sport hockey are in a
potential danger which is posed by situations like, if the hockey ball flicks over
and hit someone in the crowd leading to injury or maybe during a struggle the
players accidently hit the crowd members siting at the front rows, in these
situations the defence of volenti non fit injuria is applicable and no liability will
be put on the defendant. There are also cases where the players gets involved
in a scuffle and it escalates into a brawl, in such situations if the spectators
get injured then the players or the committee will be held liable, as the injury
caused has exceeded the consent given, the people who have come to watch
the game have given consent to injuries which arise under the laid down rules
and regulations and nothing further.

Related Case: Agar v Canning (1965), 54 WWR 302 (Man QB)

Over the span of a hockey game, Canning hit Agar in the face with a hockey
stick, thumping him oblivious. Agar had attempted to prevent Canning from
escaping but hit Canning in the neck with his stick. Canning pivoted and hit
Agar in the face. Agar was grievously injured including a broken nose and an
almost blind eye.4

Volenti Non Fit Injuria will not be a valid defence in this case as the harm
caused exceeds the harm that could occur in an ordinary hockey match,
moreover there was clear intention on part of the player to cause the injury,
it was held that Canning had exceeded the consent that was given by Agar
while playing the sport.

NASCAR

The National Association for Stock Car Auto Racing is an extremely dangerous
sport not only for the participants but also in some cases the spectators as
well. The threat of an accident during one of these thrilling races is high. These
accidents generally result in the hospitalization of the driver or even death in
some cases.

Player’s perspective: The drivers of these high-speed cars are in continuous

danger of injury and death as any accident while the car is at such high speed

4
(HeinOnline, 2017)
can easily result in grievous injuries. The race is extremely fast paced and the
cars are driven at the highest of the speeds, the number of participants in one
race is also around forty, and as a result the tracks are cramped and one
mistake of any driver can cause a big accident which may or may not affect
other drivers. Injuries received during such an accident during the race will
fall under the ambit of volenti non fit injuria and the liability will not arise. If
the accident in the above-mentioned scenario is fabricated or planned than
that can result in the rise of the liability and volenti non fit injuria will not be
a valid defence.

Spectator’s perspective: The crowd watching the sport are also as always
in potential danger as such high-speed races have resulted in the cars flipping
over and in rare cases hit the stands where the spectators are sitting, resulting
in grievous injuries. Damages for these injuries cannot be claimed in the court
of law as the spectators have given consent to such foreseeable events which
have the potential of causing injuries. In a scenario where the car crashed and
exploded and some part of the car flew and hit a distant person who had
nothing to do with the sport then that person can claim damages from the
committee and volenti non fit injuria will not be a valid defence as consent to
injuries is not present.

Related Case (not an actual court case): 1960 Daytona Modified

Sportsman Race

The vehicular disaster at the 1960 Daytona Modified Sportsman Race holds
firm in the shaft position of biggest wrecks in NASCAR history. For reasons
unknown, 73 automobiles began on the track that day on Saturday, February
13th and it took just a single lap for 37 of them to be thumped out for the
count. Eight drivers were taken to the healing center that day, however there
were no fatalities but there were dangerous injuries.5

In the aforementioned case, the drivers can’t claim damages as they had given
their consent for injuries like these and the injuries that occurred were under
the rules and regulations, therefore volenti non fit injuria is a valid defence.

5
(996. Biggest pile-up in racing history in 1960 at Daytona, 2017)
Football

The sport of football is a team game and the teams are always in contest for
the ball meaning there are many confrontations. The sport involves attacking
and defending, evading and tackling, all these actions poses a potential danger
to the players involved in the game and there is generally a very large crowd
that comes to see the game.

Player’s perspective: The players that participate in the game always are
subjected to situations that poses potential of injury, the players tackle each
other during the game to steal the ball for their team and sometimes these
tackles result in serious injuries, the ball also hits hard as the players use their
full force while shooting the ball, this ball can cause injury to other players,
even accidents where two or more players trip into each other, in all these
instances the injury caused will be foreseeable and the players have consented
to it, therefore volenti non fit injuria will be a valid defence. In cases where
the players intentionally have caused injury to other player through means of
tackle or any other way then volenti non fit injuria will not be a valid defence,
in case where Zinedine Zidane headbutted the other player, it didn’t fell under
the ambit of volenti non fit injuria.

Spectator’s perspective: The people who have come to see the game are
in some potential danger as the ball that is used to play can hit any spectator
and that could lead to injury, while in this case it directly falls under the ambit
of volenti non fit injuria as everyone who have come to see the game have
bought a ticket, this action of buying a ticket is equivalent to giving consent,
implied consent. If the ball would have hit someone outside the stadium then
due to lack of consent volenti non fit injuria will not be applicable.

Related Case: Condon v. Basi, 15 Melb. U. L. Rev. 756 (1985-1986)

In this case, the plaintiff suffered a broken leg due to the tackling of the
opposite team, it was held in court that the force used to tackle has exceeded
the limit and that the given consent has been surpassed. Damages were
awarded to the plaintiff.6

This according to the court had breached the ordinary force used in a tackle
therefore going outside the ambit of volenti non fit injuria.

6
(HeinOnline, 2017)
Conclusion
Sports will always pose an inherent danger to the participants as well as the
people who have come to view the sport. Injuries do happen while
participating in the sports, it is up to the participants to take these injuries in
the sense of sportsman spirit. The maxim of “volenti non fit injuria” plays a
very crucial part in keeping the sports playing out smoothly, as if this maxim
was not applicable, then the players could sue each other even for the injuries
sustained during the ordinary course of the sport. This maxim allows the
sports to play out smoothly and avoids any unnecessary stoppages. Everyone
wants the game to proceed smoothly and this maxim ensures that, it upholds
the sportsman spirit of the game. The interests of the participants, depending
on the different sports are protected as the maxim relieves players from
concern of landing in the court if they cause an injury, provided the injury is
caused under laid down rules. But, there are also cases where the injury
inflictor gets his liability waived, even if the injury inflicted was intentional. No
maxim or law is perfect, the maxim of “volenti non fit injuria” also has pros
and cons and it cannot be termed as black or white in terms of upholding
interests.
References

 (2017). Retrieved from HeinOnline: https://home.heinonline.org

 Biggest pile-up in racing history in 1960 at Daytona. (2017,

January 7). Retrieved from HEADLINE SURFER:
http://headlinesurfer.com

 Ratanlal & Dhirajlal. (2016). The Law Of Torts.