THE NATIONAL LAW INSTITUTE

UNIVERSITY,BHOPAL

VOLENTI NON FIT INJURIA:THE

EMERGENCE AND APPLICATIONS
SUBJECT-LAW OF TORTS I

TAUGHT BY-KAVITA SINGH MAAM

(ASSOCIATE PROFESSOR,NLIU BHOPAL)

SUBMITTED BY-KUSHAGRA SRIVASTAVA

2017BALLB73

Volenti Non Fit Injuria:The Emergence and Applications Page 1

 ACKNOWLEDGEMENT

I have taken efforts in this project. Yet it would not have been possible without
the unconditional support of many people and I am extremely thankful to all of them for the
same.
I would like to take this opportunity to express my utmost gratitude towards Kavita Singh
Maam for her guidance and being there to help me out whenever required.
I would also like to thank whole of the faculty and staff members of The National Law
Institute University,Bhopal for being so helpful and co-operative.
Lastly I would extend my thanks to my fellow batchmates and seniors for helping me out at
every stage.
Without them all I would not have been able to achieve the completion of this project and I
am really blessed to have all of them by my side.

Volenti Non Fit Injuria:The Emergence and Applications Page 2

 TABLE OF CONTENTS

S.No. Contents Pg.No.

1. Objectives 4
2. General Defences In Tort Law 5
2.1.The defence of consent 5
2.2.When plaintiff is the wrongdoer 5
2.3.Inevitable accident 5
2.4.Act of god 6
2.5.Act in relation to private defence 6
2.6.Necessity 6
2.7.Act in respect to statutory authority 6
3. Introduction 7
3.1.Voluntary 7
3.2.Agreement 7
3.3.Knowledge 7
4. History 8
4.1.English Law 8
4.2.United States 8
4.3.Canada 8
5. Emergence 9
6. Application In Various Cases 12
6.1.Volenti non fit injuria in employment relationship 12
6.1.1.Smith v. Baker & Sons 12
6.2.Volenti non fit injuria-Rescuers 12
6.2.1.Ogwo v. Taylor 12
6.2.2.Cutler v. United Dairies 13
6.3.Volenti non fit injuria-Suicide 13
6.3.1.Kirkham v. CC Greater Manchester 13
6.3.2.Reeves v. Commissioner of the Police of Metropolis 14

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 6.4.Volenti non fit injuria in context of sporting events 14
6.4.1.Condon v. Basi 15
6.4.2.Wooldridge v. Sumner 15
6.5.Volenti non fit injuria in relation to drunk drivers 16
6.5.1.Morris v. Murray 16
6.5.2.Pitts v. Hunt 16
6.6.Volenti non fit injuria-Occupiers Liability 17
6.6.1.Tichener v. British Railway Board 17
7. Role Of Consent By Fraud 19
7.1.Lakshmi Rajan v. Malar Hospital Ltd. 19
7.2.R. v. Williams 19
7.3.R. v. Clarence 19
8. Distinguishing Between Volenti non fit injuria and Contributory Negligence 20
9. Carefully Examining The Scope Of Doctrine 21
10. Recent Trends In India 22
11. Conclusion 24
12. Review Of Literature 25
13. Bibliography 26

1. OBJECTIVES

1.To understand the concept of general defences in Law of Torts.

2.To have a clear and broad view of Volenti Non Fit Injuria to be able to understand its need.
3.To encounter the various areas of its application.
4.To look at its applicability with the help of a few case laws.
5.To arrive at a logical conclusion derived from the research.

RESEARCH METHODOLOGY:
The research methodology is on Doctrinal Basis. It seeks help of various case laws during its
proceeding.

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 2.GENERAL DEFENCES IN TORT LAW

A plaintiff who fails to prove the necessary ingredients of the particular tort or torts on which
he relies will,of course,fall in his action.Even if he does prove these ingredients,however,he
may still fail if the defendant shows that he is entitled to rely upon some specific
defence.Some of these defences are peculiar to particular torts,as justification to the tort of
defamation.However there are certain defences which apply more generally throughout the
law of tort.
Let us have a look at some general defences in the law of torts:

The defence of Consent

When plaintiff is the wrongdoer
Inevitable Accident
Act of God
Act in relation to Private Defence
Necessity
Act in respect to Statutory Authority

2.1The defence of Consent: This defence is based on the principle of Volenti non fit
Injuria.A person, who has voluntarily agreed to suffer harm, cannot claim damages for such
harm. This consent to suffer harm can be either express or even implied.However, such
consent must be given freely and not obtained by fraud or any other illegal means.

2.2When plaintiff is the wrongdoer: This defence is based on the maxim Ex turpi causa
non oritur actio which means no action rises from an immoral cause. So, when the action
of the plaintiff is unlawful itself, it might lead to a defence in general.

2.3Inevitable Accident: Inevitable accident is such where the injury could not have been
avoided inspite of reasonable care on part of the defendant. In a suit for tort it is always a
good defence if it can be shown that the defendant could not avoid the injury sustained by the
plaintiff inspite of his reasonable effort.

