1

Case Study on Defense

of Consent

Submitted to: Submitted by:

Ms. Vaneet Kaur Sokhi ArinSrivastava
(Assistant professor, law) ( Student of Batch 2026
Roll no.- 2101022)

Dr. B.R. Ambedkar National Law University,

Rai, Sonepat
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Acknowledgement
I would like to express my special gratitude to my Law of Torts
teacher, Ms. Vaneet Kaur Sokhi for her able guidance and support in
completing my project.
I would also like to extend my gratitude to the Vive Chancellor Mam,
Mrs. Vinay Kapoor Mehra for providing me with all the facilities that
was required.

Date: Arin Srivastava

November 28, 2021 Student, B.A. LLB (Hons.)
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Index

1. General defences 4
2. Introduction to the defence of consent 5
3. Essentials of Defence of Consent 7
3.1 The act must not go beyond the limit of what has been consented 7
3.2 The consent for the act must be free 7
3.2.1 The act done by the defendant must be the same for which the 8
plaintiff consented
3.2.2 The consent of the plaintiff must be given by free will 8
3.3 The plaintiff should have the knowledge of what he consented for 8
3.3.1 The plaintiff knew that the risk was there 9
3.3.2 The plaintiff agreed to suffer the harm 9
3.4 There shall be no negligence on the part of the defendant 9
4. Exceptions to the Defence of Consent 11
4.1 In Rescue cases 11
4.2 By the Unfair Contract Terms Act, 1977 11
5. Defece of Consent in Criminal law 13
6. Bibliography 16
7. Webliography 16
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1 . General defenses
When the plaintiff brings an action against the defendant for a tort and all the essentials of the
torts are met, it’s either that the plaintiff would be held liable or he may escape te liability of
the tort by using a defense. The nature of these defenses can either be specific which is
peculiar to a specific tort, like in the tort of Nuisance, the prescriptive right to commit
nuisance stands as a specific defense, or the nature can be general like which is available for a
number of torts, like the defense of Statutory Authority, it is applicable to the tort of trespass
to land, trespass to the person and more.

The general defenses include-

1. Volenti non fit injuria

2. Plaintiff, the wrongdoer

3. Inevitable Accident

4. Act of God

5. Private Defence

6. Mistake

7. Necessity

8. Statutory Authority

Example- A, a bus driver, was driving a bus with fifty passengers on board, after some time
he came to know that the breaks were not working and it was not possible to stop the bus by
any means rather than crashing it, he was near to a dead end so either he had to crash the bus
into another bus where only two passengers were visible or into a bus where almost twenty
passengers were visible, he took the former option and crashed it. Now here the defence of
necessity can be pleaded as the driver had no choice but to crash into the first bus in order to
save the lives of fifty people.
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2 . Introduction to the defense of consent

The defense of consent, popularly referred to as Volenti non fit injuria, is a general defense in
Law of torts and finds its relations to the doctrine of waiver which says “a person, entitled to
a right or privilege, is free to waive that right or privilege. It is voluntary relinquishment or
abandonment of a known existing legal right or privilege. Once a person has so waived his
right, he would not be allowed to claim it afterwards”1 and thus concludes that in case, the
plaintiff voluntarily waives his right and consents to suffer some harm, he is not allowed to
complain about it. It stands as a complete defence in case of torts thus the defendant is
entirely exempted from his liability.

Consent is defined in civil cases by INDIAN CONTRACT ACT, 1872 as “Two or more
persons are said to consent when they agree upon the same thing in the same sense.”2 However, the
word ‘consent’ is nowhere defined in IPC. But Section 90 of IPC talks about what does not
constitutes to consent. It describes consent in a negative term.

Also consent can only be considered as genuine or appropriate when a major gives it,
exception being a minor giving it for daily necessities. Majority is defined by THE
MAJORITY ACT, 1875 as “Every person domiciled in India shall attain the age of majority
on his completing the age of eighteen years and not before.”3

Now this consent to suffer harm can either be express or implied; express can be in the way
of words or written text while implied can be considered by the conduct of a person in the
following situation.

