CHANAKYA NATIONAL LAW UNIVERSITY,

NYAYA NAGAR, MITHAPUR, PATNA – 800001.

TOPIC – LIMITATION ON THE SCOPE OF VOLENTI

NON FIT INJURIA
FINAL DRAFT SUBMITTED IN THE PARTIAL FULFILMENT OF THE COURSE TITLED –

LAW OF TORTS

SUBMITTED TO: SUBMITTED BY:

MS SNEHA. BANDITA
CENTRE COORDINATOR ROLL NO. : 2221
CHILD RIGHT CENTRE SEMESTER: FIRST
SESSION: 2019-2024
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 DECLARATION BY STUDENT

I, BANDITA ,student of Chanakya National Law University hereby declare that the work reported in the
B.B.A. LL.B.(HONS)project report entitled: “LIMITATIONS ON THE SCOPE OF VOLENTI NON FIT
INJURIA” submitted in Chanakya National Law University ,Patna is an authentic record of my work carried
out under the supervision of Ms. Sneha I have not submitted this work elsewhere for any other degree of
diploma. I am fully responsible for the contents of my project report.

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 ACKNOWLEDGEMENT

I would like to thank my faculty Ms. Sneha whose guidance helped me a lot with structuring of my project. I
take this opportunity to take deep sense of gratitude for her guidance and encouragement which sustained
my efforts on all stage of this project.

I owe the present accomplishment of my project to my friends, who helped me immensely with materials
throughout the project and without whom I couldn’t have completed it in the present way. I would also like
thank the library staff of my college which assisted me in acquiring the sources necessary for the
compilation of my project.

I would also like to extend my gratitude to my parents and all those unseen hand that helped me out at every
stage of my project.

THANKYOU

NAME: BANDITA
ROLL NO:2221
COURSE: BBA LLB
SEMESTER:1st

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CONTENTS
CHAPTER 1: INTRODUCTION………………………………………………………………….5
DEFINITION OF TORTS………………………………………………………………………..5
CHARACTERISTICS OF TORTS………………………………………………………………5
CHAPTER 2: VOLENTI NON FIR INJURIA……….…………………………………………..6
DEFINITION OF VOLENTI NON FIT INJURIA………………….………………………….6
ESSENTIALS OF THE DOCTRINE……………………………………………………………..
CHAPTER 3: LIMITATION ON THE SCOPE OF VOLENTI NON FIT INJURIA
RESCUE CASES………………………………………………………..………….8
DEFINITION ………………………………………………………………………………..….8
DIFEERENT SITUATIONS……………………………………………………………………..9
CHAPTER 4: UNFAIR CONTRACT ACT,1977…………………………………………………10
DEFINITION……………………………………………………………………………………10
NEGLIGENCE LIABILITY…………………………………………………………………….11
CHAPTER 5: LANDMARK JUDGEMENTS ON LIMITATION OF THE DOCTRINE……..12
Lane v Holloway………………………………………………………………………………….12
Wheeler v. New Merton………………………………………………………………………….12
Dann v. Hamilton…………………………………………………………………………………12
Kirkham v. Chief Constable of Greater Manchester……………………………………………12
Videan v. British Transport Commission …………………………………………………………12-13
CHAPTER 6:CRITICAL ANALYSIS OD HAYNES V. HARWOOD……………………………13
CONCLUSION………………………………………………………………………17
BIBLIOGRAPHY…………………………………………………………………..18

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CHAPTER 1: INTRODUCTION
The word “tort” is derived from the Latin word ‘tortum’ which means ‘to twist’. It implies that
conduct which is twisted, crooked or unlawful or that which is not straight. It is the same as the
English term ‘wrong’. The law of torts as administered in India in modern times is the English
law as found suitable to Indian conditions and as modified by the Acts of the Indian Legislature.
Its origin is linked with the establishment of British Courts in India. 1 The English law is
selectively applied in India as rules of justice, equity and good conscience.

Tort may be defined as a civil wrong which is redressible by an action for unliquidated damages
and which is other than a mere breach of contract or breach of trust. Defining tort Salmond says,
“It is a civil wrong for which remedy is a common law action for unliquidated damages and
which is not exclusively the breach of a contract or the breach of trust or other merely equitable
obligation”. On the other hand, according to Winfield,” Tortiuous liability arises from the breach of
a duty primarily fixed by the law: this duty is towards persons generally and its breach is
redressible by an action for unliquidated damages.”2
Examples of torts include trespass to land, trespass to person (includes malicious prosecution,
assault and battery), negligence, defamation and nuisance. When the plaintiff files a suit against the
defendant for some tort, claiming damages, on the condition that all the essentials of that tort are
present, the defendant would be liable for it. Even in such a situation, the defendant might escape
his liability. This can be done by taking plea of some defence. These defences may include volenti
non fit injuria, act of God, plaintiff’s own fault, statutory authority, act of state etc.
CHARACTERISTICS OF TORTS
Tort, is a private wrong, which infringes the legal right of an individual or specific group of individuals.