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2.4Act of God:An Act of God is an inevitable accident arising out of the working of natural
forces which is beyond human control and unprecedented in nature and type. It must be
extraordinary and unanticipated as well.
The Rule of Strict Liability (as in Rylands v. Fletcher1) has incorporated the concept of this
defence.

2.5Act in relation to Private Defence:In case of imminent threat to life or property, use of
force for defence of the same is justified. However, use of such force must be reasonable and
should be in proportion to the requirement.

2.6Necessity: If damage is caused to avoid a greater damage, it becomes a good defence.

2.7Act in respect to Statutory Authority:Any damage arising out of an act that the law
prescribes or the statute authorises will never become actionable even though in absence of
such statutory authority it is an offence in tort.

So far as we are concerned we will deal only with the defence of volent non fit injuria and
seek to reach a valid conclusion.

1
Rylands v Fletcher [1868] UKHL 1

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 3.INTRODUCTION

Volenti non fit injuria is a defence of limited application in tort law. A direct translation of
the latin phrase volenti non fit injuria is, 'to one who volunteers, no harm is done'. Where the
defence of volenti applies it operates as a complete defence absolving the Defendant of all
liability. It is often stated that the Claimant consents to the the risk of harm, however,
the defence of volenti is much more limited in its application and should not be confused with
the defence of consent in relation to trespass. 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. There is a
considerable overlap with contributory negligence and since the introduction of the Law
Reform Act 19452, the courts have been less willing to make a finding of volenti preferring to
apportion loss between the parties rather than taking an all or nothing approach.
The requirements of the defence are thus:
3.1. Voluntary
3.2. Agreement
3.3. Knowledge
3.1. Voluntary
The agreement must be voluntary and freely entered for the defence of volenti non fit
injuria to succeed. If the Claimant is not in a position to exercise free choice, the defence will
not succeed. This element is most commonly seen in relation to employment relationships,
rescuers and suicide.
3.2. Agreement
The second requirement for the defence of volenti non fit injuria is agreement. The agreement
may be express or implied. An example of an express agreement would be where there exists
a contractual term or notice. However, this would be subject to the controls of s.2 of the
Unfair Contract Terms Act 19773. 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.
3.3. Knowledge
The Claimant must have knowledge of the full nature and extent of the risk that they ran.

2
Law Reform (Contributory Negligence) Act 1945
3
Unfair Contract Terms Act 1977

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 4.HISTORY

Volenti non fit iniuria is an often-quoted form of the legal maxim formulated by the Roman
jurist Ulpian which reads in original: Nulla iniuria est, qu in volentem fiat4.
4.1English Law
In English tort law, volenti is a full defence, i.e. it fully exonerates the defendant who
succeeds in proving it5The defence has two main elements:
The claimant was fully aware of all the risks involved, including both the nature and the
extent of the risk; and
The claimant expressly (by statement) or implicitly (by actions) consented to waive all claims
for damages. Knowledge of the risk is not sufficient: sciens non est volens ("knowing is not
volunteering"). Consent must be free and voluntary, i.e. not brought about by duress. If the
relationship between the claimant and defendant is such that there is doubt as to whether the
consent was truly voluntary, such as the relationship between workers and employers, the
courts are unlikely to find volenti.
It is not easy for a defendant to show both elements and therefore comparative negligence
usually constitutes a better defence in many cases. Note however that comparative negligence
is a partial defence, i.e. it usually leads to a reduction of payable damages rather than a full
exclusion of liability. Also, the person consenting to an act may not always be negligent: a
bungee jumper may take the greatest possible care not to be injured, and if he is, the defence
available to the organiser of the event will be volenti, not comparative negligence.
Consent to medical treatment6 or consent to risky sports7 on the part of the claimant excludes
liability in tort where that consent is informed consent.
4.2United States
The similar principle in US law is known as assumption of risk.
4.3.Canada
In Canada, the "volenti" principles applies in much the same way as under English law. The
leading Canadian cases on point are Dube v. Labar8 and Hall v. Hebert9.

4
Digest,Book 47, title 10, quoting Ulpian, On the Edict, Bk. 56.
5
Chitty on Contracts (29th Edition). Sweet & Maxwell. 2004. pp. 61, 62
6
Sidaway v Board of Governors of the Bethlem Royal Hospital [1985] A.C. 871
7
Condon v Basi [1985] 1 W.L.R. 866
8
Dube v. Labar, [1986] 1 SCR 649
9
Hall v. Hebert, [1993] 2 SCR 159

