Volenti non fit injuria

Torts 106

Submitted By
Raghavendra Krishnaprasad Nadgauda
UID: SM0122049
I Year, I Semester, B.A. LL. B. (Hons.)

Faculty-In-Charge
Ms. Kushboo Damabi
Associate Professor of Law

National Law University and Judicial Academy, Assam

Nov 14th, 2022.
I. Introduction.........................................................................................................................1

1.1 Overview.............................................................................................................................2

1.2 Aims....................................................................................................................................3

1.3 Objectives...........................................................................................................................3

1.4 Scope and Limitation..........................................................................................................3

1.5 Review of Literature...........................................................................................................3

1.6 Research Questions.............................................................................................................4

1.7 Hypothesis...........................................................................................................................4

1.8 Research Methodology........................................................................................................4

II. Volenti non fit injuria: History And Evolution................................................................5

III. Essential Elements Required To Take The Defence Of Volenti non fit injuria..........7

3.1 Consent must be free and must not be obtained through the use of force..........................8

3.2 Consent should not be obtained by fraud............................................................................8

3.3 Mere knowledge does not imply assent..............................................................................9

3.4 Negligence of the defendant................................................................................................9

IV. Distinction between Volenti non fit injuria and Contributory Negligence as a defence
under law of torts..................................................................................................................10

V. Distinction between Volenti non fit injuria and Contributory Negligence as a defence
under law of torts...................................................................................................................12

5.1 Rescue cases......................................................................................................................12

4.2 Unlawful Acts...................................................................................................................13

5.3 Breach of Statutory Duty..................................................................................................13

VI. Conclusion.......................................................................................................................14

Bibliography..........................................................................................................................15

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 INTRODUCTION

Voluntary harm is not actionable and does not qualify as a legal injury. The maxim Volenti
non fit injuria states that the plaintiff assents to assume the risks of an act committed by the
defendant or his agent. When a person exposes himself voluntarily and with full knowledge,
he cannot claim damage. Volenti non fit injuria is founded on fairness and common sense.
When someone is victimised by an act they invited or agreed to, they cannot claim it was
wrong and complain about it.1 The maxim assumes that the defendant committed a tortious
act. 2 It firstly applies to deliberate acts that would otherwise be tortious. A trespasser who is
aware that there are spring guns in a wood, even if he is unaware of their exact locations,
cannot claim damages for injuries sustained as a result of accidentally stepping on the latent
wire connecting the gun and setting it off. 3, for he voluntarily exposes himself to the mischief
which has happened. However, if someone is shot by an unintentionally fired spring pistol
while scaling a wall in pursuit of a stray bird, they may be entitled to damages.4

Volenti non fit injuria is derived from Latin which means "volantary taking of risk." It covers
situations where the plaintiff consents to the effects of the acts while fully aware of its nature
and experiences a loss as a result. One of the defences available to a defendant under tort law
is Volenti non fit injuria. According to the maxim, the defendant has a legal option to avoid
being held responsible for the plaintiff's wrongs. According to the maxim, a person cannot
obtain a remedy under tort law if they knowingly cause themselves legal harm. The idea of
the maxim is that if a person consents for the infliction of legal harm upon himself, he cannot
have a remedy under the law of torts.

1
Smith v Baker & Sons, (1891) AC 225.
2
Wooldridge v Summer, (1962) 2 All ER 978 : (1963) 2 QB 43 (CA)
3
Ilott v Wilkes, (1820) 3 B & Ald 304.
4
.Bird v Holbrook, (1828) 4 Bin 628.
1.1 Overview
Volenti non fit injuria is one of the general defences available to the defendant under
the law of torts. A direct translation of the maxim would mean ‘to one who volunteers,
no harm is done.’ The maxim acts as a complete defence that absolves the defendant
of any harm suffered by the plaintiff. It is often stated that the plaintiff consents to the
risk associated with the act, however the maxim is limited in its scope and varies from
the consent provided in other circumstances. The maxim requires that the plaintiff has
entered into an agreement expressly or through conduct with complete knowledge of
the risks associated with the act. There is a considerable overlap of Volenti non fit
injuria with contributory negligence and since the introduction of the Law Reform
(Contributory Negligence) Act, 1945, the courts have been hesitant to completely
absolve the liability of the defendant and prefer to appropriate the losses between both
the parties.