For example, A asked B if he can slap him, B said “yes” and consequentially A slapped B,
now B has voluntarily waived his right and thus cannot sue A for battery and his saying yes
can be referred to as his express consent to suffer harm.

In the case of a boxing match A agrees to fight B and avails some injuries during the match in
the course of fair play, now A’s consent to have a boxing match with B covers the ambit of
him consenting to suffer injuries in normal course of fair play and thus suggested the implied
consent of A.

1
Singh MP , V.N. Shukla's Constitution (India, Eastern Book Company, Lucknow, 11th edn.,2008).
2
The INDIAN CONTRACTS ACT, 1872 (Section 13)
3
The MAJORITY ACT, 1875 (Section 3[1])
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The effect of the defence of volenti non fit injuria can be studied in the following cases
mentioned below-

The plaintiff in Hall v. Brooklands Auto Racing Club4 was a spectator at a motor race staged
at Brooklands on a track owned by the defendant. During the race, two automobiles collided,
and one was thrown into the crowd, injuring the plaintiff. The plaintiff impliedly accepted the
risk of injury, and the defendant was not liable because the hazard was inherent in the sport
and could be predicted by any viewer.

In the case of Padmavati v. Dugganaika5, two strangers took the jeep for a ride while the
driver was filling up the tank. The jeep tipped over when one of the nuts holding the right
front wheel to the axle snapped. The two strangers were thrown out and injured, with one of
them dying as a result of the incident. The court decided that neither the driver nor his master
could be held accountable, first because it was a complete accident, and second, because the
strangers had freely entered the jeep, implying that the concept of volenti non fit injuria
applied in this situation

4
Hall v. Brooklands Auto-Racing Club, (1932) All E.R. 221 : (1932) All E.R. Rep. 208
5
Padmavati v. Dugganaika [(1975) ACJ 222]
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3 . Essentials of Defense of Consent

As every kind of tort requires some basic essentials to be fulfilled, the same is applicable to
the defenses in case of torts. Volenti non fit injuria being a general defense requires some
basic essentials to be fulfilled in order to attain it as a complete defense. These basic
essentials are mentioned below-

1. The act must not go beyond the limit of what has been consented
2. The consent for the act must be free
3. The plaintiff should have the knowledge of what he consented for
4. There shall be no negligence on the part of the defendant

3.1 The act must not go beyond the limit of what has been consented

The consent to suffer harm is limited to the ambit of normal course of the act or what may
have been expressly consented for, as going beyond it implies the defendant to have gone
beyond the shelter of consent by the plaintiff.

For example, A and B were playing a boxing match, B knowing the fact that it is barred by
rules to hit a boxer below the waist, hit him near the thighs causing him a brutal injury. If A
sues B for battery, B cannot avail the defense of volenti non fit injuria as A never consented
B to go beyond the ambit of fair play and rules of the game and thus the act is not covered
under the shelter of consent.

3.2 The consent for the act must be free

The defense of consent can only be given when the consent of the plaintiff to the specific act
done by the defendant is proved to be free. Thus, the terms of this free will to consent can be
further divided into the following contentions-

A. The act done by the defendant must be the same for which the plaintiff consented
B. The consent of the plaintiff must be given by free will
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3.2.1 The act done by the defendant must be the same for which the plaintiff consented

As the term suggests, the plaintiff’s consent towards the act must be the same act done by the
defendant. For example- A, a deliverymen, had to deliver some goods to B’s office. A
entered B’s office, being attracted to the servers went inside the server room. Here B didn’t
consent A to enter the server room and thus the act was not the same for which B consented.
A committed trespass and cannot claim the defense of volenti non fit injuria.

The same can be seen in R. v. Williams6, the accused, a music instructor, was found guilty of
rape after having sexual intercourse with a 16-year-old girl student under the guise of a
surgery to improve her voice. The consent of the girl was not for the act done by the accused
thus he cannot be granted the defense of volenti non fit injuria.

3.2.2 The consent of the plaintiff must be given by free will

The consent given by the plaintiff under a circumstance where he was under some
compulsion or influence cannot be referred to as a genuine consent for the same. This usually
happens in a master servant relationship where the servant is under the fear of losing his job
if he doesn’t adhere to the will of his master, thus it does not imply that he willfully agreed to
suffer harm for the same as he is not in a position to decide freely, concluding that his
consent is not free in nature and as if the consent is not free in nature the defense of consent
doesn’t withstand.

