“Volenti non fit

injuria”
Volenti non fit iniuria (or injuria) (Latin: “to a willing
person, injury is not done”) is a common law doctrine
which states that if someone willingly places themselves
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 or delict.
Volenti applies only to the risk which a reasonable
person would consider them as having assumed by their
actions; thus a boxer consents to being hit, and to the
injuries that might be expected from being hit, but does
not consent to (for example) his opponent striking him
with an iron bar, or punching him outside the usual terms
of boxing. Volenti is also known as a “voluntary
assumption of risk.”

Volenti is sometimes described as the plaintiff

“consenting to run a risk.” In this context, volenti can be
distinguished from legal consent in that the latter can
prevent some torts arising in the first place. For example,
consent to a medical procedure prevents the procedure
from being a trespass to the person, or consenting to a
person visiting one’s land prevents them from being a
trespasser
There are many instances where it has been found that
the loss is being suffered by a person due to the act of
the other, but for which he has no remedy in tort law. It
so happens because that the person suffering the harm
has consented for the same. Example, where a spectator
of a cricket match gets hit by the cricket ball at the
stadium without any part of negligence and wrongful
intention on the part of player or the defendant, in that
situation the plaintiff doesn’t have any remedy under
tort law as he himself has consented for such risk at the
time of purchasing the tickets. This consent is a good
defence for the defendant under tort law and this is
concept is termed as ‘Volenti Non Fit Injuria’.
The term Volenti Non Fit Injuria is a Latin maxim which
refers to a willing person, an injury is not done. It is a
common law doctrine, according to this doctrine the
person who voluntarily gives consent for any harm to
suffer would not be liable to claim any damages for the
same and this consent serves as a good defence against
the plaintiff. The person who himself voluntarily waived
or abandoned his right cannot have any claim over it[1].
Provided this doctrine is only applicable to the extent
that a normally prudent person would have assumed to
have suffered the risk.

So, if a batsman is hit by his other player having the

wrong intention then this defence won’t serve as the
good defence against the defendant, as the batsman has
agreed to suffer the harm caused to him during the game
and that too not voluntarily with the wrong intention.

From the plaintiff’s point of view, it can also be termed as

‘consent to run a risk’. In this context, the defendant can
run out of risk and can prevent himself from the tort
liability arising out of the first case. That is if, for
example, consent given to a person for visiting his house
can save him from the trespass to land.

It may also happen that the consent so obtained may

either be express or implies by the act or the conduct of
the parties. Like where a spectator at a motor race was
being injured by a car which reached there because of
the collusion between the two during the race, and
therefore the spectator was not liable for any action
against the car owner and neither towards the club.[2]
Similarly, a person going on a highway is presumed to
consent to the risk of pure accidents.[3]

History:
The term ‘Volenti non fit injuria’ originally reads as
Nullainiuriaest, quæ in volentem fiat formulated by
Roman jurist Ulpian.[4]

The maxim is a full defence for the action of the

defendant whose consent has been obtained from the
plaintiff, and the plaintiff agrees to suffer the harm
caused to him by that act. The part of proving negligence
factor was a matter of controversy. Before 1945 there
was no any specific difference between the contributory
negligence and volenti non fit injuria. In pre-1945 to take
defence, it was necessary to prove breach of duty. The
judges were having a confusing view regarding
contributory negligence and volenti non fit injuria. Some
were of the view that for the defence to operate it is
necessary that there should be express or implied
consent between the parties for the defence to operate
while the other felt that if there is any pre-existing
danger and the plaintiff knew and had consented to that
then there will no defence be available.

The maxim was standing on the principle of estoppels,

which was applicable to the Roman citizens originally
who gave consent for being sold as a slave. The defence
here argued that the maxim here can’t be applied as for
applying negligence there has to express contract
between the parties and in its absence no negligence
where duty is based on proximity or ‘neighbourship’ in
Atkinian sense. In Dann vs. Hamilton the judge expressed
doubt whether the maxim could ever apply after the act
is done as because if the consent is obtained from the
claimant before the act of negligence is done then the
claimant would not be able to have the knowledge of the
act and till what extent he would be liable to suffer the
harm.
In the case of Khimji vs Tanga Mombasa transport co. ltd
(1962) was the case where the doctrine of volenti non fit
injuria was rightly applied. In this case, the travelling bus
containing some drivers in it reached a place where there
was a flood. The driver insisted to stop the journey, but
the passengers including the defendant insisted to
continue the journey. As a result, the bus droned away
and some passengers including the defendant died. It
was held that the defendant claim can’t be claimes