The person, who commits tort is called "tort-feasor" or "Wrong doer"

The place of trial is Civil Court.

Tort litigation is compoundable i.e. the plaintiff can withdraw the suit filed by him.

Tort is a specie of civil wrong.

Tort is other than a breach of contract

The remedy in tort is unliquidated damages or other equitable relief to the injured.

Harm suffered voluntarily does not constitute a legal injury and hence, is not actionable. This
principle has been embodied in the maxim volenti non fit injuria which literally means that “to
which a man consents, cannot be complained of as an injury”. The claimant is not allowed to
complain of harm to the chances of which he has exposed himself with knowledge and of his free
will and for this reason, his consent proves to be a really good defence against him.

1
Justice G. P. Singh, “Ratanlal & Dhirajlal’s The Law of Torts”,LexisNexis Butterworths Wadhwa,27th edn., Pg. No. 1
2
Dr R.K. Bangia , “Law of Torts”, Allahabad Agency, 24th edn.,2017,Pg. No. 4
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CHAPTER 2: DOCTRINE OF VOLENTI NON FIT
INJURIA

Volenti non fit injuria’ [Latin: ‘to the consenting, no injury is done’3] is a common law doctrine
which states that if someone willingly places himself/herself in a position where harm might result,
having the full knowledge that some degree of harm might result, then he/she cannot bring a claim
against the other party in tort. The doctrine only applies to the risk which a reasonable person
could have considered to have been present having assumed by his/her actions. Harm suffered
voluntarily does not constitute a legal injury and is not actionable. One cannot enforce a right
which he has voluntarily waived or abandoned.

If the assent is to the infliction of harm on or, at any rate, to the use of the plaintiff’s property,
such assent is more usually styled as “leave and license” of the plaintiff. It is suggested by some
people that the more appropriate maxim should have been volenti non fit periculam injuria,
meaning “to the person who is willing, the danger of injury does not arise”, as it refers more
particularly to personal injuries. For the defence of volenti non fit injuria to be available, the act
causing the harm must not go beyond the limit of what has been consented. In case a person is
incapable of giving his/her consent because of insanity or minority, then consent of such person’s
parent or guardian is sufficient to make the doctrine available as a defence.

For the defence to be available, it has to be proved by the defendant that the plaintiff was fully
aware of the risks involved, which included, both the nature of risk as well as the extent of the
risk. Secondly, the plaintiff should have had either expressly (by statement or in writing) or
impliedly (by his actions) consented to waive all claims for damages. It must also be noticed that
during the application of the maxim mere knowledge of the risk involved does not mean that
consent was there, that is, sciens non est volens (“knowing is not volunteering”). The presence of
free consent is necessary. It is clear that consent may be implied from conduct as well as
expressed in words so that the defendant escapes liability if he was justified in inferring that the
claimant consented even though, secretly, he did not.4

ESSENTIAL ELEMENTS OF VOLENTI NON FIT INJURIA

For the defence of volenti non fit injuria to be applicable, the following essentials must be present:
There should be an agreement.
The agreement should have been entered into voluntarily.
The agreement should have been made in full knowledge of the nature and extent of the risk
involved.

1.There should be an agreement.

An agreement should have been entered into in the first place for the defence to be applicable.
The agreement may be express or implied. An example of an express agreement would be where

3
http://legal-dictionary.thefreedictionary.com/Volenti+non+fit+injuria [last accessed on: 24/08/19]
4
W V H Rogers, Winfield and Jolowicz on Tort, Sweet & Maxwell Ltd., London, 19thedn., Pg. No. 1059
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there exists a contractual term or notice. However, this would be subject to the controls of s.2 of
the Unfair Contract Terms Act 1977. An implied agreement may exist where the claimant's action
in the circumstances demonstrates a willingness to accept not only the physical risks but also the
legal risks.5

2.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 voluntary and freely entered into.

3.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.