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 5.EMERGENCE

It was not until after the passage of the Employers' Liability Act in England, in 1880, that the
defence received its most careful consideration. As the courts held, or at least strongly
intimated, that that Act took away from an employer the old defence of employee's risk, i.e.,
that the employee assumed the obvious incidental risks of his employment, the defendants in
accident cases began to urge as a defence what was really a broader application of the same
doctrine. In Thomas v. Quartermaine10(I887), it was held by Lord Bowen:
(1) that in finding plaintiff not guilty of contributory negligence the county judge left
untouched the defence of Volenti non fit injuria
(2) that Volenti was not equivalent to scienti, there must not only be " knowledge and
perception of the danger," but also " comprehension of the risk."
(3) that when it is knowledge under circumstances that leave no inference open but one, viz.
that the risk has been voluntarily encountered, the defence is complete
(4) that if the facts are undisputed it is a question of law which the court may decide, whether
the risk has been voluntarily assumed
(5) that the defence Volenti was not taken away by the Employers' Liability Act. This case
has been severely criticised by Esher, M. R., in Yarmouth v. France11(1887), and by Lord
Herschell and Lord Watson, in Smith v. Baker12 ,on the ground that the fact of volenti cannot
be held as a matter of law. But the case has never been overruled.
In Membery v. G. W. Ry. Co.13, the plaintiff had for seven years worked at shunting of
trucks, with knowledge of its danger if performed without assistance. Having asked for a boy
to help him and being refused, he proceeded to shunt trucks alone. Held, defendant owed him
no duty. Lord Herschell and Lord Halsbury agreed that the limits of the maxim must be left
open for future decision. In Smith v. Baker (1891), the plaintiff was employed by railway
contractors to drill holes near a crane worked by other men employed by the contractors. The
crane swung stones over the plain- tiff's head, and the plaintiff was aware of this, and of the
danger. The only point really decided was that under the circumstances of the case the
question whether he had undertaken the risk was one of fact and not one of law. This was put

10
Thomas v. Quartermaine, 17 Q. B. D. 414 (i886), and i8 Q. B. D
11
Yarmouth v. France, I9 Q. B. D. 649 (1887).
12
Smith v. Baker (189i), App. Cas
13
Membrey v. Great Western Ry. Co., 14 App. Cas

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upon various grounds by the different judges, and no definite conclusion as to the scope14 of
the maxim was reached. The doctrine as established is composed of two parts; first, that
plaintiff shall have full knowledge of the nature and extent of the risk; second, that he shall
freely and voluntarily incur it. The necessity of the first requisite is pointed out in Osborne v.
London, & N. W. Ry. Co.15, where the plaintiff admitted that he knew that the icy steps down
which he went were dangerous, and that he went down carefully, holding the handrail. The
jury found specifically no contributory negligence.Wills,J.,held that the defence Volenti was
not proved, as " the plaintiff may well have misapprehended the extent of the difficulty and
danger which he would encounter in descending the steps; for instance, he might easily be
deceived as to the condition of the snow." This requisite of the defence, as the judge pointed
out, " goes far to make it hard for a defendant to succeed, . . . for it is probable that juries
would often find for the plaintiffs on the ground that they had not full knowledge of the
nature and extent of the risks."
The chief discussion has come upon the second part of the maxim, i. e. what is the meaning
of the word " voluntarily "? When does a man voluntarily incur a danger? In Thrussel v.
Handyside16, where plaintiff was a carpenter, and defendant's workmen on roof above him
dropped bolts, of which the plaintiff had complained before his injury, it was held that
knowledge of the danger was not proof of his wilfully incurring it, and that as he was law-
fully engaged on work and in danger of dismissal if he left it, the defendants were bound to
use due care.
It should be noticed that in this case there was no relation of any kind between plaintiff and
defendant except that of location.It was suggested by Lindley, L. J., in Yarmouth v. France
(I887), that the fact that a plaintiff protests against a danger, but goes on as before, is not
conclusive of his assumption of it. "
Fear of dismissal rather than voluntary action might properly be inferred." The opposing view
is put forward by Lord Bramwell17 who says, "Are we to say, Volenti non fit injuria, provided
the plaintiff grumbles?" "Where a man can at his option do a thing or not, and he does it, the
maxim applies; " and this is the view held in the Massachusetts courts18. The law as to this
point is then as yet unfixed, although there were intimations by Lord Herschell and other
judges, in Smith v. Baker, that where a risk has been enhanced by breach of duty of the

14
Cf. Article on Law Quarterly Rev., viii. 202
15
B Osborne v. London & N. W. Ry. Co., 2I Q. B. D. 224 (I888).
16
Thrussel v. liandyside, 2 Q. B. D. 359 (i888)
17
Membery v. G. W. Ry
18
Leary v. B. & A. R. R., 139 Mass., p. 587.

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employer, a mere continuance in the service with knowledge would not debar an employee's
recovery. But these opinions ignore the fact that the whole question turns on just that point,
whether there is any " breach of duty" towards any employee in such a position.
There has been some discussion, confined, however, to the English cases, as to how far a
statutory duty to guard machinery, or against danger, took away from a defendant the defence
of volenti.
The result of the cases seems to be that a statutory duty is not of such a nature that in no
event can it be waived by conduct on the plaintiff's part. It simply places upon the defendant
the burden of proving not only knowledge, but that as a matter of fact the servant has
dispensed with the performance of the master's statutory duty.19

So we see that there had been many criticisms of the defence.Also,as we proceeded we saw
how the maxim aroused many confusions during its emergence.
Nevertheless,such instances have contributed immensely towards the development of the
maxim of volenti non fit injuria as a defence.

