VOLENTI NON FIT INJURIA AND TORTIOUS LIABILITY

Author(s): S. P. Singh
Source: Journal of the Indian Law Institute, Vol. 17, No. 1 (January-March 1975), pp. 90-
102
Published by: Indian Law Institute
Stable URL: https://www.jstor.org/stable/43952935
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 VOLENTI NON FIT INJURIA
AND TORTIOUS LIABILITY

AN ACTION in tort is usually a claim for damages (i.e., pecuni

tion) in respect of an injury suffered by the plaintiff a's a result o
of his legally protected interest. To be successful in this actio
has to prove the necessary ingredients of the particular tort or
he relies.1 But even after proving these ingredients, a plaintiff
if the defendant is able to prove the defence of the maxim vo
injuria , i.e., where the plaintiff has consented to the breach o
defendant towards him. For example, A is duty bound not
A does so, B is entitled to recover. But it is possible for B,
agree to being boxed by A. In this case B is not entitled to recover
damages. It is this non-liability of A which been summarised in the maxim
volenti non fit injuria which, if literally translated, means voluntarily suffered
injury is not fit for action. In other words, no breach of a legal right is
committed against one who is a willing party, or, harm suffered voluntarily
does not constitute an injury which is actionable.
The sense conveyed in this ancient Latin maxim dates back to the days
of Aristotle and was used in defence of situations involving free citizens
who had sold themselves into slavery. It was recognised in the works of
Roman jurists and in the Canon laws. It has been used in the English
common law since 1250 A.D. and by 1305 was worded exactly as it stands
now.2
Application of the maxim 'volenti non fit injuria'
The maxim volenti non fit injuria is based on the principles of justice
and good conscience because a man cannot complain of harm to which he
has consented to with his full knowledge and free will. The maxim comes
into play in daily life. It has double application.
In the first place it applies to intentional acts which would otherwise
be tortious. The best illustration on this point is furnished by llott v.
Wilkes .3 The defendant had placed spring guns in a wood on his ground
for the protection of the game. The plaintiff, with full knowledge that there
were spring guns somewhere in the wood, trespassed on the land of the
defendant and was injured. He sued the defendant on the ground that the
defendant had committed a tort against him by exceeding his right of
private defence. It was held by the court that although the defendant had
exceeded his right of private defence and was, therefore, a wrongdoer, yet

1. For a detailed study of the ingredients of torts, see, S. P. Singh, The Meaning
and Definition of Tort, II Andhra Weekly Reporter 44 (1972).
2. See, Winfield on Tort 740 (8th ed., 1967).
3. (1820) 3 B. & D Aid. 304.

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1975] VOLENTI NON FIT INJURIA 91

the defendant was not liable, for, the plai

"he having wilfully courted the danger h
maxim volenti non fit injuria.
But the case would be different where a
knowledge of the existence of the guns. In
will be inapplicable. This was laid down
The defendant, after theft of flowers f
gun in the garden for future protection. O
a pea-hen belonging to the plaintiff had es
the defendant's garden. The plaintiff, a bo
fowl and having no knowledge of the ex
garden wall, and was injured upon coming
court held that the defendant was liable
injuries to the plaintiff on the ground that
ledge of the danger, the maxim volenti non
The maxim volenti non fit injuria applies
consents to run the risk of harm which
actionable.
As has been stated above, the plaintiff, as a primary rule, must know
the nature and extent of the risk attendant with the act or work. So it is only
after such knowledge that the plaintiff must give his consent to run the risk
of harm. Knowledge of risk, therefore, precedes consent and if knowledge of
risk is not there, consent to a risk will not be deemed to have been given by
the plaintiff. In the same way, if the plaintiff has knowledge of risk but
he has not given his consent to take that risk, volenti non fit injuria will be
inapplicable. Before we discuss in detail this important point, i.e., "where
one consents to run the risk of harm" or when the plaintiff is not deemed
to have given his consent in spite of the fact that he had knowledge of risk
it is necessary to state the limitations on consent. '
Free consent

The plaintiff must give his free consent to run the risk of harm. Free con-
sent implies that it must be voluntary and with free will. It has been stated :

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
conditioned, so that he may be able to choose wisely, but the
absence from his mind of any feeling of constraint so that nothing
shall interfere with the freedom of his will.®

There may be economic or other pressures upon a workman which

4. (1828) 4 Bing. 628.

