VOLENTI NON FIT INJURIA AND INEVITABLE ACCIDENTS

A project submitted to

Army Institute of Law, Mohali

In partial fulfilment of the requirements for the award of

Degree of B.A. LL.B.

Submitted to Submitted by

Dr. Anmolpreet Kaur Awantika Sharan

Professor (Torts) Roll No.: 2133

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DECLARATION

It is certified that the project work presented in this report entitled “VOLENTI NON FIT

INJURIA AND INEVITABLE ACCIDENTS” embodies the result of original work carried

out by me. All ideas and references have been duly acknowledged.

AWANTIKA SHARAN (2133)

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ACKNOWLEDGEMENT

I would like to express my special thanks of gratitude to my teacher, Dr. Anmolpreet Kaur,

and our Principal, Dr. Tejinder Kaur, who gave me the golden opportunity to do this project

on the poem “VOLENTI NON FIT INJURIA AND INEVITABLE ACCIDENTS”. It helped

me in understanding a lot more about the subject and get an in depth understanding of the

topic.

Finally, I would also like to thank my parents and friends who helped me a lot in finalizing

this project within the limited time frame.

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INDEX

INTRODUCTION 1

VOLENTI NON FIT INJURIA AND ESSENTIALS 2

CONSENT 3-4

LIMITATIONS OF THE DOCTRINE 6

INEVITABLE ACCIDENTS 7

BIBLIOGRAPHY 8

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INTRODUCTION

When the plaintiff brings an action against the defendant for a particular tort, providing the
existence of all the essentials of that tort, the defendant would be liable for the same. The
defendant may, however, even in such a case, avoid his liability by taking the plea of some
defence. There are some SPECIFIC DEFENCES, which are applied to certain particular
wrongs, for example, in an action for defamation, the defences of fair comment or
justification are available. be taken, whether the acn is for trespe other wrong.
1. Volenti non fit injuria, or the defence of ‘Consent’ - Volenti non fit injuria is a
common law doctrine which states that if someone willingly places them in a position
where harm might result, knowing that some degree of harm might result; they are not
able to bring a claim against the other party in tort.
2. Plaintiff, the wrongdoer - Plaintiff the wrongdoer’ is based on the principle of “ex turpi
causa non ortitur actio”, meaning that, “out of a wrongful cause, no action arises”.
3. Inevitable accident - An inevitable accident is one that was not intended, and which,
under all the circumstances, could not have been foreseen or prevented by the exercise of
reasonable precautions.
4. Act of God - In legal usage throughout the English-speaking world, an act of God is a
natural hazard outside human control, such as an earthquake or tsunami, for which no
person can be held responsible.
5. Private Defence - In general, private defence is an excuse for any crime against the
person or property. It also applies to the defence of a stranger, and may be used not only
against culpable but against innocent aggressors. The defence is allowed only when it is
immediately necessary-against threatened violence.
6. Mistake - When a defendant acts under a mistaken belief in some situations then he may
use the defence of mistake to avoid his liability under the law of torts.
7. Necessity - In common law, the defence of necessity gives the state or an individual a
privilege to take or use the property of another i.e., a person has the qualified privilege to
intentionally trespass onto the land of another in order to prevent serious harm to oneself,
to one's own land, to one's chattels, or to the person.

8. Statutory Authority - Any damage resulting from an act, which if authorized by the
legislature to be done, is not actionable even though in normal circumstances it would be
a tort.

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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 suffer some harm, he is not allowed to
complain for that and his consent serves as a good defence against him.
Such consent to suffer harm maybe express or implied.
EXAMPLE-
 We can’t sue someone for trespass whom we have invited to our house.
 Similarly, 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.
CASES –
1. HALL V. BROOKLANDS AUTO RACING CLUB
In this case 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.
2. PADMAVATI V. DUGGANAIKA
In this case, 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 in this case.

ESSENTIALS OF VOLENTI NON FIT INJURIA

→ There should be an agreement – An agreement should be entered into in the first
place for the defence to be applicable. The agreement maybe may be express or implied.
→ The agreement should have been entered into voluntarily – For the defence
to be available, it is necessary to show that the plaintiff consented to the act done by the
defendant. This consent should be free and should not be the one obtained by fraud or under
compulsion. The agreement must have been done voluntarily.

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CONSENT

TYPES OF CONSENT
1. Expressed consent –
Express consent may be oral or written. If risks are determined to be those on some grave
matter, then consent is generally written. An example of Express consent in written form
is that of the agreements entered into before doing surgical operations Express consent
was also witnessed in brick in the case of R. v. Williams
.
2. Implied consent –
Implied consent is a controversial form of Consent which is not expressly granted by a
person, but rather inferred from a person's actions and the facts and circumstances of a
particular situation or in some cases, it might be inferred from a person's silence or
inaction as well. It relies upon the reliance on interpreting one's compliance as consent.

Example - Hall V. Brooklands Auto Racing Club

In this case 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.

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A. CONSTENT MUST BE FREE
For the defence, 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.

In Lakshmi Rajan v. Malar Hospital Ltd., the complainant, a married woman, aged 40,
noticed development of a painful lump in her breast. The lump had no effect on her uterus,
but during surgery, her uterus was removed without any justification.

It was held that the opposite party, i.e., the hospital, was liable for deficiency in service. It
was also held that the patient’s consent for the operation did not imply her consent to the
removal of uterus.

B. CONSENT OBTAINED BY FRAUD

Consent obtained by fraud is not real and that does not serve as a good defence. The principle
of ex turpi causa non oritur actio applies here which means that from an Immoral cause, no
action arises.