19
The case of Baddeley v. Earl Granville, I9 Q. B. D. 433, discussing this defence, is ill considered and a wrolng statement of the law.

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 6.APPLICATION IN VARIOUS CASES

6.1Volenti non fit injuria in employment relationships:

As long ago as 1891, the House of Lords recognised that an employee who complained of
unsafe practice, but nevertheless continued to work could not truly be said to have voluntarily
agreed to waive their legal rights

6.1.1.Smith v Baker & Sons20

The Claimant sued his employers for injuries sustained while in the course of working in
their employment. He was employed to hold a drill in position whilst two other workers took
it in turns to hit the drill with a hammer. Next to where he was working another set of
workers were engaged in taking out stones and putting them into a steam crane which swung
over the place where the Claimant was working. The Claimant was injured when a stone fell
out of the crane and struck him on the head. The Defendant raised the defence of volenti non
fit injuria in that the Claimant knew it was a dangerous practice and had complained that it
was dangerous but nevertheless continued. At trial the jury found for the Claimant. The
Defendant appealed and the Court of Appeal allowed the appeal holding that the Claimant
was precluded from recovering as he had willingly accepted the risk. The Claimant appealed
to the House of Lords.
Held 3:2 Decision.
The appeal was allowed. The Claimant may have been aware of the danger of the job, but had
not consented to the lack of care. He was therefore entitled to recover damages.

6.2 Volenti non fit injuria rescuers:

A rescuer is not regarded as having freely and voluntarily accepted the risk:

6.2.1Ogwo v Taylor21 :
The Defendant attempted to burn off paint from the fascia boards beneath the eaves of his
house with a blow lamp and in so doing set fire to the premises. The fire brigade were called
and the Claimant, an acting leading fireman, and a colleague entered the house wearing

20
Smith v Baker & Sons 1891] AC 325 [
21
Ogwo v Taylor [1987] 3 WLR 1145

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breathing apparatus and the usual fireman's protective clothing and armed with a hose. The
two firemen were able, with the aid of a step- ladder, to squeeze through a small hatch to get
into the roof space. The heat within the roof space was intense. The Claimant suffered serious
burn injuries to his upper body and face from scalding steam which must have penetrated his
protective clothing.
Held:
A duty of care was owed to a professional fireman. There was no requirement that the risk be
exceptional. The defence of volenti had no application.

Lord Bridge:
"The duty of professional firemen is to use their best endeavours to extinguish fires and it is
obvious that, even making full use of all their skills, training and specialist equipment, they
will sometimes be exposed to unavoidable risks of injury, whether the fire is described as
"ordinary" or "exceptional." If they are not to be met by the doctrine of volenti, which would
be utterly repugnant to our contemporary notions of justice, I can see no reason whatever why
they should be held at a disadvantage as compared to the layman entitled to invoke the
principle of the so-called "rescue" cases."

6.2.2.Cutler v United Dairies22

The Claimant was injured when he entered a field to calm some horses. His claim for
compensation was unsuccessful as the horses presented no immediate danger to persons or
property and there was no need for him to intervene. He was thus held to be volens.

6.3.Volenti non fit injuria - Suicide

Where the Claimant commits suicide, originally it was held that they would be treated
as volens if they were of sound mind, but if they were of unsound mind the defence of volenti
non fit injuria would have no application.

6.3.1.Kirkham v CC Greater Manchester Police23:

Mr Kirkham was an alcoholic and suffered from depression. He had made a two suicide
attempts on 6th Jan 1980. He was admitted to hospital but discharged himself the following
day. When he arrived home his wife prevented him from drinking and he became violent and
started smashing furniture. The police were called and arrested him. His wife informed them
22
Cutler v United Dairies [1933] 2 KB 297
23
Kirkham v CC Greater Manchester Police [1990] 2 QB 283

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of his suicide attempts and discharging himself from hospital and it was agreed that he should
be remanded in custody for his own safety. However, the police failed 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 Police raised the defences of volenti non fit
injuria and ex turpi causa.
Held:
The claimant was successful. The defence of volenti non fit injuria, although normally would
apply where a person of sound mind were to take their own life, had no application where a
person of unsound mind took their life. The defence of ex turpi causa was not limited to
illegal acts but extended also to immoral acts. The court applied the public conscience test
and concluded that to allow the claimant to succeed would not affront the public conscience,
or shock the ordinary citizen.

6.3.2.Reeves v Commissioner of Police of the Metropolis24

Martin Lynch committed suicide whilst in a police cell. He had attempted suicide earlier that
day in the cells at the magistrates. He had also attempted suicide on previous occasions. He
had been seen by a doctor at the police station on arrival who reported that he was not
schizophrenic or depressed but was a suicide risk. The custody officer checked him at 1.57
pm and left the hatch open. He was found at 2.05 pm having used his shirt as a ligature
secured by the open hatch. He was unable to be resuscitated and died a week later. The
defendant argued that as Lynch was of sound mind his voluntary and informed act of suicide
broke the chain of causation.
Held:
The act of suicide was the very thing that the police were under a duty to prevent to treat this
as a novus actus interveniens would deprive the duty of any substance. Therefore the
defendant was liable, however damages were reduced by 50% under the Law Reform
(Contributory Negligence) Act 1945.