5. Per Scott, L. J., in Bowater v. Rowley Regis Corporation (1944) K. B. 476 at 479; '
see also, Imperial Chemical Industries Ltd., v. Shatwell (1965) A. C. 656 at 680-81. '

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92 JOURNAL OF THÈ IÑDIAN LA W INSTITUTE [Vol. 17:1

will make it unjust for an employer to say that he ran the risk w
open, being fully aware of the danger he incurred.6 In the
some such relationship as employer and workman between the
will, no doubt, be easier to establish the necessary freedom of co
if such consent is absent, the defence of volenti non fit injuria c
vail. Likewise, consent given by the plaintiff under undue influenc
fraud, misrepresentation, mistake , etc., will not be treated as fre
It may also be pointed out that in case the consent is free, there a
limitations on it.

Consent to illegal act

It is a general principle of criminal law that the consent of th
affords no defence to the accused charged with a criminal offenc
"no person can license another to commit a crime' '7 But then th
arises whether there are cases in which the defence of volenti non
is excluded in the law of torts because of illegality of the act asse
Winfield states :

Certainly it cannot be true that the maxim is excluded wheneve

act constitutes a crime as well as a tort, for every assault is crim
and so are some libels, and yet it is possible, by assent, to neg
tortious liability for many kinds of assaults and libel.8

He was, however, of the opinion that "whenever the act is con

public policy, an admittedly vague conception, volenti non fit inj
applicable".9 It is not feasible to lay down any definite test, but i
stated as a general rule that the act to which consent is given mu
against public policy, e.g., fighting with bare fist, a kicking match
with sharp swords.
Consent to breach of statutory duty
This generally concerns employee versus employer. In several
under the Factories Act, many duties have been imposed upon the
If the employer commits a breach of statutory duty, he is liable
of the consent of the employee. Thus, consent to a breach of statu
is not acknowledged. The reason of the rule has been stated by
in Baddeley v. Earl Granville 10 that the law will not permit an em
make it a term of his servant's contract that the latter shall conn
breach of his masters' statutory obligations which is not only int
his benefit but also for that of others.11 It, therefore, seems
6. See, Imperial Chemical Industries Ltd., v. Shatwell , supra note 5 at 681
Williams v. Port of Liverpool S. Co. Ltd. (1956) 1 W. L. R. 551.
7. R. v. Donovan , (1934) 2 K. B. 498 at 507, per bwilt, J.
8. Supra note 2 at /4/.
9. Ibid.
10. (1887) 19 Q. B. D. 423.
11. Id. at 426-27.

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 1975] VOLENTI NON FIT INJURIA 93

defence of volenti non fit injuria is not

is a breach of statutory duty, otherwise k
Consent to run the risk of harm

Subject to the limitations on consent as pointed out above, if the plaintiff

gives his consent to run the risk of harm, the maxim volenti non fit injuria will
apply and the defendant will not be liable for damages. Now the consent to
run the risk of harm may be express or implied. Where the consent is in
express terms, there is no difficulty. For example, if I give my consent to
a surgeon to operate upon my leg, I cannot maintain an action for the tort of
battery ; or, if I give my consent to a person to publish a defamatory state-
ment against me, I cannot maintain an action for the tort of defamation ; or,
if I give my consent to a person to walk over on my land, I cannot maintain
an action for trespass. In all these examples the maxim volenti non fit injuria
is applicable and I cannot maintain an action since I have given my express
consent with full knowledge of the risk.
However, the real difficulty arises in those cases where the person had
the knowledge of risk but it is not clear whether he had given his consent to
run the risk of harm. Since the maxim is volenti non fit injuria and not
scienti non fit injuria , it follows that knowledge of risk does not always
amount to consent. The question, therefore, arises : is there any principle
by which the implied consent of a person can be inferred ? An important
case on this point is that of Thomas v. Quart er maine1* where Bowen, L.J.,
refused to identify, as a matter of course, knowledge of a risk with the
acceptance of it.
The plaintiff was a worker in the defendant's brewery. He tugged at a
board in the cooling room where he was employed with a view to removing
it from under a boiling vat to which the board served as a lid. The board
stuck fast and then came off suddenly so that he fell back into a cooling vat
which was sunk in the floor about three feet away from the boiling vat. The
cooling vat had a rim raised sixteen inches above the passage but it was not
fenced or railed in. It contained scalding liquid and the plaintiff, who fell
down into it, was severely injured. It was found as a matter of fact that the
plaintiff had full knowledge of the danger from the rim of the cooling vat
not being fenced, and that too for many months.
The majority of the judges of the Court of Appeal held that the action
was not maintainable. Bowen, L.J., who was of the majority view said :

