law of torts

ASSIGNMENT

FACULTY OF LAW
SESSION: 2021-2022
ASSIGNMENT TOPIC: AN ANALYSIS OF MAXIM VOLENTI
NON FIT INJURIA
COURSE & SEMESTER: B.A. L.L.B. (FIRST SEMESTER)
PRESENTED BY: RITIK ANAND
ROLL NUMBER: 21225BLT060
PRESENTED TO: DR. KABINDRA SINGH BRIJWAL
 Acknowledgement

First and foremost, I would like to record my sincere thanks to faculty of

law, Banaras Hindu University for bestowing upon me this golden
opportunity to explore and present my understanding of a legally
pertinent and crucial topic of:
“An analysis of maxim Volenti Non Fit Injuria”
This assignment surely would prove to be a great boon towards my
comprehension of the subject and would augment well in broadening my
horizons regarding the same.
I am also greatly indebted to respected faculty member Dr. Kabindra
Singh Brijwal, without whose pivotal support, culmination of this project
would be near impossible. The tedious job done by him in teaching and
helping me at every step is very much commendable. I offer my sincere
gratitude to him for this great act of kindness and for being my constant
source of inspiration and motivation.
 INDEX

Content Page Number

Cover page 1
Acknowledgement 2
Introduction 4
The doctrine: Meaning and principles 5
Essential elements of Volenti Non Fit Injuria 6
Limitations on the scope of the doctrine 8
Differences between Volenti Non Fit Injuria
and Contributory negligence 10
Conclusion 11
Bibliography 12
 Introduction

Legal Maxims as an established principle of law have always formed an

essential part of legal jurisprudence. Francis Bacon in his work "The
Elements of the Common Laws of England" observes, “Not only the use of
maxims will be "in deciding doubt and helping soundness of judgment, but, further,
in gracing argument, in correcting unprofitable subtlety, and reducing the same to a
more sound and substantial sense of law, in reclaiming vulgar errors, and, generally,
in the amendment in some measure of the very nature and complexion of the whole
law”.

Similar to many other legal maxims, Volenti Non Fit Injuria too
finds its foundations within treatises of Roman law. It was originally
formulated by the Roman jurist Ulpian as: “Nulla iniuria est, quæ in
volentem fiat”, which literally translates to: “No injury is committed
against one who consents.”
Volenti Non Fit Injuria features prominently among the general
defences available in the legal codes, including law of torts. It is
considered to be the embodiment of the principle of “Harm suffered
voluntarily does not constitute a legal injury and hence, is not
actionable”. It is invoked to prevent a plaintiff from bringing an
prosecutable charge against the defendant for an action, which plaintiff
had given prior consent for, out of his free will, with reasonable
foreseeability and required knowledge. Hence, Volenti Non Fit
Injuria is considered a complete defense with few exceptions to its
application.
 The doctrine: Meaning and principles

‘Volenti Non Fit Injuria’ [Latin: ‘to the consenting, no injury is

done’ ] is a common law doctrine which states that if someone
willingly places himself/herself in a position, which might result in
legal injury or harm to self, being fully aware of the impending risk, he
would lose his right for legal remedy regarding the same.
Volenti Non Fit Injuria is often described as “voluntary assumption
of risk” and features prominently in laws relating to consent, as a general
defence. It sets a person free from the liability of a crime or a tort
committed against another person, who had given his prior consent for
the same. Salmond, in his work “Torts”, also reinforces this principle
and quotes, “No man can enforce a right which he voluntarily waived or
abandoned.”
Sections relating to consent in Indian Penal Code, i.e. 87-92 also exhibit
the principle of Violenti Non Fit Injuria and state, “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.”
 Essential elements of Volenti Non Fit Injuria

Application of Violenti Non Injuria primarily depends upon the

consent of plaintiff and the determination of what accounts for his
consent. Hence, the essential elements required for the application of
this maxim as a general defence are:

Consent must be expressed or implied

Application of Volenti Non Fit Injuria requires communication of
consent from plaintiff through either explicit expression or from
implication or inference of the general conduct of the plaintiff.
In Hall vs Brooklands Auto Racing club (1932) All E.R. Rep. 208: (1932) 1
K.B. 205, The plaintiff was a spectator at a motor 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. Though there was no expressed consent from the side of plaintiff, the
court ruled that by buying a ticket and being a spectator of the race, the plaintiff
impliedly took the risk of such injury, as the danger inherent in the sports could be
foreseen by any reasonable person. Hence, the defendant wasn’t held liable.

