Special Defence in Torts

(12) Leave and Licence— Volenti Non Fit Injuria

Voluntary Assumption of Risk
Harm suffered voluntarily does not constitute a legal injury and is not actionable.
This principle is embodied in the maxim volenti non fu injuria (where the sufferer is willing
no injury is done). A man cannot complain of harm to the chances to which he has exposed
himself with knowledge and of his free will. The maxim volenti non fit injuria is founded on
good sense and justice. One who has invited or assented to an act being done towards him
cannot, when he suffers from it, complain of it as a wrong.
,68 The maxim presupposes a tortious act by the defendant. The maxim
applies, in the first place, to intentional acts which would otherwise be tortious. A
trespasser, having knowledge that there are spring guns in a wood, although he may be
ignorant of the particular spots where they are placed, cannot maintain an action for an
injury received in consequence of his accidentally treading on the latent wire
communicating with the gun, and thereby letting if off,9 for he voluntarily exposes himself
to the mischief which happened. But a person, who climbs over a wall in pursuit of a stray
fowl and is shot by a spring gun, set without notice, can recover damages.
Consent to Surgical Operations and Participation in Games
The perfectly sound principle underlying this maxim volenti non fit injuria 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 a debt barred by the Statute of Limitations, or not
enforceable by reason of infancy, from getting his money back?! The application of the
maxim is not dependent upon any valid contract. So a minor who is capable of making a
reasonable assessment of the advantages and disadvantages of a treatment proposed by a
physician or a surgeon can give a valid consent. In Gillick v West Norfolk and Wisbeck Area
Health Authority? the House of Lords held that a girl under 16 did not, merely by reason of
her age, lack legal capacity to consent to contraceptive advice and treatment by a 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 recognise any rule of absolute parental authority until a fixed age; parental rights were
recognised by the law only as long as they were needed for the protection of the child and
such rights yielded to the child's right to make his own decisions when he reached a
sufficient understanding and intelligence to be capable of making up his own mind. To
avoid a claim for personal injury against a doctor, it is not necessary that the consent
should be informed consent meaning thereby an objective criterion of what is a sufficient
disclosure of risk to ensure that the patient is enabled to make an intelligent decision.
73 The English law
does not recognise this doctrine of informed consent and the test of liability in respect of a
doctor's duty to warn his patient of risks inherent in treatment recommended by
68. Smith v Baker & Sons, [1891] AC 225 (HL.).
69. Mott v Wilkes, (1820) 3 B & Ald 304. As a result of this case setting spring guns except
by night was made an offence 24 & 25 Vic c 95.
70. Bird v Holbrook, (1828) 4 Bin 628.
71. Bize v Dickason, (1786) 1 TR 285 (287).
72. Gillick v West Norfolk and Wisbech Area Health Authority, [1985] 3 All ER 402 (HL.)
11986] 1 AC
112, [1985] 3 WLR 830.
73. Sidaway v Bethlem Royal Hospital Governors, [1985] 1 All ER 543 (HL.).
him is the same as the test recommended for diagnosis and treatment, namely that the
doctor is required to act in accordance with a practice accepted at the time as proper by a
responsible body of medical opinion (74). As regards spectators at a game, the law has
been stated to be as follows:
“A person attending a game or competition takes the risk of any damage caused to him by
any act of a participant done in the cause of and for the purposes of the game or
competition notwithstanding that such act may involve an error of judgement or a lapse of
skill, unless the participant’s conduct is such as to evince a reckless disregard of the
spectator’s safety.” 75

The spectator takes the risk because such an act involves no breach of the duty of care
owed by the participant to him and not because of the doctrine expressed by the maxim
volenti non fit injuria. As regards participants in a sporting event, they may be held to have
accepted risks which are inherent in that sport, but this doesnot eliminate all duty of care
of the one participant to the other; the question whether there has been a breach of such
duty will depend upon a variety of circumstances and the rules of the sport may be one of
those circumstances, but they are neither definitive of the existence of the duty nor does
their breach necessarily constitute a breach of any duty. In a football match the
defendant's foul play resulted in the plaintiff breaking his leg. In a suit for damages, the
defendant was held liable on the finding that he was guilty of ‘serious and dangerous foul
play which showed a reckless disregard of the plaintiff’s safety and which fell far below
the standards which might be expected in any one pursuing the game’. (76)