It is no doubt true that the knowledge on the part of the injured

12. In such cases no defence is open to an employer except that of contributory

negligencc. See, Simpson v. Standard Telephones and Cables Lid (1940) 1 K.B. 342. Since
the Law Reform (Contributory Negligence) Act, 1945, the defendant need not necessarily go
to the extent of proving that the plaintiff's negligence was the substantive and decisive
cause of his own inj ary as a fair result is now achieved in such cases by apportionment.
13. 18 Q. B. D. 685 (1887).

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94 JOURNAL OF THE INDIAN LA W INSTITUTE [Vol. 17:1

person which will prevent him from alleging negligenc

occupier must be a knowledge under such circumst
necessarily to the conclusion that the whole risk wa
incurred. The maxim, be it observed, is not "scienti no
but "volenti", it is plain that mere knowledge may not be a
conclusive defence. There may ba a perception of the existence of
the danger without comprehension of the risk : as where the work-
man is of imperfect intelligence, or, though he knows the danger,
remains imperfectly informed as to its nature and extent. There
may again be concurrent facts which justify the inquiry whether the
risk though known was really encountered voluntarily.14

After stating the principle as to when knowledge may amount to con-

sent, Bowen, L.J., remarked':

Knowledge, as we have seen, is not conclusive where it is consistent

with the facts that, from its imperfect character or otherwise,
the entire risk, though in one sense known, was not voluntarily
encountered, but here, on the plain facts of the case, knowledge on
the plaintiff's part can mean only one thing. For many months
the plaintiff, a man of full intelligence, had seen this vat - known
all about it - appreciated its danger - elected to continue working
near it. It seems to me that the legal language has no meaning
unless it were held that knowledge such as this amounts to a vol-
untary encountering the risk.15

The general principle as stated by Bowen, L. J., that mere perception

of the existence of danger does not amount to consent unless there is com-
prehension of the risk was never criticised but the actual decision of the
court was subject to criticism16 and was not accepted by the House of
Lords in another important and leading case of Smith v. Baker & Sons.17
The facts briefly were that Smith was in the employ of Baker & Sons. He
worked in a rock-cutting near aerane which often jibbed heavy stones over
his head without warning while he was drilling the rock face in the cutting.
Both he and his employers were aware that there was a risk of the stones
falling and that no warning was given to him of the moments during which
any particular jibbing commenced. A stone from the crane fell upon him
and injured him.
It was argued on behalf of the defendant that the principles enunciated
by Bowen, L.J., in the case of volenti non fit injuria should be extended

14. Id. at 696.

15. Id. at 699.
16. See, Pollock on Torts 118-20 (15th ed., 1951). See also Salmond on Torts 47-
(13th ed., 1961).
17. (1891) A. C. 325.

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1975] VOLENTI NON FIT INJURIA 95