The perfectly sound principle underlying this maxim is daily illustrated in common life. It protects the
surgeon who amputates a limb; the football player, boxer, or fencer , so long as they play fairly according to
the rules of the game; and it prevents a person who chooses to pay debt barred by the Statute of Limitations,
or not enforceable by reason of infancy of getting money back.1The action of maxim is not dependent on any
valid contract but upon the competence of the decision making person at the time the consent was given .
So a minor who is capable of making reasonable assessment of the advantages and disadvanatges of the
treatment proposed by the physician or surgeon can give a valid consent. In Gillick v. West Norfolk and
Wisbeck Area Health Authority, the house of lords held that girl under 16 did not ,merely by reason of her
age , lack legal capacity to consent to contraceptive advice by doctor. It was also held that having regard to
the reality that a child became increasingly independent as it grew older and parental authority dwindled
correspondingly, the law did not recognize any rule of absolute parental authority until a fixed age; parental
rights were recognized by the law only as long as they were needed for the protection of the child and
rights yielded to the child’s right to make own decision when he reached a sufficient understanding and
intelligence to be capable of making up his own mind.

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CHAPTER 3: LIMITATION ON THE SCOPE OF
VOLENTI NON FIT INJURIA-RESCUE CASES

The scope of the application of doctrine of volenti non fit injuria has been curtailed:-
a) In rescue cases
b) By the Unfair Contract Terms Act,1977(England)
In spite of the fact that the plaintiff has consented to suffer the harm, he may still ne entitled to his action
against the defendant in these exceptional situations.

RESCUE CASES
Rescue Cases form an exception to the application of the doctrine of volenti non fit injuria. 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 defence of volenti non fit injuria.
Haynes v. Harwood is an important authority on the point. In that case, the defendants’ servant left a horse
van unattended in a street. A boy threw a stone on the horses and they bolted, causing grave danger to
women and children on the road. A police constable, who was on duty inside a nearby police station, so , on
seeing the same, managed to stop the horses, but in doing so he himself suffered serious personal injuries. It
being a rescue case, the defence of volenti non fit injuria was not accepted and the defendants were held
liable. Greer,L.J. adopting the American rule said that “the doctrine of the assumption of risk does not
apply, where the plaintiff has, under an exigency face a risk, even of 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.” However, a person who is injured in an attempt to stop a horse which creates no
danger will be without remedy.
Wagner v. International Railway is an American authority on the point. there, a railway passenger, was
thrown out of a running railway car due to the negligence of the railway company. When the car stopped, his
companion got down and went back to search for his friend. There was darkness, the rescuer missed his
footing and fell down from the bridge resulting in injuries to him. He brought an action against the railway
company. It was held that it being a case of rescue, the railway company was liable. Cardozo, J. said :
“Danger invites rescue. The cry of distress is the summons to relief. The law does not ignore those reactions
in tracing conduct to its consequences. It recognizes them as normal. The wrong that imperils life is a wrong
to the imperiled victim : it is a wrong also to the rescuer…the risk of rescue if only it is not wanton, is born
of the occasion. The emergency begets the man. The wrongdoer may not have foreseen the coming of a
deliverer. He is accountable as if he had.
Baker v. T.E. Hopkins &Sons is another illustration on the point. In the case due to the employer’s
negligence, a well was filled with poisonous fumes of a petrol driven pump and two of his workmen were
overcome by fumes. Dr Baker was called but he was not told to enter the well in view of the risk involved.
In spite of that, Dr Baker preferred to go into the well with a view to make an attempt to help the two
workmen already inside the well. He tied a rope around himself and went inside, while two women held the
rope at the top. The doctor himself was overcome by the fumes. He was pulled from the well and taken to
the hospital. He , however, died on the way to hospital. The two workmen inside the well were already dead.
The doctor’s widow sued the workmen’s employers to claim compensation for her husband’s death. The
defendants pleaded volenti non fit injuria. It was held that the act the act of the rescuer was the natural and