Keywords: Volenti non fit injuria, harm, conduct, consent knowledge, plaintiff,
defendant contributory negligence, liability.

2
 1.2 Aims
The aim of this project is to understand the maxim of Volenti non fit injuria as a defence
under law of torts. To do so, the researcher would refer to judicial precedents and review
the existing literature by eminent scholars.

1.3 Objectives
1 To understand the history and evolution of the maxim Volenti non fit injuria
2 To explain the essential elements required to take the defence of Volenti non fit injuria
3 To explain the instances where the maxim would not be applicable and understand the
rationale behind it.

1.4 Scope and Limitation

Due to the availability of defences to a defendant under the law of torts, the researcher has
limited the scope of his research.

1.5 Research Question

i. How did the maxim Volenti non fit injuria come into being and how did it evolve into
its current form?
ii. What the essentials elements that are necessary while availing the defence of Volenti
non fit injuria?
iii. What are the differences between Volenti non fit injuria and What are the situations
where the maxim will not be applicable, if any?

3
1.6 Hypothesis

The extent of which the defence of Volenti non fit injuria can be availed and the overlap
of the maxim Volenti non fit injuria with other defence(s) is not distinctly clear as the
interpretation of these defences are done through judicial precedents and there is no
statutory backing to tort law in India.

1.7 Review of Literature

In the article “Volenti non fit injuria” in actions of Negligence, Charles Warrens explains the
defence of Volenti non fit injuria with special focus on cases where one of the parties has
been negligent. He succinctly explains the duty of care that is to be taken by the defendant in
order to prevent harm to the plaintiff. The article provided the researcher insights into the
topic, which have been detailed in the project.

In the article Volenti non fit injuria, A.J.E . Jeffery5 questions whether the plaintiff’s exposure
to danger protects the defendant from liability and explains the rationale behind the
application of the maxim Volenti non fit injuria. It also explains the importance of conduct in
ascertaining the consent of the plaintiff to undergo harm to the act of the defendant.

1.8 RESEARCH METHODOLOGY

The researcher solely used the doctrinal type of research for this project. As doctrinal research
refers to “theory-testing” or “knowledge building” research, the researcher accordingly
adopted a method of study where secondary sources were scrutinized. His secondary sources
ranged from studying the work of leading figures in legal academia, authorities and judicial
decisions. In addition, the researcher employed the OSCOLA citation format.

5
A.J.E. Jaffrey, Volenti non fit injuria,01, The Cambridge Law Journal (2022)
4
 II. Volenti non fit injuria: History And Evolution

The maxim Volenti non fit injuria has its roots in Aristotle’s Ethics where the phrase is
used for the first time6 .Chapter eleven of Aristotle’s Ethics work deals with the question
of whether a man can do wrong himself, or suffer wrong willingly 7. More pertinently
Aristotle is discusses the issue of a person who suffers injustice when someone commits
suicide. He concludes that the person who commits suicide suffers at his own will and
“nobody suffers injustice voluntarily”.

There are several Roman law texts which appear to recognize the principle inherent in the
maxim Volenti non fit injuria . However, in the final analysis, it still remains uncertain
whether in Roman law the volenti idea was a legal rule, or merely a loose expression finding
application on consideration of some instances of injuria. The term  ‘Volenti non fit injuria’
originally translates to Nullainiuriaest, quæ in volentem fiat formulated by the prominent
Roman jurist Ulpian8. The maxim of Volenti non fit injuria means a specific assent by the
party injured to a particular act, which if done without such assent, would constitute a legal
wrong.9

The maxim here, stood on the principle of estoppels, which used to be applicable to the
Roman citizens who had consented for being sold as slaves. The defence here argued that the
Volenti non fit injuria cannot be applied as for applying negligence there has to be a contract
between the parties and in the absence of such a contract no negligence where duty is based
on proximity or ‘neighbourship’ in Atkinian sense. In Dann vs. Hamilton10 the judge
expressed concern whether Volenti non fit injuria could ever apply after the act is done
because if the consent is obtained from the plaintiff before the act of negligence is committed
then the plaintiff would not have the knowledge of the nature of the act.