In R v Williams, the defendant was a singing coach. He told one of his pupils that he was
performing an act to open her air passages to improve her singing. In fact, he was having
sexual intercourse with her. It was held that her consent was vitiated by fraud as to the nature
and quality of the act.

C. CONSENT OBTAINED UNDER COMPULSION

When consent is given under the circumstances where the person does not have any freedom
of choice and is forced to do so is not a 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.

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D. MERE KNOWLEDGE DOES NOT IMPLY ASSENT FOR THE
APPLICABILITY OF THIS MAXIM
The following essentials need to be present:
❖ The plaintiff knew about the presence of risk.
❖ He had knowledge about the same and knowingly agreed to suffer harm.

In the case of Bowater v. Rowley Regis Corporation, a cart-driver was asked to drive a
horse which to the knowledge of both was liable to bolt. The driver was not ready to take that
horse out but he did it just because his master asked to do so. The horse, then bolted and the
plaintiff suffered injuries. Here, the plaintiff was entitled to recover.

In Smith v. Baker the plaintiff was an employer to work on a drill for the purpose of cutting
rocks. Some stones were being conveyed from one side to another using crane surpassing his
head. He was busy at work and suddenly a stone fell on his head causing injuries. The
defendants were negligent as they did not inform him. The court held that mere knowledge of
risk does not mean that he has consented to risk, so, the defendants were liable for this. The
maxim volenti non fit injuria did not apply.

The agreement should have been made in full knowledge of the nature and extent of the risk
involved in the act. The consent must have been given while knowing the extent of risk
involved. For the defence of volenti non fit injuria to be applicable, the one claiming it
(defendant)must prove that the plaintiff had the full knowledge of the nature and extent of the
risk involved. But mere knowledge does not imply assent. Having complete knowledge of the
risk, the plaintiff should also have had agreed to suffer the harm.

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LIMITATIONS OF THE DOCTERINE
1. Rescue cases
When the plaintiff voluntarily comes to rescue someone from a danger created by the
defendant then in such cases the defence of volenti non fit injuria will not be available to the
defendant.
Eg - If A creates danger for B and he knows that a person C is likely to come to rescue B.
then, A will be liable to both B and C. Each one of them can bring an action for the same,
independently.

In Haynes v. Harwood, the defendants’ servant left two unattended horses in a public street.
A boy threw a stone on the horses due to which they bolted and created danger for a woman
and other people on the road. So, a constable came forward to protect them and suffered
injuries while doing so. This being a rescue case so the defence of volenti non fit injuria was
not available and the defendants were held liable. However, if a person voluntarily attempts
to stop a horse which creates no danger, then he will not get any defence.

2. Negligence of the defendant

This defence is not available where the plaintiff has been injured due to the negligence of the
defendant. For the defence to be available to the defendant, the act must be the same for
which the consent has been given by the plaintiff. When the plaintiff consents to take some
risk, it is presumed that there will be no negligence on part of the defendant.

The above point is clearly illustrated by the case of Slater v. Clay Cross Co. Ltd. In this case,
the plaintiff, a lady, was injured by a train driver while she was walking along a narrow
tunnel which was owned by the defendant. The company had already instructed its drivers to
whistle and slow down while entering the tunnel. But the driver ignored the instructions and
drove negligently due to which the plaintiff was injured. The court neglected the defendant’s
stand of volenti non fit injuria and held that even though the lady took the risk of walking
along the tunnel, it was because of drivers’ negligence she got injured. Therefore, the
company was held liable. When the plaintiff consents to take some risk, there is a common
presumption that the defendant will not be negligent, and if he is, the defence of volenti non
fit injuria cannot be taken.

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INEVITABLE ACCIDENTS
An inevitable accident is one that was not intended, and which, under all the circumstances,
could not have been foreseen or prevented by the exercise of reasonable precautions. It is a
defence to a claim for negligence. For example, is an accident ‘inevitable’ where a car causes
a collision because the driver lost control due to ice or snow on the roadway or they hit a
heavy patch of fog? The answer will most likely be no and the driver will be found at fault.
In Stanley v. Powell 9the defendant and the plaintiff went to a pheasant shooting. The
defendant fired at a pheasant but the bullet after getting reflected by an oak tree hit the
plaintiff and he suffered serious injuries. The incident was considered an inevitable accident
and the defendant was not liable in this case.

In the case of Holmes v. Mather the defendant’s horse was being driven by his servant. Due
to the barking of dogs, the horse became unmanageable and started to bolt. In spite of every
effort of the driver, the horse knocked down the plaintiff. This makes it a case of an
inevitable accident and the defendants were held not liable for the incident.

In Brown v. Kendall the dogs of the plaintiff and the defendant were fighting with each
other. The defendant tried to separate them and while doing so, he accidentally hit the
plaintiff in the eye causing him some serious injuries. The incident was purely an inevitable
accident for which no claim could lie. So, the court held that the defendant is not liable for
the injuries suffered by the plaintiff as it was purely an accident.

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BIBLIOGRAPHY
Books:
1. Bangia, Dr.R.K , “ Law Of Torts”, Allahabad law Agency, Faridabad 26th Edn., 2019

Websites:
1. Karen Wingmod, “Inevitable Accidents”, Oatley Vigmond. September 9, 2019.
2. Adarsh Singh Thakur, “Volenti Non Fit Injuria”, IP Leaders, April 22, 2019.

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