8
probable consequence of the defendant’s wrongful act which the latter could have foreseen, and, therefore,
the defence of volenti non fit injuria not available. The defendants were, thus held liable.
Following Haynes v. Harwood ,William L.J. stated: “It seems to me that, when once it is determined that the
act of rescuer was natural and probable consequence of the defendant’s wrong doing, there is no longer any
room for the application the maxim volenti non fit injuria. It would certainly be a strange result if the law
were held to penalize to the courage of the rescuer by depriving him any remedy.”
When the defendant by his negligence has created danger to the safety of the person and he can foresee that
somebody else ,is likely to rescue that person out of danger, the defendant is liable to bothe the victim and
the rescuer. Each one of them can bring the action independently of the other. The right of the rescuer is not
affected by the defences which the defendant may be able to plead against the victim. “The right of the
rescuer is an independent right and is not derived from that act of victim. The victim may have been guilty
of contributory negligence…. Or his right may be excluded by contractual stipulation, but still the rescuer
can sue.”
It may be noted that the same principle may apply when somebody by his negligence puts himself in danger
rather than any third person. If, for instance, A, by his own wrongful act creates a situation which endangers
A himself and the circumstances are such that he can expect that somebody else will come to his rescue, a
will be liable to the rescuer. It is not necessary that the rescuer should be called for help for the person or the
person in danger wants to be rescued. He may even be an unwelcome helper. Thus, if a man jumps in to a
well in an attempt to commit suicide and is rescued by another person, who gets injured in that process, the
unwelcome rescuer will be entitled to claim compensation. The position was thus explained by Barry, J.:
“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 liable in law for any
injury caused to someone whom he ought to have foreseen would attempt to come to his aid.” In such a case,
the right of the rescuer against the person rescued is based on the ground that the latter had by his negligence
created a danger which demanded rescue. If, however, the person rescued is not at fault in creating the
dangerous situation , he cant be sued for any injury which the rescuer might suffer.
Sometimes, the question arises is, does the rule in Haynes v. Harwood apply in cases of rescue of property?
The question was answered in the affirmative in Hyett v. Great Western Railway Co. In that case, the
plaintiff was injured in an attempt to save the defendant’s railway car from fire which had occurred dur to
the negligence of the defendant. The plaintiff’s conduct was considered to be reasonable and on the basis of
the doctrine of Haynes v. Harwood which was applied in this case, the defendant was held liable.
Another question which generally arises in rescue cases is: Is the act of intervention by the rescuer novus
actus interveniens, which breaks the chain of causation so that the initial negligence of the defendant be
considered to be a remote cause of the rescuer’s injury? The question had arisen in the case of Haynes v.
Harwood itself; it was held that the act of the rescuer was not such an act which could make the defendant’s
negligence remote cause of the damage. If the defendant can foresee that his negligence can create a
situation where somebody may come forward for rescue , the act of the defendant is proximate cause of the
consequences. According to Greer. L. J., “If what is relied upon novus actus interveniens is alleged takes
place, the principle embodied in the maxim is no defence. The whole question is whether the accident can be
said to be ‘the natural and probable result’ of the breach of duty. Though there is no legal duty to intervene ,
yet “the law does not think so meanly of mankind as to tell it otherwise that a natural and probable
consequence of a helpless person being put in danger that some able -bodied person should expose himself
to the same danger to effect a rescue.” It therefore, depend on the facts of a particular case whether, what is
considered to be an intervening cause, could have been foreseen by the defendant or not. If the defendant
could foresee that, is act is not remote.5

5
Dr R K Bangia, “Law of Torts”, Allahabad Agency 24th edn., 2017,Pg No. 39
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CHAPTER 4: UNFAIR CONTRACT TERMS ACT 1977
(ENGLAND)
The Unfair Contract Terms Act 1977 (c 50) is an Act of Parliament of the United Kingdom which
regulates contracts by restricting the operation and legality of some contract terms. It extends to nearly all
forms of contract and one of its most important functions is limiting the applicability of disclaimers of
liability. The terms extend to both actual contract terms and notices that are seen to constitute a contractual
obligation. 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. For the purposes of this Part of this Act,
“negligence” means the breach-

(a) of any obligation, arising from the express or implied terms of a contract, to take reasonable care or
exercise reasonable skill in the performance of the contract;

(b) of any common law duty to take reasonable care or exercise reasonable skill (but not any stricter duty);

(c) of the common duty of care imposed by the Occupiers’ Liability Act 1957 or the Occupier’s Liability
Act (Northern Ireland) 1957.

(2) This Part of this Act is subject to Part III; and in relation to contracts, the operation of sections 2 to 4 and
7 is subject to the exceptions made by Schedule I.

(3) In the case of both contract and tort, sections 2 to 7 apply (except where the contrary is stated in section
6(4)) only to business liability, that is liability for breach of obligations or duties arising-

(a) from things done or to be done by a person in the course of a business (whether his own business or
another’s); or

(b) from the occupation of premises used for business purposes of the occupier;
and references to liability are to be read accordingly [but liability of an occupier of premises for breach of an
obligation or duty towards a person obtaining access to the premises for recreational or educational
purposes, being liability for loss or damage suffered by reason of the dangerous state of the premises, is not
a business liability of the occupier unless granting that person such access for the purposes concerned falls
within the business purposes of the occupier].