For example- A, a servant in B’s company, was assigned by B to go into a cave to bring out
some necessary samples for a research, methane was leaking from a natural pit coming out in
the cave and there were high chances that it can produce a blast which can kill him, but due to
the fear of losing his job, he entered the cave and a blast occurred due to the drilling, B
cannot claim the defense of volenti non fit injuria as the consent by A was not free in nature.

3.3 The plaintiff should have the knowledge of what he consented for

To avail the defense of volenti non fit injuria, the plaintiff must be aware of the risks he
might encounter after the consent, there are broadly two points to be proved-

6
R. v. Williams [1987] 3 All ER 411; Cr App R 276 (1987) 78
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I. The plaintiff knew that the risk was there

II. The plaintiff agreed to suffer the harm

3.3.1 The plaintiff knew that the risk was there

It is essential for the plaintiff to know what are the risks involved as absence of knowledge
for the same doesn’t imply his consent to it.

For example- A consented to participate in a gaming show where he had to cross obstacles
and not being able to cross them might lead him to drop into water or being smashed away
but when he entered the arena and was going through the obstacles, a place came where
flames were blown near an obstacle which he had no knowledge about and suffered injuries.
Here A’s consent was not genuine as he didn’t know of the risk of flame burns and thus the
show owner cannot escape from the liability by the defense of consent.

3.3.2 The plaintiff agreed to suffer the harm

It is essential for the plaintiff to agree to suffer the harm after knowing the necessary risks
involved.

In Smith v. Baker7, the plaintiff was a worker hired by the defendants to cut a rock using a
drill. Stones were transported from one side to the other with the use of a crane, and the crane
passed over the plaintiff's head each time the stones were transported. A stone fell from the
crane and hurt him as he was occupied with his work. Although the plaintiff was generally
aware of the risk, his employers were negligent in not informing him at the time of a
reoccurring threat.

3.4 There shall be no negligence on the part of the defendant

For the defense of consent to be available, the defendant must not have done any act in a
negligent manner which caused harm to the plaintiff as the plaintiff never consented to the
negligence but the act in due course.

7
Smith v Baker & Sons [1891] AC 325
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For example- A, a patient came to B, a surgeon, for an operation, the operation went
successful but the surgeon mistakenly left an operating scissor in the stomach of A. Here the
doctor cannot take the defense of consent as the plaintiff consented for the operation and its
ill effects but not the negligent act of the surgeon.

In Slater v. Clay Cross Co.8, the plaintiff was attacked and injured by a train driver by the
defendant's servant while strolling along a narrow tunnel on a railway track owned and
operated by the defendants. Because the corporation was aware that the tunnel was utilized
by the general public, its drivers were told to whistle and slow down when entering the
tunnel. The accident occurred as a result of the driver's failure to follow such directions. The
defendants were found to be liable.

8
Slater v Clay Cross Co Ltd [1956] 2 QB 264
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4 . Exceptions to Defense of consent

There are some horizons where the defense of consent’s applicability is curtailed, such as-

I. In Rescue cases
II. By the Unfair Contract Terms Act, 1977

4.1 Rescue Cases

When the plaintiff voluntarily encounters a risk to rescue somebody from an imminent
danger created by the wrongful act of the defendant, he cannot be met with the defense of
volenti non fit injuria.

The case of Haynes v. Harwood9 is significant in this regard. The defendants' servant left a
two-horse van unattended in a street in that case. The horses ran after a boy hurled a stone at
them, putting women and children on the road in great danger. On witnessing the horses, a
police constable on duty inside a neighbouring police station managed to stop them, but he
sustained serious physical injuries in the process. The defence of 'volenti non fit injuria' was
not recognised because it was a'rescue case,' and the defendants were found responsible.