to this case and that since this case is s

should not be held liable. Lord Herschel
Where a person undertakes to do
dangerous, notwithstanding that rea
render it as little dangerous as poss
subjects himself to the risks inevitabl
if he suffers, be permitted to compla
to him, even though the cause from w
others a right of action. 17a
But he added :
Where... a risk to the employed, which may or may not result
in injury, has been created or enhanced by the negligence of the
employer, does the mere continuance in service, with knowledge of
the risk, preclude the employed, if he suffers from such negligence,
from recovering in respect of his employer's breach of duty ? I
cannot assent to the proposition that the maxim, "volenti non fit
injuria," applies to such a case, and that the employer can invoke its
aid to protect him from liability for his wrong. 18
Then his Lordship referred to the case of Thomas v. Quariermaine
and disapproved of its decision by stating that :
If the effect of the judgment (i.e., Thomas cas e) be that the mere
fact that the plaintiff after he knew the condition of the premises
continued to work and did not quit his employment, afforded his
employer an answer to the action even though a breach of duty on
his parts was made out, I am unable for the reasons I have given,
to concur in the decision. 19
The case of Smith v. Baker & Sons , thus, more precisely laid down
the rule of implied consent that where the plaintiff undertakes to do a work
which is intrinsically dangerous, he consents to the risk of harm inevitably
accompanying it although reasonable care has not been taken by the defen-
dant to render it as little dangerous as possible. But where the work is
dangerous and the risk to the plaintiff, which may or may not result in an
injury, has been created or enhanced by the negligence of the defendant,
the plaintiff will not be deemed to have given his consent.
The same principles have been followed in India.20
17a. Id. at 360.
18. Id. at 362.
19. Id. at 367.
20. See, Secretary of State v. Rukhminibai , A. I. R. 1937 Nag. 354 at 361 whe
Niyogi, J., while considering the maxim volenti non fit injuria , observed:
It may be conceded that the Courts in India are, in the absence of any express
provision of law applicable to any particular case, empowered to invoke the aid
of Common law on considerations of justice, equity and good conscience, but
this can only refer to the Common law which is actually enforced by the Courts
in England.
See also similar English cases: Yarmouth v. France , (1887) 19 Q. B. D. 647; Bowater
v. Ron ley Regis Corporation , supra note 5.

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 96 JOURNAL OF THE INDIAN LA W INSTITUTE [Vol. 17:1

An important case worth mentioning in this area is that

Industries Ltd. v. Alamelu AmmaL21
The facts in brief were that the defendant used to break pieces of cast
iron into smaller pieces by dropping a heavy weight from a height of thirty-
five feet with the inevitable result that pieces of iron flew away to distances
of about twelve to fifteen feet. They had put up a screen at a distance of
about fifteen feet which was obviously so inadequate that pieces of iron were
habitully thrown out of the pit. They had issued warning to persons near-
by, but they did not issue warning to workmen at a distance, to go on
working at the risk of being hit. The plaintiff, who was standing at about
eighty feet, was hit by a piece and was fatally injured. It was found that
the defendants did not take sufficient care and, therefore, they were held
guilty of negligence. The maxim volenti non fit injuria pleaded on behalf
of the defendant was held to be inapplicable. It was observed by the court
that the defendant can successfully plead the maxim only when he proves
that the person injured knew of the danger, appreciated it, and voluntarily
took the risk ; that the defendant had some knowledge of the danger was
not sufficient ; and that a man could not be said to have voluntarily under-
taken a risk the extent of which he did not appreciate.22
It may be pointed out here that it is not only in cases of employer and
workmen that the defence of volenti non fit injuria is limited by the rule that*
sciens is not volens , but also in other cases.23 The case of Dann v.
Hamilton 24 is an important illustration on this point.
Dann was the passenger in the car of Hamilton. While entering the
car she knew that Hamilton was under the influence of alcohol. Knowing
his condition she could have travelled by an omnibus or taxi, but chose
to remain in the car. There was an accident due to the negligence of
Hamilton which resulted in injuries to Dann. The question in this case was,
whether the maxim volenti non fit injuria was applicable.
Asquith, J., held that the maxim did not apply and that she could
recover damages on the ground that :
[T]he plaintiff, by embarking in the car, or re-entering it, with
knowledge that through drink the driver had materially reduced his
capacity for driving safely, did not impliedly consent to, or absolve
the driver from liability for any subsequent negligence on his part
whereby the plainiff might suffer harm.25
He further pointed out :
There may be cases in which the drunkenness of the driver at the
material time is so extreme and so glaring that to accept a lift from
21. A. 1. R. 1923 Mad. 565. ^
22. Id. at 566.

23. See, Letang v . Ottawa Electric Railway, (1926) A.C. 725; Bowater v. Row
Regi$ Corporation , supra note 5; Baker '.T. E. Hopkins & Sons Ltd., (1959) 1 W
966 (C. A.).
24. (1939) 1 K. B. 509.
25. Id. at 518.