 Khimji vs Tanga Mombasa transport co. ltd (1962)11 The doctrine of Volenti non fit
injuria was rightly applied. The plaintiff along with some other people were travelling in a
bus. The bus reached a place where the road was flooded. The passengers insisted to move

6
Winfield, J. and J. A. Jolowicz, Tort, 11th ed., Sweet and Maxwell, London, 1979, p. 656.
7
Thomson, J. A. K., The ethics of Aristotle, Penguin, London, 1955, pp. 168-170.
8
Chatteron v. Gerson [1981] Q.B. 432
9
Charles Warren, “Volenti non fit injuria” in Action of Negligence 8, Harvard Law
Review457-471, 461 (1895)
10
Cf. Canterbury v. Spence(1972) 464 F. 2d 772
11
Khimji vs Tanga Mombasa transport co. ltd (1962) E.A. 419
5
ahead although the driver disagreed. Eventually the driver gave into the demand of the
passengers. The bus met with an accident and the people in it including the defendant died.
The court held that the maxim of Volenti non fit injuria was applicable in the particular case
and the plaintiff was not granted relief.

III. ESSENTIAL ELEMENTS REQUIRED TO TAKE THE DEFENCE OF VOLENTI NON FIT INJURIA

In order to avail the defence of Volenti non fit injuria the situation must meet certain
essential conditions. The maxim holds good when the 1. plaintiff knew or could have
6
reasonably foreseen a risk of injury. Example (Eg. Henceforth) X went to watch a cricket
match in a stadium. He was injured by the breaking of a glass slab. X sued the stadium
authorities for compensation. The authorities cannot claim the defence of Volenti non fit
injuria as X could not have possibly foreseen the breaking of a slab. The maxim is also
applicable in instances where 2. the plaintiff has consented either by statement or conduct
to suffer the consequences of an act without compulsion or threat. Eg. X signs a
declaration before attempting to skydive which seeks to waive the liability off the skydiving
company in the event of a mishap. Had X not signed the document, even then the company
would be able to claim the defence of Volenti non fit injuria as consent could be implied
through his conduct. It is not enough to show that the plaintiff knew about the risk, it must be
shown that the plaintiff agreed to suffer from the reasonably foreseeable risks associated with
the act. In addition, it must also be ensured that the risk was freely taken and the plaintiff was
not forced to enter such a situation.

Consent- a broad term – only certain forms of consent can act as a defence

3.1 Consent must be free and must not be obtained through the use of force

It is pre conditional that when pleading for defence under the maxim, the consent given by
the plaintiff must be free and should not be obtained by fraud or any other means that
may vitiate free consent. Use of such means of obtaining consent by the defendant would
make the defence invalid.

As in the case of Lakshmi Rajan vs. Malar Hospital Ltd.12, the plaintiff, a woman aged 40
noticed a lump in her breasts. She was advised to undergo surgery and get the lump
removed. The lump had no effect on her uterus. While performing the surgery, the uterus
was also removed although there was no possible harm to her uterus. The plaintiff was
granted compensation and the maxim Volenti non fit injuria was not applicable as the
plaintiff had consented for the surgery of the lump and not for the removal of her uterus.

