NAME-KUSHAGRA AMRIT

ROLL-1882053

SECTION-BBA LLB “A’

Volenti-non-fit-injuria
There are many instances where it has been found that the loss is being suffered by a person due to
the act of the other, but for which he has no remedy in tort law. It so happens because that the person
suffering the harm has consented for the same. Example, where a spectator of a cricket match gets hit
by the cricket ball at the stadium without any part of negligence and wrongful intention on the part of
player or the defendant, in that situation the plaintiff doesn’t have any remedy under tort law as he
himself has consented for such risk at the time of purchasing the tickets. This consent is a good
defence for the defendant under tort law and this is concept is termed as ‘Volenti Non Fit Injuria’.

The term Volenti Non Fit Injuria is a Latin maxim which refers to a willing person, an injury is not
done. It is a common law doctrine, according to this doctrine the person who voluntarily gives
consent for any harm to suffer would not be liable to claim any damages for the same and this
consent serves as a good defence against the plaintiff. The person who himself voluntarily waived or
abandoned his right cannot have any claim over it[1]. Provided this doctrine is only applicable to the
extent that a normally prudent person would have assumed to have suffered the risk.

So, if a batsman is hit by his other player having the wrong intention then this defence won’t serve as
the good defence against the defendant, as the batsman has agreed to suffer the harm caused to him
during the game and that too not voluntarily with the wrong intention.

From the plaintiff’s point of view, it can also be termed as ‘consent to run a risk’. In this context, the
defendant can run out of risk and can prevent himself from the tort liability arising out of the first
case. That is if, for example, consent given to a person for visiting his house can save him from the
trespass to land.

It may also happen that the consent so obtained may either be express or implies by the act or the
conduct of the parties. Like where a spectator at a motor race was being injured by a car which
reached there because of the collusion between the two during the race, and therefore the spectator
was not liable for any action against the car owner and neither towards the club. [2] Similarly, a
person going on a highway is presumed to consent to the risk of pure accidents.[3]

History:
The term ‘Volenti non fit injuria’ originally reads as Nullainiuriaest, quæ in volentem fiat formulated
by Roman jurist Ulpian.[4]

The maxim is a full defence for the action of the defendant whose consent has been obtained from
the plaintiff, and the plaintiff agrees to suffer the harm caused to him by that act. The part of proving
negligence factor was a matter of controversy. Before 1945 there was no any specific difference
between the contributory negligence and volenti non fit injuria. In pre-1945 to take defence, it was
necessary to prove breach of duty. The judges were having a confusing view regarding contributory
negligence and volenti non fit injuria.  Some were of the view that for the defence to operate it is
necessary that there should be express or implied consent between the parties for the defence to
operate while the other felt that if there is any pre-existing danger and the plaintiff knew and had
consented to that then there will no defence be available.

The maxim was standing on the principle of estoppels, which was applicable to the Roman citizens
originally who gave consent for being sold as a slave. The defence here argued that the maxim here
can’t be applied as for applying negligence there has to express contract between the parties and in its
absence no negligence where duty is based on proximity or ‘neighbourship’ in Atkinian sense.
In Dann vs. Hamilton[5] the judge expressed doubt whether the maxim could ever apply after the act
is done as because if the consent is obtained from the claimant before the act of negligence is done
then the claimant would not be able to have the knowledge of the act and till what extent he would be
liable to suffer the harm.

In the case of Khimji vs Tanga Mombasa transport co. ltd (1962) was the case where the doctrine
of volenti non fit injuria was rightly applied. In this case, the travelling bus containing some drivers
in it reached a place where there was a flood. The driver insisted to stop the journey, but the
passengers including the defendant insisted to continue the journey. As a result, the bus droned away
and some passengers including the defendant died. It was held that the defendant claim can’t be
maintained as the deceased knew the risk involved in the act.

Essentials:
For taking the defence of Volenti Non Fit Injuria it is necessary that:

a. The consent must be free

It is necessary that for pleading the defence of Volenti Non Fit Injuria the consent so obtained by the
defendant must be free that is it should not be obtained by coercion fraud or through any other
means. If such methods are used to obtain the consent the defence would fail in getting the relief.
Though it is also necessary that the act should only be done to the extent till the permission is granted
exceeding the limit would also lead for non-application of relief. For example, if a postman is
allowed to enter the house for delivering the dak, but if he went inside the house without permission
he would be liable for trespass. Similarly, if the invited guest is asked to sit in the drawing room, he
without any permission enters the bedroom he can be liable for trespass.

As in the case of Lakshmi Rajan vs. Malar Hospital Ltd.[6], the old aged women of 40 noticed the
lump in her breast. The lump has no effect on her uterus, but during surgery, her uterus was removed
without any justification. It was held that the hospital authorities were liable for deficiency in service.
It was also held that the patient’s consent for operation did not imply her consent for removal of the
uterus.

b. Consent should not be obtained by fraud:

It is necessary that the consent so obtained by fraud would be void and the defence would not be
available under such circumstances. As in the case of R. vs. Williams[7] the accused for punished for
raping 16 years old minor girl by obtaining consent by fraud under the pretence that his act was an
operation to improve her voice. Whereas in the other case of R. vs. Clarence[8]  in this case, it was
held that a husband was not liable for an offence when the husband failed to make her aware of his
condition. Under the first case the girl was not knowing the nature of activities being done, she was
under the misconception of the surgical operation was being done and therefore the accused was
liable and the defence was not available for him. Whereas in the second case the wife knew the
nature of the act being done regardless that she didn’t know its consequences. Since the consent was
given knowingly and without any fraud, the husband was able to save himself.