6.4.Volenti non fit injuria in context of sporting events:

24
Reeves v Commissioner of Police of the Metropolis [2000] 1 AC 360

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6.4.1.Condon v Basi 25:A participant in sporting events is taken to consent to the risk of
injury which occurs in the course of the ordinary performance of the sport.
The Claimant suffered a broken leg during a tackle from the Defendant during a football
match. The Claimant was playing for Whittle Wanderers and the Defendant for the Khalso
Football Club. Both clubs were in the Leamington local league. The question for the court
was the standard of care expected of a football player.
Held:
The standard of care varies according to the level of expertise the player has. The Defendant
was in breach of duty as the tackle was reckless even with regards the standard expected of a
local league player. Whilst a participant can be taken to accept the risks of injury inherent to
such sporting activities they do not accept the risk of injury which occurs outside the rules of
the game.

6.4.2.Wooldridge v Sumner 26:

The claimant was a photographer at a horse show. He was situated within the ring of the
horse show and not behind the barriers where the spectators were housed. He was on a bench
with a Miss Smallwood who was a director of the company which employed the Claimant.
He had been taking little interest in the proceedings and was not experienced in regard to
horses. During the competition, one of the horses, Work of Art owned by the Defendant,
came galloping at great speed towards the bench where they were sitting. The Claimant took
fright at the approach of the galloping horse and attempted unsuccessfully to pull Miss
Smallwood off the bench. He stepped or fell back into the course of the horse which passed
three or few feet behind the bench, and was knocked down. The Claimant brought an action
in negligence arguing the rider had lost control of the horse and was going too fast. The
defendant raised the defence of volenti non fit injuria.
Held:
There was no breach of duty so the Claimant's action failed. On the issue of volenti non fit
injuria it was held that consent to the risk of injury was insufficient. There must be consent to
the breach of duty in full knowledge of the nature and extent of the risk.
Diplock LJ:

25
Condon v Basi [1985] 1 WLR 866
26
Wooldridge v Sumner [1963] 2 QB 43

Volenti Non Fit Injuria:The Emergence and Applications Page 15

"The maxim in English law presupposes a tortious act by the defendant. The consent that is
relevant is not consent to the risk of injury but consent to the lack of reasonable care that may
produce that risk and requires on the part of the plaintiff at the time at which he gives his
consent full knowledge of the nature and extent of the risk that he ran"

6.5. Volenti non fit injuria in relation to drunk drivers:

A person accepting a lift from a drunk driver was not to be treated as volens unless the
drunkenness was so extreme and so glaring that accepting a lift would be equivalent of to
intermeddling with an unexploded bomb or walking on the edge of an unfenced cliff.

6.5.1.Morris v Murray27:

The Claimant and Defendant had been drinking all day. The Defendant, who had a pilot
licence and a light aircraft, suggested that they took the aircraft for a flight. The Claimant
agreed and drove them both to the airfield. They started the engine and the Defendant took
off but crashed shortly after. The Defendant was killed and the Claimant was seriously
injured. An autopsy revealed that the Defendant had consumed the equivalent of 17
Whiskeys. In an action for negligence, the Defendant raised the defence of volenti non fit
injuria.
Held:
The defence was allowed. The actions of the Claimant in accepting a ride in an aircraft from
an obviously heavily intoxicated pilot was so glaringly dangerous that he could be taken to
have voluntarily accepted the risk of injury and waived the right to compensation.

6.5.2. Pitts v Hunt28:

The Claimant, Mr Pitts (aged 18), and Mr Hunt (aged 16), were friends. They had been out
for an evening together. Mr Hunt gave the Claimant a lift on the back of his trial motorbike
which was a Suzuki 250cc. He had no licence to ride the bike on the road, indeed the engine
capacity limit for a 16 year old to ride legally would be 50cc. He also had no tax or insurance.
The pair consumed alcohol at their destination and Mr Hunt was twice over the legal limit for
driving. Nevertheless, the pair embarked on their journey home on the motorcycle. Witnesses

27
Morris v Murray [1991] 2 QB 6
28
Pitts v Hunt [1990] 3 All ER 344

Volenti Non Fit Injuria:The Emergence and Applications Page 16

gave evidence that the two were obviously very drunk and Hunt was driving recklessly and
erratically. He was zigzagging down the centre of an A road at great speed, with both the
parties shouting and jeering. Mr Pitts was jeering Mr Hunt on and encouraging the dangerous
driving. At one time, Mr Hunt drove dangerously close to a witness in order to scare them.
Unfortunately Mr Hunt hit an oncoming car when he was travelling at speed on the wrong
side of the road. Mr Hunt was killed and the Claimant was left permanently partially
disabled. He brought an action for the injuries sustained against the personal representatives
of Mr Hunt. In their defence they raised the defences of volenti non fit injuria, contributory
negligence and ex turpi causa. The trial judge held that the Claimant could not recover based
on the fact that ex turpi causa operated to preclude the imposition of a duty of care and also
that the Claimant was 100% responsible for his own injuries under the Law Reform
(Contributory Negligence) Act 1945. On the issue of volenti he held that s.148(3) of the Road
Traffic Act 1972 precluded the application of the defence. The Claimant appealed.
Held:
Ex turpi causa and public policy did operate to preclude the imposition of a duty of care. The
trial judge was wrong in principle in finding that the Claimant was 100% contributory
negligence since the wording of the Act precluded such a finding. S.148(3) of the Road
Traffic Act did preclude the application of the defence of volenti non fit injuria.