(4) In relation to any breach of duty or obligation, it is immaterial for any purpose of this Part of this Act
whether the breach was inadvertent or intentional, or whether liability for it arises directly or vicariously.6

Section 2 of the act contains the following provision 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 person exclude or restrict his liability for death or personal injuries resulting
from negligence.
6
https://www.legislation.gov.uk/ukpga/1977/50/contents

10
(2) In the case of other loss or damage, a person cannot so exclude or restrict his liability for negligence
except insofar as the term or notice satisfies the requirement of reasonableness.
(3) When a contract term or notice purports to exclude or restrict liability for negligence , a person’s
agreement to do or awareness of it is not 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 injuries
resulting from negligence, by making a contract or giving a notice to that effect. It means that even if the
defendant has procured the plaintiff’s consent (by an agreement or 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 damaged 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 risk must also be
proved.7

7
Dr. R K Bangia, “Law of Torts”, Allahabad Agency,24th edn.,2017, Pg. No.40
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CHAPTER 5: LANDMARK JUDGEMENTS ON
LIMITATIONS OF VOLENTI NON FIT INJURIA

In the case of Lane v Holloway,8 the defendant, aged 23, owned a cafe close to where the
claimant lived. The cafe was frequented by youths late at night. The claimant objected to the
behaviour of the youths and the relations between the two were strained. One night, the claimant
shouted abuse at the defendant's wife from outside their house. The defendant got up and went
outside. The claimant, thinking he was about to be hit, punched the defendant. The defendant then
struck the claimant in the eye, as a result of which he received eighteen stitches. It was held that
neither volenti non fit injuria nor extur pi causa non oritur actio applied and the plaintiff was
entitled to full compensation for the injury.

In the case of Wheeler v. New Merton9 Board Mills Ltd., the defendants installed in their factory
- as part of the plant with the intention that it should be used by their employees - a dangerous
machine which was not fenced or guarded as required by the Factory and Workshop Act 1901.
Owing to the condition of the machine the plaintiff, a workman in the employment of the
defendants, was injured by it in the course of his work. It was found that it was not by the
negligence of the defendants but of their foreman that the machine had been allowed to be used in
the condition in which it was at the time of the accident. It was held by the trial judge that the
defence of volenti non fit injuria had no validity against an action based on breach of statutory
duty.

In Dann v. Hamilton,10 the claimant was injured when she was a willing passenger in the car
driven by the Mr Hamilton. He had been drinking and the car was involved in a serious crash
which killed him. In a claim for damages the defendant raised the defence of volenti non fit
injuria in that in accepting the lift knowing of his drunken condition she had voluntarily accepted
the risk. The defence was not given and the claimant was entitled to damages.

In Kirkham v. Chief Constable of Greater Manchester,11 Mr Kirkham was an alcoholic and

suffered from depression. He had made two suicide attempts. He was admitted to hospital but
discharged himself the following day. At home, he became violent. The police was called. His wife
informed them of the whole situation and it was agreed that he should be remanded in custody for
his own safety. However, the police failed to inform the prison authorities that Mr. Kirkham was a
suicide risk. He committed suicide whilst on remand at Risley Remand Centre. His wife brought an
action based on the negligence of the police in failing to pass on the information. The defence of
volenti non fit injuria was not given to the police as the officers owed a greater duty of care and
they had breached that duty; so the maxim was not applicable.

8
(1967) 3 ALL ER 999(HL)
9
(1993) 2 KB 297
10
(1939) 1 KB 509
11
(1990) 2 QB 283
12
In Videan v. British Transport Commission , A 2 year old child was trespassing on a train track as a train
was approaching. The stationmaster, and father of the child, attempted to save the child. The child was
injured, however the stationmaster was killed. The stationmaster’s estate’s claim for death succeeded, but
the child’s claim for mental and physical injury failed. The reasoning behind the decision was that the rescue
was foreseeable. The child shouldn’t have been there, he was trespassing. The child’s claim may today
succeed due to the Occupier’s Liability Act 1984.

CHAPTER 6: CRITICAL ANALYSIS OF HAYNES V.