For taking the defence of Volenti Non Fit Injuria it is

necessary that:

a)The consent must be free

It is necessary that for pleading the defence of Volenti

Non Fit Injuria the consent so obtained by the defendant
must be free that is it should not be obtained by coercion
fraud or through any other means. If such methods are
used to obtain the consent the defence would fail in
getting the relief. Though it is also necessary that the act
should only be done to the extent till the permission is
granted exceeding the limit would also lead for non-
application of relief. For example, if a postman is allowed
to enter the house for delivering the dak, but if he went
inside the house without permission he would be liable
for trespass. Similarly, if the invited guest is asked to sit
in the drawing room, he without any permission enters
the bedroom he can be liable for trespass.As in the case
of Lakshmi Rajan vs. Malar Hospital Ltd. the old aged
women of 40 noticed the lump in her breast. The lump
has no effect on her uterus, but during surgery, her
uterus was removed without any justification. It was held
that the hospital authorities were liable for deficiency in
service. It was also held that the patient’s consent for
operation did not imply her consent for removal of the
uterus.

a.Consent should not be obtained by fraud:

It is necessary that the consent so obtained by fraud

would be void and the defence would not be available
under such circumstances. As in the case of R. vs.
Williams[7] the accused for punished for raping 16 years
old minor girl by obtaining consent by fraud under the
pretence that his act was an operation to improve her
voice. Whereas in the other case of R. vs. Clarence[8] in
this case, it was held that a husband was not liable for an
offence when the husband failed to make her aware of
his condition. Under the first case the girl was not
knowing the nature of activities being done, she was
under the misconception of the surgical operation was
being done and therefore the accused was liable and the
defence was not available for him. Whereas in the
second case the wife knew the nature of the act being
done regardless that she didn’t know its consequences.
Since the consent was given knowingly and without any
fraud, the husband was able to save himself.

b.Mere knowledge does not imply assent:

For the successful defence of the doctrine it is necessary
that

The plaintiff knew that the risk is there

He, knowing the same, agreed to suffer the harm
Mere completion of the first condition doesn’t imply the
successful defence as the knowledge doesn’t imply for
agreement suffer the risk involved.

As in the case of Bowater vs. Rowley Regis

Corporation[9] the plaintiff was a cart driver who was
asked by the defendant’s foreman to drive a horse which
they both knew was liable to bolt. The plaintiff protested
but later took out the horse in obedience to the order.
The horse was bolted and the plaintiff was injured
thereby. It was held that the defence of Volenti Non Fit
Injuria can’t be applied as because the first it was master-
servant relationship where the master knew the and
have knowledge about the risk involved in the act, and
also the cart driver didn’t give consent freely as he has to
follow his masters order and therefore the plaintiff’s
claim was granted, and the defence failed.

Yet another case of Smith vs. Baker[10] the plaintiff was

an employee working for the defendant for cutting the
rock through a drill. The working of his was at the same
place from where the stones were being conveyed from
one place to another. During his working hours, the
stone felt over his head from which the plaintiff got
injured. As a result, he files a suit against the defendant.
The defendant took the plea that the plaintiff was aware
of the risk involved in the working and therefore pleaded
the defence of volenti non fit injuria. Against which the
judgment was given by the House of Lords that as there
was only knowledge of the risk but not the assumption of
it and therefore the defence failed and the claim was
maintained.
c.Negligence of the defendant
For the doctrine to be successfully applicable it is further
necessary that the act must be done to such an extent to
which the consent has been given. Thus, if while playing
cricket, the person gets injured by the ball he can’t have
any claim against another as he himself has given
consent towards it. But the same injury is done to him by
negligently or by intentionally then the injured person
can have a claim against him as he doesn’t give consent
for the harm to suffer for the negligent act of another.
Likewise, if for the operation the consent is given but the
operation fails the patient can’t have any claim against
the doctor, but if the operation failed due to the
negligent act of the doctor then the patient can have a
claim against the doctor. As he doesn’t give consent for
his negligence.

As in the case of Slater vs. Clay Cross Co. Ltd. In this case,
the plaintiff was injured by the train driver by the
defendant’s company, while she was walking along a
narrow tunnel on a railway track which was owned and
occupied by the defendant’s company. The plaintiff was
having the knowledge of the same, and so does the
company owner and therefore it was instructed to the
driver of the trains to give a whistle before passing from
that tunnel. Due to the negligence of the train driver,
who have forgotten to give whittle the lady got injured. It
was held that the lady took the risk of passing to that
track, but she doesn’t give the consent to the risk of the
driver’s negligence.