6.6.Volenti non fit injuria - Occupiers Liability

Occupiers' Liability Act 195729 and Occupiers' Liability Act 198430 provide that occupiers
owe no duty in respect to risks willingly accepted by that person as his. It appears that there is
no need to establish an agreement.

6.6.1.Titchener v British Railways Board31:

The Claimant, a 15 year old girl, was out walking with her boyfriend who was 16. They took
a short cut across a railway line and they were both hit by a train. He was killed and she was
seriously injured. There was a gap in the fence at the place where they crossed and there was
a pathway leading to this gap which suggested that there was repeated trespass. Also it was
accepted that either the Defendant was aware of the gap or would have been aware upon

29
S. 2(5) Occupiers' Liability Act 1957
30
s.1(6) of the Occupiers' Liability Act 1984
31
Titchener v British Railways Board [1983] 1 WLR 1427

Volenti Non Fit Injuria:The Emergence and Applications Page 17

reasonable inspection. The Defendant raised the defence of volenti under s.2(3) of the
Occupiers Liability Act 196032

Held:
The scope of the duty owed to trespassers varies on the circumstances. On the facts of this
case the Defendants did not owe a duty to a 15 year old trespasser who was fully aware of the
risks. Even if the Defendant did owe a duty of care the defence of volenti under s.2(3) would
succeed.

Lord Ross:

"In my view, the pursuer's own evidence referred to above, along with the other evidence in
the case, is, in my opinion, sufficient to establish the defence of volenti non fit injuria. Such
defence is open to the defenders under section 2 (3) of the Occupiers' Liability (Scotland) Act
1960, and no duty under section 2 (1) of the Act is imposed upon an occupier to a person
entering on the premises in respect of risks which that person has willingly accepted as his.
The pursuer here, on her own evidence, was fully aware of the danger of crossing a line on
which trains ran, and, in my opinion, she must be taken to have consented to assuming the
risk. There is a passage in her cross-examination which proceeded as follows:

"Q. And you knew that it would be dangerous to cross the line because of the presence of
these trains? A. Yes. Q. Well why did you do it if you knew it would be dangerous? A.
Because it was shorter to get to the brickworks. Q. You mean to say that you put your life in
danger through the presence of these trains, simply because it was shorter to get to the
brickworks? A. Well, before my accident I never ever thought that it would happen to me,
that I would never get hit by a train, it was just a chance that I took."

A person who takes a chance necessarily consents to take what comes."

32
Occupiers Liability (Scotland) Act 1960

Volenti Non Fit Injuria:The Emergence and Applications Page 18

 7.ROLE OF CONSENT OBTAINED BY FRAUD

If the consent of the plaintiff has been obtained by fraud or under compulsion or under some
mistaken impression,such consent doesnt deserves a good defence.
Case Law :
7.1.Lakshmi Rajan V. Malar Hospital Ltd.33
Plaintiff was a married woman of 40 years who got lumps in her breast.Malar Hospital has
taken consent for any miss-happening during the surgery.During the surgery along with
breasts lumps,her uterus was also removed without any justification.Since the hospital had
taken the consent only for the lumps in the breast,Defendant was held liable.
Ex turpi causa non oritur actio : From an immoral cause,no action arises.
Case Laws :
7.2.R. v Williams34
The defendant was a singer who use to teach students about singing.Defendant during the
singing lesson convinced his 16 years old student to give her consent for sexual intercourse
with him for the purpose of improving her voice that will make her a good singer.
7.3.R. v Clarence35
The defendant had sexual intercourse with his wife knowing that he is suffering from a
sexually transmitted disease Gonorrhea,wife sued the husband for doing so,where husband
was not liable for any kind of damages.
Other than this, the consent should not be obtained under compulsion. Consent given under
circumstances when a person does not have a freedom of choice,is not the proper consent.A
person may have compelled by a situation under which he has knowingly undertaken worth
which if he had free choice,he would have not taken.Such consents are generally arises out of
the master-servant relationship.Thus,a man cannot be said to be truly willing unless he is in a
position to chose freely and freedom of choice predicates,not only full knowledge of
circumstances on which exercise of choice is conditional,so that he may be able to choose
wisely,but the absence of any feeling of constraint so that nothing shall interfere with the
freedom of his will.Therefore,there is no Volenti Non Fit Injuria,when a servant is compelled
to do some work inspite his protest.

