VOLENTI NON FIT INJURIA

When the plaintiff brings an action against the defendant for a particular tort, providing the existence of all the essentials of that tort, the defendant would be liable for the same. The defendant may, however even in such a case avoid his liability by taking the plea of some defence; Volenti Non Fit Injuria is one amongst them.

WHAT IS VOLENTI NON FIT INJURIA

Volenti non fit Injuria or the defence of consent, 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 agrees to suffer some harm, he is not allowed to complain for that and his consent serve as a good defence against him. No man can enforce a right which he has voluntarily waived or abandoned. Consent to suffer harm may be expressed or implied. Volenti non fit Injuria is a defence of limited application in tort law. A direct translation of Latin phrase “Volenti non fit Injuria” is to one volunteer, no harm is done. Where the defence of Volenti non fit Injuria applies it operates as a complete defence absolving the Defendant of all liability. The defence of Volenti non fit Injuria requires a freely entered and voluntary agreement by the Claimant, in full knowledge of the circumstances, to absolve the Defendant of all legal consequences of their actions. Let’s understand this with the help of a case law , in this case plaintiff was a spectator at motor car race being held at Brookland on a track owned by the defendant company. During the race, there was a collision between two cars, one of which was thrown among spectators, thereby injuring the plaintiff. It was held that the plaintiff impliedly took the risk of such an injury, the danger being inherent in the sport which any spectator could foresee the defendant was not liable. In other predominant case , while the driver was taking the jeep filling petrol in the tank, two strangers took lift in the jeep suddenly one of the bolts fixing the right front wheel to the axle gave way toppling the jeep. The two strangers were thrown out and sustained injuries, and one of them died as a consequence of the same. It was held that neither the driver the driver nor his master could be made liable, firstly, because it was a case of sheer accident and secondly, the strangers had voluntarily got into the jeep and as such the principle of volenti non fit injuria was applicable to this case. In Thomas v. Quartermaine there the plaintiff, an employee in the defendant’s brewery, was trying to remove a lid from a boiling vat. The lid was stuck and by the plaintiffs extra pull to it, it came off suddenly and the plaintiff fell back into the cooling vat which contained scalding liquid. The plaintiff was severely injured. The majority of the court appeal held that the defendant was not liable because the danger was visible and the plaintiff appreciated and voluntarily encountered the same.

REQUIREMENT OF THE DEFECNE

1. The consent must be free 2. Made in full knowledge of the nature and extent of the risk

REQUIREMENTS OF DEFENCE IN DETAIL

1. The consent must be free For the defence to be available, it is necessary to show that the plaintiff’s consent to the act done by plaintiff has been obtained by fraud or under compulsion or under some mistaken impression; such consent does not serve as a good defence. Moreover, the act done by the defendant must be same for which the consent is given. Thus, if you invite some person to your house you can not sue him for trespass when he enters your premises. But if the visitor goes to a place for which no consent ha been taken than he will be liable for the trespass. For example if a guest is requested to sit in drawing room, and he without any authority enters your bedroom he will be liable for trespass and he cannot take defence of your consent.
In a predominant case the complainant, a married woman, aged 40 years, noticed development of a painful lump in her breast. Te lump had no effect on her uterus but when her surgery was her done her uterus was removed without any justification. It was held that the opposite party i.e., the hospital was liable for deficiency in service. It was also held that the patient’s consent of surgery didn’t imply to consent of removal of her uterus When a person is incapable of giving his consent because on insanity or minority, consent of such person’s parent or guardian is sufficient
Consent obtained by fraud Consent obtained by fraud is not real and that does not serve as a good defence. In a predominant Irish case , plaintiff’s Boyfriend had infected her with a sexual disease and she was unaware about the fact that he was suffering from that disease and therefore, brought an action for battery against him, The action failed partly on the grounds that mere non disclosure of the disease by the defendant was not such a fraud as to vitiate consent, and partly on ground ex turpi causa non oritur action. (It means that from an immoral cause, no action arises). In a other predominant case the defendant was a singing coach. He told one of his pupils that he was performing an act to open her air passages to improve her singing. In fact he was having sexual intercourse with her. It was held that her consent was vitiated by fraud as to the nature and quality of the act, and defendant was held guilty for the charges o rape. In other predominant case defendant knew that he was suffering from a venereal disease and knowingly the fact he transferred the disease to his wife while having sexual intercourse, had her wife been aware about the fact she would have not submitted to the intercourse, hence the defendant was found guilty of inflicting grievous bodily harm and was convicted.

Consent obtained under compulsion
Consent given under circumstances when the person does not have a freedom of choice is not the proper consent. A person may be compelled by some situation to knowingly undertake some risky work which if he had a free choice, he would not have undertaken. Thus, “a man cannot be said to be truly willing unless he is in a position to choose freely and freedom of choice predicates”.
There are some other factors also on presence of which free consent can’t be there
• Coercion: - involves committing or threatening to commit any act forbidden by IPC and to the prejudice of any person. Coercion can make a person do something, which he will not do if let to himself.
• Undue influence: - relations between parties are such where one party is in a position to dominate the will of other & uses that position to obtain an unfair advantage over the other.
• Misrepresentation: - includes an assertion of information by a person making it which is not true or causing a party to make mistake as to the substance of the thing which is subject of agreement.
• Mistake of fact: - is where both parties to an agreement are under a mistake as to the matter of fact essential to the agreement.
Mistake of law is, however, no excuse.

2. Made in full knowledge of the nature and extent of the risk
Knowledge to bear the risk is not the same thing as consent to bear the danger. To avail knowledge as a defence, it has to be proved that: 1) The plaintiff was aware of the risk. 2) Knowing the risk he/she agreed to suffer the harm. mere knowledge does not necessarily imply that the plaintiff has agreed to suffer the consequences of the risky job which he has undertaken, in a predominant case the plaintiff was asked to ride a horse which was known to bolt. The plaintiff protested but ultimately obeyed the order. The horse bolted and the plaintiff was injured thereby. It was held that maxim of volenti non fit injuria did not apply as compulsion negated free consent and the plaintiff was entitled to claim damages. In another predominant case Mrs. Read had been employed as an inspector to munitions by the armament inspection department. She had not voluntarily under taken the work but had been directed to do it under the essential work order. During the course of her employment an explosion occurred which killed a man and injured others including the plaintiff. Sometime before the date of accident the plaintiff was offered with another job but she refused it because of the lower designation over there, hence she was having a chance to leave the job but she voluntarily continued to work in the factory with its attendant dangers. It was held that the element of compulsion had not entirely vanished and accordingly the defence failed. In one more predominant case , the plaintiff knowing that the driver of the car was drunk chooses to travel in it. Due to the drivers negligent driving an accident was caused resulting in the death of the driver himself and injuries to the lady passenger. In an action for damages the defence of voluntary non fit injuria was pleaded but the same was rejected on the grounds that the degree of intoxication the driver was not to such an extent that taking a lift could be deemed to be consenting to an obvious danger.