4.2 By the Unfair Contract Terms Act, 1977

Unfair Contract Terms Act, 1977 limits the right of a person to restrict or exclude his liability
resulting from his negligence by a contract term, or by notice. Section 2 of the Act contains
the following provisions in this regard :

Negligence Liability.—(1) A person cannot by reference to any contract term or to a notice

given to a person generally or to particular persons exclude or restrict his liability for death or
personal injury resulting from negligence.

(2) In the case of other loss or damage, a person cannot so exclude or restrict his liability for
negligence except in so far as the term or notice satisfies the requirement of reasonableness.

9
Haynes v Harwood [1935] 1 KB 146
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(3) When a contract term or notice purports to exclude or restrict liability for negligence, a
person's agreement to or awareness of it is not of itself to be taken as indicating his voluntary
acceptance of any risk."

Sub-sec. (1) puts an absolute ban on a person's right to exclude his liability for death or
personal injury resulting from negligence, by making a contract or giving a notice to that
effect. It means that even if the defendant has procured plaintiff's consent (by an agreement
or a notice) to suffer death or personal injury resulting from the plaintiff's negligence,
plaintiff's liability is not negatived thereby.

Sub-sec. (2) deals with cases where the damage caused to the plaintiff is other than death and
personal injury. In such a case, exclusion of liability by a contract term or notice is possible
only if the term of notice satisfies the requirement of reasonableness.

Sub-sec. (3) further provides that even in those cases where the defendant could exclude or
restrict his liability by a contract term or notice, the plaintiff's agreement or awareness about
such agreement or notice, is not of itself to be taken as indicating his voluntary acceptance of
any risk. It means that not merely an agreement or notice may be enough to restrict the
defendant's liability, something more, for instance, further evidence about the genuineness of
the plaintiff's consent, and voluntary assumption of the risks must also be proved.10

In Lilly White V. R.Munuswami, 196611, Munuswami gives one saree for dry clean to M/s
Lilly White firm. The same has been lost by the firm.There was one exception clause that
firm will be liable to pay only 50% of the article in case the article is lost. Plaintiff claimed
Rs. 220 and firm agreed to pay Rs. 110. The Court held that this exemption clause is against
public policy, so Munuswami is entitled for Rs. 220.

Thus the defence of consent cannot be pleaded here because the exemption clause was unfair
in nature

10
The Unfair Contracts Terms Act, 1977
11
Lily White v. R. Munuswamy, (AIR 1966 Mad 13)
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5 . Defense of Consent in Criminal Law

The IPC (The Indian Penal Code, 1860) does not define consent but defines what cannot be
considered as consent.

Section 90 says “Consent known to be given under fear or misconception.—A consent is

not such a consent as is intended by any section of this Code, if the consent is given by a
person under fear of injury, or under a misconception of fact, and if the person doing the act
knows, or has reason to believe, that the consent was given in consequence of such fear or
misconception; or
Consent of insane person.—if the consent is given by a person who, from unsoundness of
mind, or intoxication, is unable to understand the nature and consequence of that to which he
gives his consent; or
Consent of child.—unless the contrary appears from the context, if the consent is given by a
person who is under twelve years of age.”12

For many sections in the IPC, the consenting of a child in not a valid as they signify the
assent of the child to be having no value, such as in Section 375. This was signified recently
in Independent Thought vs Union of India on 11 October, 2017, giving verdict that sexual
intercourse with a minor wife would be considered as rape suggesting that minors cannot
consent in case of sexual intercourse defined in Section 375 of IPC.

In Dasrath Paswan v. State of Bihar (1957)13, the accused had failed an examination for three
years in a row. He chose to end his life as a result of his constant failures. He talked to his
wife, a 19-year-old literate woman, about his decision. His wife advised him to kill her first,
then himself. As a result, the accused murdered his wife first and was apprehended before
committing himself. The wife was found not to have provided her permission due to fear of
injury or a misunderstanding of the facts. As a result, the accused was not be held responsible
for the murder.

Also the defence of consent can be seen in various sections of the IPC such as Section 87, 88
and 89, dealing with defence of consent in cases of grievous hurt and acts likely to cause
death.