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 1975] VOLENTI NON FIT INJURIA 97

him is like engaging in an intrin

occupation, intermeddling with an
the edge of an unfenced cliff. It is
in such a case the maxim ''volenti
in the present case I find as a fact
toxication fell short of this degre
defence fails, and the claim succeed

In the above case it should be no

also guilty of negligence in knowing
car, yet the court did not conside
this decision on the ground that since
negligence, the judgment should h
This point was, however, subsequent
Quarterly Review . He stated that th
not raised (in Dann v. Hamilton )
defendant's counsel to ask for lea
Referring to this aspect in Dann v.
quent and important case, Slater v.
In so far as he (Asquith, J.,) decide
not apply, I think the decision w
suggested that the plea of contribu
available, I agree with him.30

Thus, it appears that if the plea of

raised in Dann v. Hamilton , perhaps
not have been considered even. This
of Dawrant v. Nutt 31 where t
husband's motor-cycle combinatio
was partly caused by the defendant
the collision and the plaintiff knew t
motor-cycle combination was out of
liable. Although Dann's case was ci

26. Ibid .
27. See A. L. Goodhart, Contributory Negligence and Volenti non fit injuria
55 L. Q. R. 184 (1939). He had stated:
The doctrine of contributory negligence is not limited to those cases where the
plaintiff actively contributes to the accident by his own negligent act: it is
equally applicable where the plaintiff fails to take reasonable steps to protect
himself from the consequences of the defendant's negligence. In this sense the
plaintiff in the present case, although doing nothing to cause the accident, did
contribute to her own injury by placing herself in an obviously dangerous
position.
28. See 69 L. Q. R. 317 (1953).
29. (1956) 2 Q. B. at 264.
30. Id. at 270-71.
31. (1961) 1 W. L. R. 253.

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98 JOURNAL OF THE INDIAN LA W INSTITUTE [Vol. 17 : 1

had been guilty of contributory negligence in knowingly

unilluminated combination and he awarded her a proportio
ges. As regards Dann* s case, Stable, J., in the course
referred to Justice Asquith's reply to the criticism o
Goodhart32 and pointed out that the plea of contribu
was not set up in Dann9 s case.
It should be noted here that the case of Dann v. Hamilton was decided
in 1939, when the plea of contributory negligence had the same effect as
the maxim volenti non fit injuria, i.e., an absolute defence where it succeeded
or entailing exclusive liability where it failed. Since 1945, however, by the
Law Reform (Contributory Negligence) Act, 1945, the position with respect
to the plea of contributory negligence has changed. It has ceased to be a
total defence and it has become possible to produce a fair result by
apportionment. Hence, the reluctance of courts to find the total defence of
volenti non fit injuria became more marked in cases after 1945, like for
instance in Dawrant's case.

Exception to the application of the maxim 'volenti non fit injuria'

Rescue cases are exceptions to the application of the maxim volenti
non fit injuria . Until 1924, there was almost no case law in England
directly on the point. On the other hand, in the United States there were
numerous cases starting from 1871. The American rule, as stated by
Goodhart, is that

the doctrine of assumption of risk does not apply where the plaintiff
has, under an exigency caused by the defendant's wrongful miscon-
duct, consciously and deliberately faced a risk, even of death, to
rescue another from imminent danger or personal injury or death,
whether the person endangered is one to whom he owes a duty of
protection as a member of his family, or is a mere stranger to whom
he owes no such special duty.33

In England, this rule has not been adopted in toto by the courts. The
relevant and important case on this point is that of Haynes v. Harwoodu
where the Court of Appeal adopted this rule with some cautious qualifi-
cations. In this case, the facts were that the defendant's servant left a
two-horse van unattended in a crowded street. The horses attached to the
van ran away. The plaintiff, a policeman, was on duty, not in the street,
but in the police station nearby. Seeing that a woman and many children
were in grave danger of being run over by these run-away horses, he rushed
out of the police station and eventually stopped them. In doing so he was
seyerely injured.
32. See supra note 28.
33. A. L. Goodhart, Rescue and Voluntary Assumption of Risk, 5 Camb. L. J. 192
at 196 (1933-35).
34. (1935) 1 K. B. 146.