HARWOOD

FACTS:

 The defendants were the owners of a two-horse van which was being driven by their servant, a man
named Bird, on August 24, 1932. The business on which he was engaged on behalf of his
employers took him into Quiney’s Yard and Quiney’s Wharf on the left-hand side of Paradise
Street, Rotherhithe. Bird, who had in the van two horses, one, a mare on the left or near side, the
other, a gelding on the right or off side, had to go to the wharf and there unload goods. His van was
provided with a chain which, when properly put in position, operates as a drag on the near back
wheel of the van.
 As there is a slope down from the road to the wharf it is usual to put the drag on, and, according to
Bird’s evidence, he did that on this occasion. When he had finished his unloading, Bird had to get a
receipt, but instead of waiting where he was for this, he, out of consideration for the wharf owners,
who wanted to go on with their work by receiving another van to unload at their wharf, took his
two horses and the van out into Paradise Street, and left them standing on the left-hand side of the
street facing in the direction of the police station, while he went to get his receipt.
 In his evidence he said there was no room in the yard for his to have left his van and horses there.
Two boys were coming along, and one of them, obviously with a mischievous propensity, threw a
stone at the horses which caused them to run away. The horses ran a considerable distance without
any one interfering with them until they got opposite the police station, where the plaintiff was in
the charge room
 Seeing what was happening, he came out into the street and there saw a woman who was in grave
danger if nothing was done to rescue her; he also saw a number of children who would be in grave
danger if nothing was done by him to arrest the progress of the horses. At great risk to his life and
limb, he seized the off- side horse and tried to stop them both. After going about fifteen yards, he
succeeded in doing so, but unfortunately one of the horses fell upon him, with the consequence that
he suffered serious personal injuries.
 The nature of the street in which the two horses were left. A little way to the left of Quiney’s Yard,
on the opposite side of the road, are certain tenement dwellings, and just opposite Quiney’s Yard
there are dwelling-houses. Coming along on the same side as were the horses and van, one finds a
church, a school entrance, and a number of houses which, having regard to the locality, are
probably
 Altogether there are three schools in this neighbourhood, and that between 4 and 5 o’clock in the
afternoon there are always many children about. It was in this kind of place the defendant’s driver
chose to leave his vehicle.

ISSUES RAISED:

13
 The issues raised in this case is as follows:

When someone knowingly puts himself or herself in danger to protect others, is the negligent party
liable for damages suffered in the protection effort?

JUDGEMENT:

The horse owner was liable. It was foreseeable that if a horse was let loose in a crowd, somebody,
particularly a policeman under a general duty to assist, would attempt to capture it and might be
injured in the process. The defendant could not raise a plea of volenti non fit injuria in this case.
His action was an errand of mercy, and it was by reason of that activity that he fell within the
categories of persons for whom the defendant owed a duty of care.
Greer LJ said: ‘It is not necessary to show that this particular accident and this particular damage
were probable; it is sufficient if the accident is of a class that might well be anticipated as one of
the reasonable and probable results of a wrongful act’

REASONS:

The court held that in cases such as these , volenti non fit injuria maxim does not apply. If someone
acts to help those in danger as a result of a person’s negligent actions, that person is liable for
damages resulting from their actions as long as they are reasonable in circumstances. Taking risk
upon yourself is not applicable in rescue commitment.

 CRITICAL ANALYSIS.

It is said for the defendants that the plaintiff is in law without remedy, and in support of this contention
certain reasons are given. Before dealing with those, however, it would be a little surprising if a rational
system of law in those circumstances denied any remedy to a brave man who had received his injuries
through the original default of the defendant’s servant.

It was said that there was no evidence of negligence on the part of the defendant’s driver; secondly,
assuming there was some evidence of negligence, the accident happened through the intervention of some
consciously acting persons between the wrongful conduct of the defendant’s driver and the accident; in other
words that there was a novus actus interveniens, and therefore the chain of causation between the cause of
the accident and the damages was broken and the plaintiff’s claim cannot be sustained. It was said, thirdly,
that quite apart from, and independently of, that question the plaintiff himself assumed the risk which he ran
and took the risk upon himself, and therefore as the damage he suffered was the result of his own act, he
cannot recover. That again is conveniently put into the Latin phrase, “volenti non fit injuria.”