3.2 Consent should not be obtained by fraud:

Lakshmi Rajan vs. Malar Hospital Ltd III (1998) CPJ 586(Tamil Nadu SCDRC).
12

7
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. v. Williams13 the appellant
who was a music teacher had been convicted for the offence of rape with a minor by
obtaining her consent under the pretence that it was an exercise that would help the girl
improve her voice was not granted relief and the conviction was upheld as the appellant had
obtained consent from the girl in a fraudulent manner. Whereas in the other case of R. v.
Clarence14  , the husband who had knowledge of being infected with a sexually transmissible
disease has sexual intercourse with his wife who is unaware of the fact that her husband is
suffering from such a disease. It was held that the sexual intercourse was consensual and the
husband was spared from conviction. Under the first case the plaintiff was unaware of the
nature of act being done, she was under the misconception that an exercise was being done
and therefore the accused was liable and was not granted defence under the maxim Volenti
non fit injuria. Whereas in the second case the plaintiff was aware about the nature of the act
and had consented for the same. Since the consent was obtained without the use of force by
the defendant and the consent by the plaintiff was free, the defendant was allowed to defend
himself under the maxim.

3.3 Mere knowledge does not imply assent:

Mere knowledge of the risks associated with the act is not sufficient to claim the defence
of Volenti non fit injuria. The defendant must prove that the plaintiff knew about the risks
and had voluntarily agreed to suffer harm which could be caused by the act

As in the case of Bowater vs. Rowley Regis Corporation15 The plaintiff who worked as a
carter was sent out to gather road sweepings from various locations. His employer, the
municipal corporation, gave him a horse and waggon for this reason. The plaintiff was told
to take out a horse by his foreman, despite the fact that they both knew it was unruly
and had twice bolted when another worker was working alongside him. The carter
objected, but after being informed that the borough surveyor had ordered it, he
ultimately consented to use the problematic horse. A few weeks later, the horse bolted,
throwing the plaintiff from the cart and causing him to sustain injuries. The claimant filed a
lawsuit against the municipal corporation for failure to provide him with a horse that was safe

13
 R. v. Williams (1923) 1 K.B. 340
14
R. v. Clarence (1888) 22 Q.B.D. 23.
15
Bowater v. Rowley Regis Corporation (1944) K.B. 476
8
and was suitable for the kind of work that he had to do. The plaintiff was granted relief as
mere knowledge of the condition of the horse did not imply assent by the plaintiff.

3.4 Negligence of the defendant

The act must be done only to the extent to which consent was given. Thus, in the sport of
boxing, if one of the boxers gets injured during the course of play he cannot claim damages
as he had consented to the act. But if he gets injured due to the breaking of the boxing ring, he
can claim damages from the organizers as they were negligent in their act and the boxer
had not consented to suffer injuries from the same. Similarly, a patient cannot claim
damages for a surgery that he had consented whereas he can claim damages if he can show
that the doctor was negligent in carrying out his duty and failed to provide reasonable care to
the plaintiff

In the case of Slater v. Clay Cross Ltd16, the plaintiff was passing through a railway tunnel
owned by the defendant. The defendant was aware that the plaintiff was passing through
the railway tunnel and hence had instructed the train driver to blow a whistle before passing
through the tunnel. The driver did not follow the instructions given by his master and as a
result of which the plaintiff was injured. It was held that the driver was negligent towards
theplaintiff and was not allowed to take the defence of Volenti non fit injuria.

IV. Distinction between Volenti non fit injuria and Contributory Negligence as a defence
under law of torts

The maxim serves as a full defence for the defendant's activity because the plaintiff gave his a
consented to bear the consequences of the defendant's action. Volenti non fit injuria and
"contributory negligence" had no clear distinction prior to 1945. Volenti non fit injuria
could only be used as a defence as when there was proof of a breach of duty. The judges
disagreed on the application of the maxim. Some felt that if there is any pre-existing
16
Slater v. Clay Cross Ltd (1956) 2 All E.R. 625: (1956) 2 Q.B. 264
9
danger and the plaintiff knew about it and gave their consent to it, then there will be no
defence available. Some believed that for the defence to be effective, there must be
express or implied consent between the parties.

The rule of contributory negligence is considered to apply when both the plaintiff and
the defendant are at fault.