33
Lakshmi Rajan V. Malar Hospital Ltd III (1998) CPJ 586 (Tamil Nadu SCDRC)
34
R v Williams [1923] 1 KB 340
35
R v Clarence (1889) 22 QB 23

Volenti Non Fit Injuria:The Emergence and Applications Page 19

8.DISTINGUISHING BETWEEN VOLENTI NON FIT
INJURIA AND CONTRIBUTORY NEGLIGENCE

Following are some points which help us to differentiate between the concepts of volenti non
fit injuria and contributory negligence:

1.Volenti non fit injuria is a complete defence.Since the passing of the Law Reform
(Contributory Negligence) Act,1945,the defendants liability,in the case of contributory
negligence,is based upon the proportion of his fault in the matter.In such a case,therefore,the
damages which the plaintiff can claim will be reduced to the extent the claimant himself was
to blame for the loss

2.In the defence of contributory negligence,both the plaintiff and the defendant are
negligent.In volenti non fit injuria,the plaintiff may be volens but at the same time exercising
due care for his own safety.36Moreover,defendants negligence may rule out the application
of the defence of volenti non fit injuria.37

3.In case of volenti non fit injuria,the plaintiff is always aware of the nature and extent of the
danger which he encounters.There may,however be contributory negligence on the part of the
plaintiff in respect of a danger which he did not,in fact,know although he ought to have
known about it.

36
Heard v. N.Z. Forest Products Ltd.,(1960) N.Z.I.R. 329,357.
37
Slater v. Clay Cross Co.,(1956) 2 Q.B. 264 : (1956) 2 AII E.R. 625

Volenti Non Fit Injuria:The Emergence and Applications Page 20

 9.CAREFULLY EXAMINING THE SCOPE
OF DOCTRINE

It is evident that there must be some limit in actions of negligence to the defence. It cannot be
that wherever a plaintiff knows there is some risk he debars himself from any right to
complain if injury happens to him38.A person- does not necessarily assume the risk of the
defendant's negligent action, even if he knows of it. Thus, if A. knows that B. drives his cab
carelessly, and that he has run down many persons, A. does not necessarily voluntarily
assume the risk of being knocked down, by simply crossing a street in which he knows B. to
be driving.

It is submitted that the application of the maxim or defence must be limited to those cases
where the plaintiff and defendant enter into some distinct relation towards each other, such as
employer and employee, occupier of land and person entering upon the land, contractor and
contractee, railroad and passenger, seller of article and person purchasing or likely to
purchase or use.

But where plaintiff and defendant are simply the members of the same general community,
occupying no specific relation to each other, then each is bound to use ordinary care towards
the other, and the fact that the plaintiff knows that the defendant negligently does something
which may bring him injury, is not conclusive that the plaintiff has assumed the risk of the
danger from that negligence.

In other words, it is only when a plaintiff has a choice whether he will enter into a specific
relation to the defendant that the maxim will apply, if he chooses to enter or continues in that
relation with knowledge of the danger. Where the relation between plaintiff and defend- ant
is forced upon the plaintiff by the defendant's action, then if the plaintiff is hurt, even with
knowledge of the danger, it does not lie in the defendant's mouth to say, " Yes, but you
assumed the risk of my misconduct." The plaintiff may well say,"It was not my choice. The

38
As Lord Halsbury, in Smith v. Baker, says, p.328

Volenti Non Fit Injuria:The Emergence and Applications Page 21

danger and risk of making the choice was forced upon me by your action." This, it is
submitted, is the true explanation of cases like Thrussel v. Handyside39.

In that case, there being no connection between the plaintiff and defendant except that the
plaintiff happened to be working underneath the defendant's servants, the fact that the
plaintiff knew his position to be dangerous did not absolve the defendant from using due care
to prevent injury, because neither party of his own choice had entered into any relation with
the other, except that they happened to be working near each other.

One party cannot force himself into such a relation with the other so as to allow him to say to
the other, who is thus obliged to accept the relation, " If you stay in this position with
knowledge, I owe you no duty." Both have equal rights to be where they are, and between
them the defence of Volenti non fit injuria has no place.

10.RECENT TRENDS IN INDIA

With the passage of time, the defence of volenti non fit injuria has become restricted in its
scope. New concepts have been intermingled with the concept of this maxim. For example,in
the case of Nasibdar Suba Fakir vs Adhia Company40, the concept of a passenger travelling in
a vehicle for hire or reward has come up. The principle of contract for employment has also
come up which has shown indicated that, the plaintiff has suffered from injury by placing
himself in such a position as was required by the contract.
The judgement of this case was basically influenced by the judgement of the Supreme
Court in the Pushpabai case. However, a Division Bench of the Gujarat High Court in a
similar case had given a contrasting judgement, the effect of which was toned down
after the Supreme Court judgement. The trend set by the Supreme Court was also
followed by the Madras High Court and the Andhra Pradesh High Court in two other
cases.
Medical negligence is another concept, in which volenti non fit injuria is often invoked
as a defence. A landmark case in this field was the case of Lakshmi Rajan vs Malar
Hospital in the year 1998.