12
THE INDIAN PENAL CODE, 1860 (Section-90)
13
Dasrath Paswan v. State of Bihar (AIR 2006 SC 2531)
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Section 87 says “Act not intended and not known to be likely to cause death or grievous
hurt, done by consent—Nothing which is not intended to cause death, or grievous hurt, and
which is not known by the doer to be likely to cause death or grievous hurt, is an offence by
reason of any harm which it may cause, or be intended by the doer to cause, to any person,
above eighteen years of age, who has given consent, whether express or implied, to suffer
that harm; or by reason of any harm which it may be known by the doer to be likely to cause
to any such person who has consented to take the risk of that harm.”14

In Bishambher v. Roomal (1950)15, the complainant abused a girl. Around 200 people
gathered immediately to punish him. Three locals interfered and attempted to find a middle
ground. All of the people assembled in front of the Panchayat, and the plaintiff decided to
follow the Panchayat's ruling. The plaintiff was ordered by the Panchayat to walk about the
village with his face blackened. All of the people in the middle were detained and charged
with violating Sections 323 and 502 of the IPC. The accused were entitled to the benefit of
Section 87 of the IPC since they acted in good faith and without any criminal purpose to
prevent significant repercussions stemming from the complainant's earlier act, according to
the Court.

Section 88 says, “Act not intended to cause death, done by consent in good faith for
person's benefit.— Nothing, which is not intended to cause death, is an offence by reason of
any harm which it may cause, or be intended by the doer to cause, or be known by the doer to
be likely to cause, to any person for whose benefit it is done in good faith, and who has given
a consent, whether express or implied, to suffer that harm, or to take the risk of that harm.”16

In R.P. Dhanda v. Bhurelal17, the appellant, a medical doctor, performed an eye procedure for
cataract with the patient's consent. However, the operation resulted in the loss of vision. The
doctor was found to be protected by section 88 of the Code because he operated in good faith
for the benefit of the patient.

14
THE INDIAN PENAL CODE, 1860 (Section-87)
15
Bishambhar v. Roomal (AIR 1951 All 500)
16
THE INDIAN PENAL CODE, 1860 (Section-88)
17
R.P Dhanda V. Bhurelal, 1987 CriLJ 1316
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Section 89 says “Act done in good faith for benefit of child or insane person, by or by
consent of guardian.— Nothing which is done in good faith for the benefit of a person under
twelve years of age, or of unsound mind, by or by consent, either express or implied, of the
guardian or other person having lawful charge of that person, is an offence by reason of any
harm which it may cause, or be intended by the doer to cause or be known by the doer to be
likely to cause to that person:

Provided— Provisos. First.—That this exception shall not extend to the intentional causing of
death, or to the attempting to cause death;
Secondly.—That this exception shall not extend to the doing of anything which the person
doing it knows to be likely to cause death, for any purpose other than the preventing of death
or grievous hurt, or the curing of any grievous disease or infirmity;
Thirdly.—That this exception shall not extend to the voluntary causing of grievous hurt, or to
the attempting to cause grievous hurt, unless it be for the purpose of preventing death or
grievous hurt, or the curing of any grievous disease or infirmity;
Fourthly.—That this exception shall not extend to the abetment of any offence, to the
committing of which offence it would not extend.”18

For example- A, the father of an insane child B, consents for a treatment given by C, which
might result into partial sight loss to the child. A acted in good faith for the benefit of his
child and thus gave consent for the treatment and hence is protected by Section 89 of the IPC.

18
THE INDIAN PENAL CODE, 1860 (Section-89)
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6 . Bibliography

1. R.K, Bangia, Law of torts (Allahbad Law Agency, Faridabad, 25th edn.,2020)
2. P.S.A. Pillai, Law of tort (Eastern Book Company, New Delhi, 9th edn., 2004)
3. Avtar Singh, Contract & Specific Relief Act (Eastern Book Company, New Delhi, 25th
edn., 2017)

7 . Webliography

1. www.bareactslive.com/LCR/LC103.HTM
2. www.casemine.com
3. blog.ipleaders.in/consent-as-a-defence-under-i-p-c/
4. taxguru.in/corporate-law/consent-defence-crime-indian-penal-code.html
5. https://blog.ipleaders.in/consent-as-a-defence-under-i-p-c/