Negligence in the air will not do; negligence, in order to give a cause of action, must be the neglect of
some duty owned to the person who makes the claim. In the case, if the duty was owed to, among others, the
plaintiff- if he is one of a class affected by the want of care of the negligence of the defendants that is
negligence of which the plaintiff can avail himself as a cause of action. What is the negligence complained
of here? Mr. Hilbery rightly described it as a failure to use reasonable care for the safety of those who were
lawfully using the highway in which this van with the two horses attached was left unattended. There is no
doubt that a policeman-or indeed any one, and still more a policeman, using the highway for the purpose of
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stopping a runaway horse and thereby preventing serious accidents and possibly preventing loss of life, is
within the category of those lawfully using the highway.

Accordingly, I think the first point fails. Of course it does not follow that in all circumstances it is
negligence to leave horses unattended in a highway; each case with all its circumstances has to be
considered; but the circumstances which make it quite clear that the defendants servant was guilty of want of
reasonable care in leaving his horses unattended are that this was a crowded street in which many people,
including children, were likely to be at the time when the horses were left and before the defendants’ servant
could get back to them. The defendant’s servant had been frequently in the neighbourhood; he had often
delivered goods at Quiney’s wharf; and he must be taken to know something of the character of the
neighbourhood, although he denied any knowledge of schools being there. To leave horses unattended, even
for such a short time as three minutes, in a place where mischievous children may be about, where
something may be done which may result in the horses running away, seems to me to be negligent-having
regard to the proved circumstances.

The next point involves a consideration of the maxim “novus actus interveniens,” but before dealing with
the authorities I wish to point out that it is not true to say that where a plaintiff has suffered damage
occasioned by a combination of the wrongful act of defendant and some further conscious act by an
intervening person, that of itself prevents the Court coming to a conclusion in the plaintiff’s favour if the
accident was the natural and probable consequence of the wrongful act. That seems to me to be the
necessary result of the decided cases which are accepted as authorities.

In Lynch v. Nurdin [(1841) 1 Q.B. 29], the facts were these: the defendant left his horse and cart in the
roadway, where he had a right to leave it. Probably he had left it there for a much longer period than the
period in this case, but if it is negligent to leave it for one hour it seems to me it may be negligent, though in
a less degree, to leave it for three or five minutes. In the road where the defendant left his cart there were a
number of children who began to play with the horse and cart; one of them jumped on to the carts; another
of them wrongfully set the horse in motion whereby the plaintiff, who was the child upon the cart, was
injured. Undoubtedly there was there a novus actus interveniens – namely, the misconduct of the boy who
started the horse; but it was held that none the less the accident, and the damage, could be treated as a result
of the defendant’s wrongful act, because it was to be anticipated that children would do mischievous things,
and that any one who invites or gives an opportunity to mischievous children to do a dangerous thing cannot
escape liability on the ground that he did not do the wrong but that it was done by the mischievous children.
The law as there laid down has been accepted since 1841, and is by itself sufficient to decide the question
that there is no absolute rule that an intervening act of some third person who is not the defendant is in itself
enough to break the chain of causation between the wrongful act and the damage and injury sustained by the
plaintiff.

If what is relied upon as novus actus interveniens is the very kind of thing which is likely to happen if the
want of care which is alleged takes place, the principle embodied in the maxim is no defence. The whole
question is whether or not, the accident can be said to be “the natural and probable result” of the breach of
duty. If it is the very thing which ought to be anticipated by a man leaving his horses, or one of the things
likely to arise as a consequence of his wrongful act, it is no defence; it is only a step in the way of proving
that the damage is the result of the wrongful act.

There can be no doubt in this case that the damage was the result of the wrongful act in the sense of being
one of the natural and probable consequences of the wrongful act. It is not necessary to show that this
particular accident and this particular damage were probable; it is sufficient if the accident is of a class that
might well be anticipated as one of the reasonable and probable results of the wrongful act.
The third ground was that the principle of volenti non fit injuria applied. On this there is very little actual
authority in the country and no actual decision of the Court of Appeal. There is, however, a wealth of
authority in the United States, and one of the cases, which is quite sufficient to show what the American law
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is, has been cited to us – namely, Eckert v. Long Island Railroad Co. [43 N.Y.502]. The effect of the
American cases is, I think, accurately stated in Professor Goodhart’s article to which we have been referred
on “Rescue and Voluntary Assumption of Risk” in Cambridge Law Journal, vol. V., p. 192. In accurately
summing up the American authorities and stating the result of Eckert case the learned author says this
(p.196):
The American rule is that the doctrine of the assumption of risk does not apply where the plaintiff has, under
an exigency caused by the defendant’s wrongful misconduct, consciously and deliberately faced a risk, even
of death, to rescue another from imminent danger of 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.
In judgment that passage not only represents the law of the United States, but it also accurately represents
the law of this country. It is, of course, all the more applicable to this case because the man injured was a
policeman who might readily be anticipated to do the very thing which he did, whereas the intervention of a
mere passerby is not so probable.