39
Thrussel v. Handyside, 20 Q. B. D. 359 (18S8)
40
Nasibdar Suba Fakir v.Adhia Company AIR 1984

Volenti Non Fit Injuria:The Emergence and Applications Page 22

There were many other such case of medical negligence,where the Courts have in general
held that volenti non fit injuria though contested will not be applicable for the main reason
that patient (plaintiff in these cases) consents to the operation and not to the injury resulting
from negligence in such an operation.

Negligence on the part of the driver of a vehicle has attracted similar judgements.Such cases
include the case of Smt Khushnuma Begum and Others v. the New India Insurance Company
Ltd41. In 2001, Adhikarala Jagadeeswara Rao v. Gopala Krishna Transport and Others42, Ali
Khan v. Vijay Singh and Others43, in, Smt. Manjula Devi Widow of Awadhesh Kumar v.
Commercial Motors44.

The case of Puppala Seetaramaiah v. Superintendent Sub Jail45 discussed the application of
the defence with respect to prisoners, who have been imprisoned due to their wrongful acts.
No case similar to this has come up subsequently. But in cases with similar facts, we have
seen that the courts have followed a uniform trend of judgement,differing only if crucial
deciding facts of the cases differ.

41
Smt. Khushnuma Begum and Others v. the New India Insurance Company Ltd. AIR 2000-Special Leave Petition(Civil) 1431
42
Adhikarala Jagadeeswara Rao v. Gopala Krishna Transport and Others AIR 2004 Andhra Pradesh HC
43
Khan v.Vijay Singh and Others AIR 2005 Rajasthan HC
44
Smt. Manjula Devi Widow of Awadhesh Kumar v. Commercial Motors AIR 2007 Allahabad HC
45
Puppala Seetaramaiah vs Superintendent Sub Jail 2003 (2) ALD 584, 2003

Volenti Non Fit Injuria:The Emergence and Applications Page 23

 11.CONCLUSION

We began our research by progressing through general defences in tort law and then had a
look at some conditions necessary for the doctrine of Volenti non fit injuria to prevail.We
also learnt about the history of the defence and how it emerged as a defence by briefly
summarizing several case laws.Then we saw various cases where the doctrine could be
applies and observed the role of consent by fraud.Towards the end we distinguished between
the doctrine and contributory negligence and examined the scope of the defence followed by
recent trends in the country.

We saw that the defence of Volenti non fit injuria was not recognized substantially until after
the passage of the Employers' Liability Act in England, in 1880, that the defence received its
most careful consideration. As the courts held, or at least strongly intimated, that that Act
took away from an employer the old defence of employee's risk, i.e., that the employee
assumed the obvious incidental risks of his employment, the defendants in accident cases
began to urge as a defence what was really a broader application of the same doctrine.

Then the doctrine further emerged when certain principles regarding it were laid down in
Thomas v. Quatermaine.As time proceeded,the principles demanded more and more of their
application from all over the world.I think that with the development of sports the defence
increasingly gained popularity as it is very much pertinent to several mainstream sports and
finds various applications in them.

The doctrine,as we saw,started to be applied in numerous cases and with that certain
limitations were seen which in itself is a proof of the emergence of Volenti.

Volenti Non Fit Injuria:The Emergence and Applications Page 24

 12.REVIEW OF LITERATURE

1.Harvard Law Review,Vol.8,(Mar.25,1895):

The journal is very concise and meaningful in its approach.Its article Volenti Non Fit
InjuriaIn Actions Of Negligence proceeds in a very specific manner telling us about the
emergence of the doctrine with the help of various case laws.It raises many questions with an
objective of finding answers to them.It points out limitations of the defence and also draws
valid conclusions.

2.Bangia R.K., Law of Torts:

The book is a perfect guide to understand the basic concepts of law of torts.It explains the
general defences in tort law in detail with the help of case laws.It also distinguishes between
those general defences and talks about their limitations as well.The concerned topic of the
project ,i.e., Volenti non fit injuria is explained in a very clear manner including all the
exceptions,limitations,case laws,etc.

3.Jain Ashok,Law of Torts:

The book has its unique approach of raising certain questions and explaining the topics
included in detail.These questions help the reader to ponder upon specific issues and discover
various areas thinking.The book also includes each and every sub-topic that is sufficient to
cover an area.

Volenti Non Fit Injuria:The Emergence and Applications Page 25

 13. BIBLIOGRAPHY

http://e-lawresources.co.uk/Volenti-non-fit-injuria.php
Harvard Law Review, Vol. 8,(Mar. 25, 1895)
http://www.lexuniverse.com/torts/india/General-Defences-In-Torts.html
Bangia R.K., Law Of Torts
http://upreparelaw.com/general-defences-in-torts-law-notes-pdf-cases
Singh G.P., The Law Of Torts
Jain Ashok, Law Of Torts
17 Jurid. Rev. 43 (1905), Volenti Non Fit Injuria
Tort Law: Text, Cases, and Materials by Jenny Steele

Volenti Non Fit Injuria:The Emergence and Applications Page 26