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 1975] VOLENTI NON FIT INJURIA 99

Greer, L. J., accepted the American

held the defendant liable. He observed :

I think it would be absurd to say that if a man deliberately incurs

a risk he is entitled to less protection than if he acts on a sudden
impulse without thinking whether he should do so or not.35

In other words, the maxim volenti non fit injuria does not apply where
the defendant, by his wrongful conduct, places a third person in imminent
danger from which the plaintiff, acting like a reasonably courageous person,
endeavours to rescue him and is injured in consequence. But the above
principle will not apply to a case where it is not a rescue case or where
there is no need to take any risk. In such a case the person suffering harm
cannot recover. It was so held in Cutler v. United Dairies (London) Ltd?*
In this case the facts briefly where that a horse belonging to the defendants
and attached to a van was seen by the plaintiff running past his house
without the driver. The driver, who had followed it, was trying to pacify it,
but as it continued to be restive he was shouting for help. The plaintiff on
hearing this went there and attempted to hold the horse, but it threw him
to the ground causing him serious injuries. It was held by the court that
since there was no need to take any risk and that no one was in danger, the
maxim volenti non fit injuria was applicable and the plaintiff could not
recover.

Again, the plaintiff may be barred from recovering dama

contributory negligence is a decisive cause of his injury. Th
Brandon v. Osborne , Garett and Co. Ltd?1 may be mentione
plaintiff and her husband (H) were in a shop as customers. Ow
negligence of the defendants who were repairing the shop-roof,
fell from a skylight in the roof and struck H. The plaintiff, who
un-harmed, but who reasonably believed H to be in danger, in
clutched his arm and tried to pull him from the spot, and thus g
injured. Swift, J., held that there was no contributory negligence
of the plaintiff, as she had done no more than what any reas
would have done.

Winfield says that in Haynes v. Harwood ,38 wherein the maxim volenti
non fit injuria was rejected as inapplicable, the plea of contributory negligence
was set up but was not much pressed. He states: "Indeed, the earlier case of
Brandon v. Osborne, Garett and Co. Ltd., had made it improbable that it
would have met with any success".39 Thus, the maxim volenti non fit injuria

35. Id. at 159.

36. (1933) 2 K. B. 297.
37. (1924) 1 K. B. 548.
38. Supra note 34.
39. Supra note 2 at 753.

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100 JOURNAL OF THE INDIAN LA W INSTITUTE [Vol. 17 : I

as well as the plea of contributory negligence are not av

defendant in rescue cases. The reason for such a rule seems to be based on
the edifice of social policy that a wrongdoer should not be allowed to benefit
from such defences so that he is deterred from creating any danger to the
innocent members of the society in future and so that every one is encouraged
to rescue another from the danger created by the wrongdoer. As it was
observed in a case :

Bearing in mind that danger invites rescue, the court should not
be astute to accept criticism of the rescuer's conduct from the
wrongdoer who created the danger.40

In this context, the difference of approach between rescue cases and

non-rescue cases may be noted. In non-rescue cases, as pointed out earlier,
the reluctance of the courts to find the total defence of volenti non fit injuria
became more marked since the advent of the Law Reform (Contributory
Negligence) Act, 1945 which has made it possible to produce a fair result by
apportionment.41 In rescue cases, neither the maxim volenti non fit injuria
nor the plea of contributory negligence has been accepted by the courts.42
In other words, the plea of contributory negligence is more readily taken into
account by the courts than the maxim volenti non fit injuria in non-rescue
cases;43 whereas in rescue cases, the plea seems to be of as little value as the
maxim.44

So far, we have been considering the cases in which a third person due
to the wrongful act of the defendant was rescued by the plaintiff. However,
would it make any difference if a person due to his own wrongful act is him-
self in imminent danger and the plaintiff in trying to rescue him is injured ?
On principle, there ought not to be any difference and, therefore, he ought
to be held liable in the one case as in the other. This was so held in
Baker v. T. E € Hopkins and Sons Ltd.*5 where a doctor was killed in an
attempt to rescue two workmen from a well which was filled with the poiso-
nous fumes of a petrol-driven pump. His widow sued the men's employers
and succeeded on the ground of their negligence. Barry, J., observed:

Although no one owes a duty to anyone else to preserve his own

safety, yet if, by his own carelessness a man puts himself into a
position of peril of a kind that invites rescue, he would in law be