If certain observations are considered in Cutler v. United Dairies (London), Ltd.it may be said at once that
the decision in that case has no bearing on the question we have to determine. The decision related to facts
as to which it could not be said that the injured man was doing what he did in order to rescue anybody from
danger; he was doing no more than this, assisting the defendant’s servant in the defendant’s work in
pacifying the horse in the field. With the decision in that case, on the proved facts, no one can quarrel; it was
absolutely and entirely right; but observation made, both by Scrutton L.J. and Slesser L.J. give occasion to
some difficulty. Scrutton L.J. said this;

I now come to the more serious point in the case. I start with this: A horse bolts along a highway, and a
spectator runs out to stop it and is injured. Is the owner of the horse under any legal liability in those
circumstances? On those facts it seems to me that he is not. The damage is the result of the accident. The
man who was injured, in running out to stop the horse, must be presumed to know the ordinary
consequences of his action, and the ordinary and natural consequence of a man trying to stop a runaway
horse is that he may be knocked down and injured. A man is under no duty to run out and stop another
person’s horse, and, if he choose to do an act the ordinary consequence of which is that damage may ensue,
the damage must be on his own head and not on that of the owner of the horse.
That observation is certainly obiter; but of course, any observation made by Scrutton, L.J. is entitled to very
great weight, whether it is or is not obiter. In making that observation, however, there is no point of thinking
Scrutton, L.J.’s mind was directed to the circumstances we have here, of somebody running out for the
purpose of rescuing or protecting people is danger of being injured by a runaway horse. It is expressed,
unfortunately, too widely, and has led to a misunderstanding. I agree to this extent, that the mere fact of a
spectator running out into the road to stop a runaway horse will not necessarily entitle him to succeed in an
action for the consequential damage. All the circumstances must be considered, and if his act is one which
everybody would expect from a normally courageous man, doing what he does in order to protect other
people, I do not think the observation, if it is intended to cover that case, accurately represents the law of this
country. Slesser L.J. preferred to put his judgment on the other principle that the rule as to novus actus
interveniens applied. It obviously did apply in that particular case, but it does not follow that it applies in
every case because it applied in that particular case.

If the matter is considered from the point of view of principle, and from that point of view I think it is quite
immaterial whether the policeman acted on impulse or whether he acted from a sense of duty to do his best
to prevent injury to people lawfully using the highway. If it were necessary to find that he acted on impulse,
there is ample evidence of that in his own evidence that he did it on the spur of the moment; but I do not
think that is essential. 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 sudden impulse without thinking whether he should do so or not.

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CONCLUSION

The maxim of “volenti non fit injuria” which states that 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 suffers harm, he is not
allowed to complain for that and his consent serves as a good defence against him. No man can enforce a
right which he has waived.
But there are certain limitations on the scope of volenti non fit injuria. The application of the doctrine has
been curtailed in rescue cases and by the Unfair Contract Terms Act, 1977(England).
In rescue cases, when the plaintiff voluntarily encounters risk to rescue somebody from an imminent danger
created by the wrongful act of the defendant, he cannot be met with the defence of the doctrine ofvolenti non
fit injuria. One of the landmark judgement in this regard is, Haynes v. Harwood.
Another limitation on the doctrine is put by the Unfair Contract Terms Act, 1977. It limits the right of a
person to restrict or or exclude his liability from his negligence by a contact term, or by notice.

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BIBLIOGRAPHY

WEBSITES:
https://www.studentlawnotes.com/haynes-v-harwood-1935-1-kb-146
https://dullbonline.wordpress.com/2017/06/25/haynes-v-harwood-1935-1-k-b-146/
https://www.legislation.gov.uk/ukpga/1977/50/contents

https://www.studentlawnotes.com/haynes-v-harwood-1935-1-kb-146

BOOKS:

 Bangia, Dr. R. K., “Law of Torts”, Allahabad Law Agency, 24th edn.2017

 Singh, Justice G. P., Ratanlal &Dhirajlal’s The Law of Torts”, LexisNexis Butterworths Wadhwa,
Nagpur, 28th edn. 2019

 Rogers, W V H, “Winfield amd Jolowicz on Tort”, Sweet & Maxwell Limited, London, 19th edn.,
2016

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