The defence of Volenti non fit injuria exonerates the defendant of all wrongdoings.
Contrarily, in a situation of contributory negligence, the defendant is only responsible for
the extent of the harm he caused. Therefore, the plaintiff can claim damages to the extent
where the defendant was liable and not more whereas in Volenti non fit injuria, the
plaintiff cannot claim compensation as the plaintiff had himself consented to the risks

of the act.

In the case of contributory negligence, both the plaintiff and the defendant are negligent,
whereas in the case of Volenti non fit injuria, the plaintiff consents to the risks of the act
and the defendant takes reasonable care to avert any injury that is reasonably foreseeable.

The plaintiff in Volenti non fit injuria cases is aware of the nature of harm as opposed to
contributory negligence, where the plaintiff is unaware of the extent of potential damage.

Illustration

X drives his car in a rash manner while Y crosses the road when the signal was turned red for
pedestrians. Y gets injured due to the negligent driving of X. He would be liable only to the
extent of his negligent driving.

X drives his car in a rash manner. Y, a pedestrian crosses the road when the traffic signal is
green for pedestrians. Y gets injured due to the negligent act of X. He would be entirely liable
for his act and cannot take the defence under Volenti non fit injuria.

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 V. Instances where the defence of Volenti non fit injuria cannot be availed

There are certain situations where the maxim cannot be applied. Such limitations have
been placed in order to ensure sufficient protection to the plaintiff for the acts of the
defendant which he had not voluntarily consented to.

5.1. Rescue cases

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Rescue cases are an exception to the maxim. If the plaintiff voluntarily rescues somebody
which happened as a consequence of the defendant’s act, he can claim damages from the
defendant and the defendant cannot claim defence under the maxim.

As in the case of Haynes vs. Harwood17  The servant of the defendant had left his horse van
unattended on a busy street. Some mischievous boys started to throw stones towards the van.
The horses panicked and started running aimlessly. A policeman jumped in to prevent harm
to the people on the busy street. Although he was successful in preventing the danger, he
suffered physical injuries and hence filed a suit. The defendant took the defence of novus
actus interveniens where a new intervening act by the children broke the chain of events
which would otherwise made the defendant liable and Volenti non fit injuria. It was held
that the defendant was liable and the maxim of Volenti Not Fit Injuria was not
applicable as the act of the policeman was intended to rescue the crowd.

Baker vs. T.E. Hopkins & son 18 The defendants were a business that had a well cleaning
contract. They did this by installing an engine within the well, which started to release
hazardous vapours. The on-site manager instructed the staff to halt their work inside the
well until he arrived to inspect it. Two workers disregarded this and carried on with their
job inside the well. Both the workmen died due to the hazardous vapours. Additionally, a
doctor who was trying to help them perished when his rope snagged and prevented him
from being rescued from the well in time. It was held that the defendant was liable for the
compensation, as it was the rescue case. Even though he voluntarily agreed to take the
risk, the plaintiff was liable to compensation.

5.2 Unlawful Acts

No consent can legalize any unlawful act. This is one of the prime exceptions of this maxim
i. It doesn’t matter that every other essential are completely fulfilled even then the defence
of Volenti non-fit Injuria cannot be taken.

For example, A shoots B then A cannot escape by saying that B had given his consent for
the same to B. A cannot take the defense of Volenti non-fit injuria.

17
Haynes v. Harwood (1935) 1. K.B. 146.
18
Baker v. T.E. Hopkins & son (1959) 1 W.L.R. 966: (1959) 3 All E.R. 255.
12
  In Lane v. Holloway When the plaintiff, an old man challenges the defendant to a fight
and on his coming forward, the plaintiff menacingly gave a punch on the defendant’s
shoulder whereas the defendant blew his fists on the plaintiff which caused severe injuries
to his eye which required surgical treatment. The principle of Volenti non fit injuria was
not recognized in this case and the defendant was liable to provide compensation to the
plaintiff.19 In simple words, any illegal and Unlawful act cannot be justified by taking the
defence of Volenti non-fit injuria.