Consent to run risk of actionable harm

The maxim applies, in the second place, to consent to run the risk of harm which would
otherwise be actionable. The maxim, be it observed, is not ‘scienti non fit injuria' but
‘volenti’. Knowledge is not a conclusive defence in itself. But when it is a knowledge under
circumstances that leave no inference open but one, namely, that the risk has been
voluntarily encountered, the defence is complete. It is necessary to prove that the person
injured knew of the risk, and voluntarily took it. Thus, a person willingly undertaking to do
work which is intrinsically dangerous, notwithstanding that care has been taken to make it
as little intrinsically dangerous as possible cannot, if he suffers, complain that a wrong has
been done to him.(77) But if there is negligence on the part of the employer and he fails in
his duty towards the employed it cannot be said that the employee is willing, and that the
employer should thus a towards him simply because he does not straightway refuse to
continue in service. Il the plaintiff servant is himself in default which leads to his injury, a
distinction may have to be drawn whether it is a case of negligence or volenti. If the
plaintiff’s default is the sole cause of the injury, he would not be entitled to succeed
whether l be a case of negligence or volenti, for it does not matter in the result whether
one says 100 per cent contributory negligence or volenti non fit injuria.(78) But in cases
where the plaintiff's default is partially responsible for the injury, he would succeed to
some extent if it is a case of negligence but not at all if it is a case of volenti. For example,
there is a world of difference between two fellow servants collaborating

Wooldridge v Sumner, [1962] 2 All ER 978 (CA).

Condon v Basi, [1985]2 All ER 453 (CA), p 455.
Smith v Baker & Sons, [1891] AC 325 (HL).
Imperial Chemical Industries v Shatwell, [1964] 2 All ER 999
carelessly so that the acts of both contribute to cause injury to one of them; and two
fellow servants combining to disobey an order deliberately though they know the risk
involved. In the first case only a partial defence of contributory negligence is available but
in the second case volenti non fit injuria is a complete defence if the employer is not
himself at fault and is only liable vicariously for the acts of the fellow servants.

Limitations upon Application of the Maxim

(1) Unlawful Acts

There are certain limitations to the application of this maxim. No consent, no leave or
licence can legalise an unlawful act, e.g. fighting with naked fists, a kicking match or a
duel with sharp swords. But the defendant's conduct should be reasonable. So, when the
plaintiff, an old man, challenged the defendant to fight and on his coming forward
menacingly, the plaintiff gave a punch to the defendant's shoulder who then gave a very
severe blow to the plaintiff’s eye with his fist, the injury needing nineteen stitches and an
operation, it was held that neither volenti non fit injuria nor ex turpi causa non oritur actio
applied and the plaintiff was entitled to full compensation for the injury

(2) Breach of Statutory Duty

The maxim has no validity against an action based on a breach of statutory duty. Thus, it is
no answer to a claim made by a workman against his employer for injury caused through a
breach by the employer of a duty imposed upon him by a statute. But where the negligence
or breach of statutory duty is on the part of an employee of the plaintiff who knowingly
accepts the risk flowing from such breach and the employer-defendant is not guilty of
negligence or breach of statutory duty, the defence of volenti non fit injuria is available to
the defendant. (81)

(3) Consequences of Wrongful Conduct

The maxim does not apply where the plaintiff has, under an exigency caused by the
defendant's wrongful conduct, 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. (82) The rescuer will not be deprived
of his remedy merely because the risk which he runs is not the same as that run by the
person whom he rescues. (83) This principle, which has been based upon a weight of
authority in America, has been adopted by the Court of Appeal in England. But where there
is no need to take any risk, the person suffering harm in doing so cannot recover.