Consent must be free

For availability of Volenti Non Fit Injuria, it is necessary to show that
consent given by the plaintiff for defendant’s act was through free will.
Consent obtained by fraud, under compulsion or under some mistaken
impression is considered nullified. Moreover, it is required by the law to
furnish adequate information regarding the nature of the act to the
plaintiff, prior to giving consent, who should be competent enough to
consent.
In case the consent of a person is not free, the defendant cannot claim
this defence to escape liability and he will be held liable for damage
caused.
In R. vs. Williams (1923) 1 K.B. 340, the defendant, a music teacher, through
fraud and manipulation convinced his 16 years old girl student into giving her
consent for sexual intercourse with him, under the pretence that his act was an
operation to improve her voice. The defence of volenti fit injuria was nullified and
the defendant was charged with rape.
In Bowater vs Rowlery Regis Corporation (1944) K.B. 476, 479, per Scott.
L.J., the claimant, a carter, was an employee of the defendants and collected road
sweepings for them. He was ordered to take out a horse which had run away on
previous occasions before. Both, the employee and the employers were aware of the
fact. Carter protested but eventually followed the order. Several weeks later, the
horse ran away and the carter got injured as a result. Therefore, he brought an action
against his employer for negligence and claimed damages. The Court held that the
corporation negligently breached their duty to provide safe horse for their employee.
It was further found that the defence of volenti non fit injuria was not applicable to
the case.
Scott L.J. famously noted, “A man cannot be said to be truly “willing” unless he is in
a position to choose freely, and freedom of choice predicates, not only full knowledge
of the circumstances on which the exercise of choice is conditioned, so that he may be
able to choose wisely, but the absence from his mind of any feeling of constraint so
that nothing shall interfere with the freedom of his will.”

There should be knowledge as well as consent

For the maxim Volenti Non Fit Injuria to apply, two points have to
be proved:
1. The plaintiff knew the risk is there
2. He, knowing the same, agreed to suffer the harm

Mere knowledge of the act also doesn’t imply assent and is not a
conclusive defence in itself. Only when it is a knowledge under
circumstances that leave no inference open but one, namely, that the risk
has been encountered, the defence is complete.
In Smith v Baker & Sons [1891] AC 325, The plaintiff was employed by a
railway company to drill holes in a rock, near a crane, operated by men employed by
the railway company. The crane lifted stones and at times swung them over the
plaintiff’s head without warning. The plaintiff was fully aware of the danger he was
exposed to by working near the crane. One time, a stone fell off the crane and injured
the plaintiff. He sued his employers for negligence. The court held that the mere fact
that the plaintiff undertook or continued employment with the full knowledge that
there is danger arising out of another activity in the workplace, is not enough to show
that maxim volenti non fit injuria is applicable. Hence, the defendants were held
liable for negligence.
In the words of Lord Watson, “When the acceptance or non-acceptance of the risk
is left to implication, the workman cannot reasonably be held to have undertaken it
unless he knew of its existence and had means of appreciating its danger. But
assuming that he did so, I am unable to accede to the suggestion that the mere fact of
continuing at his work, with such knowledge and appreciation, will in every case
necessarily imply his acceptance.”
 Limitations on the scope of doctrine

Rescue Cases
Rescue cases are considered as an exception to the legal doctrine of
Volenti Non Fit Injuria. If the plaintiff has, under an exigency caused
by the defendant’s wrongful act, consciously or deliberately faced a risk,
he cannot be met with the defence of Volenti Non Fit Injuria and
deprived of his remedy.
In Haynes vs Harwood (1935) 2 Q.B. 264, the plaintiff was a police constable
on duty inside a police station, located in a busy street, often attended by many
people, including children. The defendants owned a two-horse van which was left
unattended by its driver in the same street. The driver had put a chain on one of the
wheels of the van that was subsequently broken. For some reason, supposedly
because a stone was thrown at the horses, they bolted along the busy street alongside
with the van. The police constable saw them from the police station, got out and
managed to stop them but sustained injuries, in respect of which he claimed
damages. The court ruled that it being a ‘rescue case’, the defence of violenti non fit
injuria was nullified and the defendant was held liable.

Illegal acts
If the consent is given for an act which is not allowed by law, then even
on the fulfilment of all the essential conditions of this defence, the
liability cannot be escaped and thus in such cases, this defence becomes
inoperative. Hence, a person doesn’t have the right to exclude his
liability for illegal acts, such as those resulting in death, despite having
entered into contract and procurement of consent from the affected
person.
In Lane vs Holloway, (1967) 3 All ER 129 : (1967) 3 WLR (CA) 1003 , 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 neighbours were strained. One night the
Claimant shouted abuse at the Defendant's wife from outside their house. The
Defendant, who was in bed at the time got up and went outside in his night gown.
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 the punch the Claimant
received 18 stitches and required surgery. The Claimant brought an action for
damages. 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.