5.3 Breach of Statutory Duty

This doctrine is not applicable in a situation where action relies on the breach of statutory
duty. This limitation was clearly explained in Wheeler v. New Merton Boards lt20. An 18-
year-old labourer was using a machine that cuts cardboard with rotating, sharp knives
when, while he was collecting the shavings, the machine severed his hand and fingers.
According to the Factory Workshop Act of 1901, the employer was in violation of his
duty to fence and/or guard the machine because it was a dangerous one. It was said that
the worker knew he could have stopped the machine while gathering shavings by pulling a
lever, but he never did. It was held by the court that the maxim Volenti non fit injuria was
not a defence to a personal injury claim against an employer when there is a breach of
statutory duty from the employer’s side.

VI. Conclusion

Volenti non fit injuria as a defence can only be availed by the defendant when the plaintiff
had voluntarily consented to the risks associated with an act. The defendant also owes
the plaintiff a reasonable duty of care and if the plaintiff can show that the defendant
was negligent in providing reasonable care to the plaintiff, then the defendant will not be
19
Lane v Holloway, (1967) 3 All ER 129 : (1967) 3 WLR 1003 (CA).
20
Wheeler v. New Merton Boards lt (1933) 2 KB 297
13
able to take the defence of Volenti non fit injuria. Certain essential elements are required to
take the defence of Volenti non fit injuria which includes free consent and knowledge of the
nature of act. The consent should not be obtained by the use of force or under
compulsion of threat. There are certain exceptional cases where the maxim will not be
applicable which include rescue cases, unlawful activities and breach of statutory duty.

From the sources, cases and literature available on the topic, the researcher has come to a
conclusion that Volenti non fit injuria even though a defence under tort law has a broad
spectrum of application, but as proposed in the hypothesis that the defence is diretly related to
the duty of care observed by the defendant. The application of defence depends on who is
negligent. The evolution of Volenti non fit injuria has been through judicial precedents
although there is no legislative backing to the law of torts.

Due to these variables, the researcher is of the opinion that with changing times and
situations, the concept of Volenti non fit injuria will continue to evolve and be interpreted and
applied in various situations over the course of time.

BIBLIOGRAPHY

Articles

1. A.J.E. Jaffrey, Volenti non fit injuria,01, The Cambridge Law Journal (2022)

2. Charles Warren, “Volenti non fit injuria” in Action of Negligence 8, Harvard Law
Review457-471 (1895)

14
Books

1. Thomson, J. A. K., The ethics of Aristotle, (Penguin, London, 1955).

2. Winfield, J. and J. A. Jolowicz, Tort, 11th ed., (Sweet and Maxwell, London, 1979).

Case Laws

1. Smith v Baker & Sons, (1891) AC 225.

2. Wooldridge v Summer, (1962) 2 All ER 978 : (1963) 2 QB 43 (CA)
3. Ilott v Wilkes, (1820) 3 B & Ald 304.
4. .Bird v Holbrook, (1828) 4 Bin 628.
5. Chatteron v. Gerson [1981] Q.B. 432
6. Cf. Canterbury v. Spence(1972) 464 F. 2d 772
7. Lakshmi Rajan v. Malar Hospital Ltd III (1998) CPJ 586(Tamil Nadu SCDRC).
8.   R. v. Williams (1923) 1 K.B. 340
9. R. v. Clarence (1888) 22 Q.B.D. 23.
10. Bowater v. Rowley Regis Corporation (1944) K.B. 476
11. Smith v. Baker (1891) A.C. 325
12. Haynes v. Harwood (1935) 1. K.B. 146.
13. Baker v. T.E. Hopkins & son (1959) 1 W.L.R. 966: (1959) 3 All E.R. 255.
14. Lane v. Holloway, (1967) 3 All ER 129 : (1967) 3 WLR 1003 (CA).
15. Wheeler v. New Merton Boards lt (1933) 2 KB 297
16. Slater v. Clay Cross Ltd (1956) 2 All E.R. 625: (1956) 2 Q.B. 264
17. Khimji vs Tanga Mombasa transport co. ltd (1962) E.A. 419

15
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