(4) Cases of Negligence

Generally the maxim does not apply to cases of negligence. To cover a case of negligence
the defence on the basis of the maxim must be based on implied
79. Ibid.
80. Lane v Holloway, [1967] 3 All ER 129 (CA).
81. Imperial Chemical Industries Ltd v Shatwell, [1964] 2 All ER 999, [1965] AC 656.
82. Haynes v Harwood, [1935] 1 KB 146 (157).
83 Сhadwick v British Trasport Corporation, [1967] 2 All ER 945.
84. Cutler v United Diaries (London) Limited, [1933] 2 KB 297
Part 1-Chapter 4- Justification of Torts
agreement whether amounting to contract or now. (85) The defence is available only when
the plaintiff freely and voluntarily , with full knowledge of the nature and extent of the risk
impliedly agreed to incur it and to waive any claim for injury. Thus, there are several cases
where the driver of a vehicle gives a passenger a lift and, at the same time, gives
reasonable notice that he rides at his own risk. The passenger is bound by the notice and
he cannot claim. (86) Similarly when dangerous operations are in progress on land and are
apparent, and the owner gives a license permission, but at the same time gives him
reasonable notice that he comes at his own risk, again, he cannot claim. (87) But when the
plaintiff has no choice or when the notice is given at a stage when it is beyond the ability
of the plaintiff to make a choice, there can be no implied agreement and the defence on
the basis of the maxim must fail. (88)
The plaintiff, a police constable, was on duty inside a police station in a street where there
were a large number of people including children. Seeing the defendants runaway horses
with a van attached coming down the street, he rushed out and eventually stopped them,
sustaining injuries in consequence, in respect of which he claimed damages. It was held
that as the defendants must or ought to have contemplated that someone might attempt to
stop the horses in an endeavour to prevent injury to life and limb, and as the police were
under a general duty to intervene to protect life and property, the act of, and injuries to the
plaintiff were the natural and probable consequences of the defendants' negligence and
that the maxim volenti non fit injuria did not apply to prevent the plaintiff from recovering.
(89) A horse belonging to the defendants and attached to one of their vans was seen by the
plaintiff running past his house without the driver. It entered a field adjoining the plaintiff’s
garden, and the driver, who had followed it, was trying to pacify it, but as it continued to be
restive, the driver shouted for help. The plaintiff went and attempted to hold the horse, but
it threw him to the ground causing him injuries, in respect of which he sued the
defendants. It was held that the plaintiff must have known that his attempt to hold the
horse was attended with risk, and that the principle of volenti non fit injuria applied and
precluded the plaintiff from recovering. (90) This case has been distinguished from the
former case on the ground that there was no need to take any risk. While the plaintiffs,
husband and wife, were in a shop as customers, a skylight in the roof of the shop was
broken, owing to the negligence of contractors engaged in repairing the roof, and a portion
of the glass fell and struck the husband causing him a severe shock. His wife, who was
standing close to him, was not touched by the falling glass, but, reasonably believing her
husband to be in danger, she instinctively clutched his arm, and tried to pull him from the
spot. In doing this she strained her leg in such a way as to bring about a recurrence of
thrombosis. In an action to recover damages from the contractors, it was held that the
wife was also entitled to damages along with the husband, since what she did was, in the
circumstances, a natural and proper thing to do. (91)
The plaintiff, knowing that the driver of a motor-car was under the influence of alcohol and
that, consequently, the chances of an accident were thereby increased,
85. Burnett v British Water Ways Board, [1973] 2 All ER 631 (635) (CA).
86. Buckpitt v Oates, [1968] 1All ER 1145.
87. Ashdown v Samuel Williams & Sons Ltd., [1957]1All ER 35.
88. Burnett v British Water Ways Board, [1973] 2 All ER 631, p 635.
89. Haynes v Harwood, [1935] 1 KB 146.
90. Culter v United Dairies (London) Ltd., [1933]2 KB 297.
91. Brandon v Osborne Garett & Co., [1924] 1 KB 548.
Special Defence in Torts
45
chose to travel by that car. She was injured in an accident caused by the drunkenness of
the driver, in Which the driver was killed. In an action against the personal representative
of the driver, the defendant raised the defence of volenti non fit injuria. It was held that,
except perhaps in extreme cases, the maxim did not apply to the tort of negligence and
that the plaintiff was entitled to recover. (1)
The plaintiff, an infant 17 years old, agreed to be carried in the car of the defendant, who
was also 17 years old, at the plaintiff's own risk. The car struck a wall due to the
defendant's negligence and the plaintiff was injured. On the question whether the defence
volenti non fit injuria was an answer to the plaintiff's claim for damages, it was held that
the plaintiff, though an infant in law, could not enforce a right which he had voluntarily
waived or abandoned, and, accordingly, the defence of volenti non fit injuria succeeded. (2)

1. bid.
2. Buckpitt v Oates, [1968] 1 All ER 1145.