40. Baker v. T. E. Hopkins & Sons Ltd . (1959) 1 W. L. R. 966 at 984, per Willmer,
L.J. (C. A.).
41. Imperial Chemical Industries Ltd. v. Shatwell, supra note 5 at 686, per
Pearçe, L.J.
42. See, Haynes v. Harwood, supra note 34 and Brandon v. Osborne , Garett and
Co . Ltd., supra note 37.
43. See, Slater v. C. C. Co. Ltd., supra note 29; Dawrant v. Nutt, supra note 31;
I. C. I. Ltd. v. Shatwell , supra note 5.
44. The view expressed in Anand & Sastri, The Law of Torts 73 (3rd ed., 1967) re-
presents the law prior to the Act of 1945 on contributory negligence.
*>". (1958) I W. L. R. 993 (Q. B. D ).

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19 75j VOLENTI NON FÎT INJURIA 101

liable for any injury caused to someone

foreseen would attempt to come to his aid.4

Another important question is whether th

v. Harwood applies also to rescue of prop
i. e.9 whether a man would be justified in r
order to save his own or other people's pr
caused by the wrongful act of another pers
by the Court of Appeal in Hyett v. G. W. RIy
injured in putting out the fire of another's pro
negligence. The Court of Appeal held that
conduct was reasonable and that the defendants were liable. The court held
that the doctrine of Haynes v. Harwood applies to rescue of property as well
as to rescue of person. However, the court pointed out that in either case
it is necessary for the court to consider the relationship of the rescuer to the
property in peril, or to the person in peril, and also to consider the degree of
danger.48

From the above decision, it appears that if it had been plaintiff's

property, presumably his claim would have been even stronger. But what
will happen in a case, for example, where A has kept a dangerous bomb in
the typewriter of B, and, when the bomb was just about to explode, C,
knowing the capacity of the bomb, ran to save the typewriter and was
severely injured by its explosion ? Goodhart suggests:

The only difference between the life and the property cases is that
a rescuer would not be justified in exposing himself to as great
danger in saving property as he would in saving human life.49

Winfield agrees with this principle, but he says that this principle is not
workable in particular cases. According to him :

Particular cases are imaginable in which the rescuer might reaso-

nably encounter just as much danger in trying to preserve property
as to preserve life; e. g., where documents of great national impor-
tance, and of which no copies exist, are in peril of being destroyed
by a fire caused by the tortious conduct of some person other than
the rescuer.50

46. Id. at 1004. This judgment of Barry, J., was affirmed by the Court of Appeal :
supra note 40. It was also considered by the Queen's Bench in Videan v. British Transport
Commission (1963) 2 Q. B. 650.
47. (1948) I K. B. 345.
48. Id. at 348.
49. Supra note 33 at 198.
50. Supra note 2 at 755.

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102 JOURNAL OF THE INDIAN LA W INSTITUTE [Vol. 17 : 1

Thus, it appears that C' s intervention in saving the typewriter o

not justifiable, whereas the intervention of a rescuer in saving a docu
great national importance is justified. Probably, for the same reason
property of national importance, like Taj Mahal, is in peril of being d
by the wrongful conduct of another person, the intervention of the
even if he stakes his life, is justifiable. But what will happen in tho
where an individual's only property worth Rs. 2 lakhs or 5 lakhs is in
being destroyed by the wrongful act of another person ? It is possible
owner's action in saving his property even at the cost of his life
declared justified because of his antecedent relationship to the p
What, then, is the position of a stranger who stakes his life and wh
antecedent relationship or duty in respect of that endangered proper
answer to this question can be found in a New Zealand case of R
McCabe ,51 where North, J., held :

The fact that the act of intervention is made by a person with n

antecedent relationship or duty in respect of the endangered pr
perty is not necessarily fatal for intervener's action, but is a fact
to be taken into account. The need for intervention must necessar
be acute and the degree . of risk in intervening must be weighe
against the nature and value of the property sought to be protect
Clearly, a line requires to be drawn between justifiable acts
intervention and the well-meaning efforts of a stranger who, without
sufficient justification, intermeddles in some happening which com
to his notice.

S. P . Singh *

51. (1962) N. Z. L. R. 392 at 404.

* LL. B., P.G.D. Crim. (Luck.), LL. M. (Cornell), Lecturer, Faculty of Law,
University of Delhi, Delhi.

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