Negligence of the defendant

The defence of Volenti Non Fit Injuria is not available in a case
where the defendant has been negligent and the act done isn’t neccsarily
same as the act for which consent was given.
In the case of Slater v. Clay Cros Co. Ltd. (1956) 2 QB 264, the plaintiff was
hit by a train in the tunnel of the defendant railway company. The railway company
had given instructions to all the drivers of its trains that they have to blow the whistle
at the entrance of the tunnel and they should also slow the speed of the train but the
driver did not follow these instructions and negligently drove it inside the tunnel, as
a result, the plaintiff was injured. The defendant had taken the defence of volenti non
fit injuria but the Court held that this defence could not be applied because even
though the plaintiff took the risk of walking inside the tunnel, this risk was enhanced
by the negligence of the driver. Thus, when a plaintiff gives his consent to take some
risk, there is a presumption that the defendant has not been negligent.

Breach of statutory authority

The legal maxim of Volenti Non Fit Injuria is also not applicable
when there has been a breach of statutory authority.
In Wheeler vs New Merton Board Mills Ltd. (1933) 2 KB 669 , The
defendants installed a new machine into their factory. The machine did not have
proper safety guards attached to it, as it should have under the Factory and
Workshops Act 1901. Due to its unsafe state, the claimant was injured by the
machine whilst working. The defendants argued that since the claimant had used the
machine willingly, that a consent defence applied. The Court held that the doctrine of
volenti non fit injuria was not a defence to a personal injury claim against an
employer arising from the breach of a statutory duty on the part of the employer.
Thus, the employer’s liability for the injury was upheld.
 Differences between Volenti Non Fit Injuria and
Contributory negligence

The Differences between the Volenti Non Fit Injuria and

Contributory negligence are as follows:

1. Volenti Non Fit Injuria is a complete defence, while contributory

negligence is a defence based upon the proportion of defendant’s fault in
the matter.

2. In contributory negligence, plaintiff as well as the defendant, both are

negligent. While in Volenti Non Fit Injuria, the plaintiff voluntarily
partakes in the action. Moreover, negligence of defendant would entirely
rule out the application of Volenti Non Fit Injuria.

3. In case of Volenti Non Fit Injuria, the plaintiff is aware of the act
and the harm being suffered while in contributory negligence he did not
have any knowledge about the act although he ought to have known it.
 Conclusion

The legal maxim Volenti Non Fit Injuria posits itself as a complete
defense in the field of legal jurisprudence. It centres itself primarily
around the consent given by the plaintiff to absolve the liability of
defendant for an action, which otherwise could have been tortious or
prosecutable in a court of law.
This maxim comes in play only when all of its essentials are present in
the strict sense, that is, an agreement is reached after defendant obtains
plaintiff’s consent either in expressed or implied form, made through
free will, based on the adequate knowledge provided by the defendant
prior to the grant of consent. Failing to meet any of these, could nullify
the defence provided by Volenti Non Fit Injuria.
Moreover, it is also pertinent to note that despite meeting all of these
requirements, it is possible that its application may be curtailed by the
several restrictions placed upon it to limit its scope and allow for a more
reasonable dispense of justice.
Conclusively, the defence of Volenti Non Fit Injuria is the one of
limited application in legal jurisprudence. Nevertheless, its applications
of consent and attribute of complete absolvement of liablity, makes it a
great provision of legal defence.
 Bibliography

1. Bacon, Francis; "The Elements of the Common Laws of England", The

Works of Francis Bacon, Lord Chancellor of England, Volume 3;
Murphy; The Ohio State University, 1887
2. Ulpian; Digest, Book 47, title 10, section 1 § 5, On the Edict, Bk. 56
3. Salmond, John William; “Torts”, 14th edition, Sweet & Maxwell, 1965
4. Sections 87-92, Indian Penal Code
5. Winfield, Sir Percy Henry; Jolowicz, John Anthony; “Tort”; 8th edition,
Sweet & Maxwell: London, 1967
6. Bangia, Dr. R. K.; “Law of Torts”, 26th edition, Allahabad Law agency,
Faridabad, 2021
7. Singh, Justice G. P., “Ratanlal & Dhirajlal’s The Law of Torts”, 28 th
edition, LexisNexis Butterworths Wadhwa, Nagpur, 2019
8. Rogers, WVH; “Winfield and Jolowicz on Tort”, 17th edition, Sweet &
Maxwell Limited, London, 2006
9. McBride, Nicholas J, Roderick Bagshaw; “Tort Law”, first edition,
Pearson Education, Delhi, 2003
10. Pollock, Freiderick; “Law of torts”, 15th edition, Stevens & Sons,
London, 1951
11. Clerk, John Frederic; Lindsell, William Harry Barbe; “Clerk and
Lindsell on torts”, 23rd edition, Sweet & Maxwell Limited, London, 2021