KARNAVATI UNIVERSITY

UNITEDWORLD SCHOOL OF LAW

LAW OF TORTS

THE DEFENCE OF VOLENTI NON FIT INJURIA

Submitted To:

Dr. Aseem Chandra Palliwal

(Associate Professor)

Submitted By:

Kashak Agarwala
(202304010016)

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ACKNOWLEDGEMENT

I would like to express my sincere gratitude to our professor, Mr.Aseem Chandra Palliwal, for
his guidance and support throughout the Law of Torts course. Aseem sir is an innovative and
knowledgeable educator who made the course both challenging and enjoyable. His lectures
were clear and engaging, and he was always available to answer our questions and provide
feedback on our assignments. I am particularly grateful for his emphasis on practical
application.
I would also like to thank my classmates for their support and collaboration throughout the
course. In addition to our professor and classmates, I would like to thank our family and
friends for their support during the course. They encouraged us to stay motivated and to do
our best work. I am grateful for their love and support.
Finally, I would like to thank the Dean ma’am, United world School of Law, Prof. Dr. P.
Lakshmi for providing us with the opportunity to learn from such a distinguished faculty and
to study in such a supportive environment.

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 CONTENTS
INTRODUCTION........................................................................................................................1

VOLENTI NON FIT INJURIA...................................................................................................2

SIGNIFICANCE OF VOLENTI NON FIT INJURIA.................................................................3

ESSENTIALS FOR THE DOCTRINE........................................................................................4

WHEN THE DEFENCE OF VOLUNTI NON FIT INJURIA IS AVAILABLE?........................6

WHEN THE DEFENCE OF VOLUNTI NON FIT INJURIA IS NOT AVAILABLE?..............7

CONCLUSION............................................................................................................................8

LITERATURE REVIEW: Volenti Non Fit Injuria......................................................................9

REFERENCES...........................................................................................................................10

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 INTRODUCTION

The word “tort” is derived from the Latin word ‘tortum’ which means ‘to twist’. It
indicates the behavior that is twisted, dishonest, illegal, or not straight forward. It is
equivalent to the English word “wrong.” The English law that has been adapted to Indian
situations and changed by Acts of the Indian Legislature is the tort law as it is currently
administered in India. Its inception is associated with the founding of British courts in India.
In India, the English legal system is implemented based on principles of equality, impartiality,
and morality. Tort may be defined as a civil wrong which is redressible by an action for
unliquidated damages and which is other than a mere breach of contract or breach of
trust. Defining tort Salmond says, “It is a civil wrong for which remedy is a
common law action for unliquidated damages and which is not exclusively the breach
of a contract or the breach of trust or other merely equitable obligation”. On the other
hand, according to Winfield,” Tortiuous liability arises from the breach of a duty
primarily fixed by the law: this duty is towards persons generally and its breach is
redressible by an action for unliquidated damages.”1
Torts involve things like trespassing onto someone's property, trespass to person, negligence,
defamation and nuisance. The defendant would be responsible for any damages awarded in a
claim brought by the plaintiff alleging a particular tort, provided that the plaintiff can prove
each of the tort's elements. It is possible for the defendant to avoid liability even in this kind
of circumstance. One way to accomplish this is by raising a defense. Volenti-non-fit injuria,
defence of consent , catastrophe, private defense, plaintiff, wrongdoer, mistake, statutory
authority, Act of God, and necessity are the general defenses.

1
(Bangia, 2012)

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 VOLENTI NON FIT INJURIA

Volenti non fit injuria is an often-quoted form of the legal maxim said by the Roman
Jurist Ulpian which originally reads as: ‘Nulla iniuria est, quae in volentem fiat’.2
Volenti non fit iniuria which in Latin states “to a willing person, injury is not done”.
According to a common law principle, one cannot file a tort or delict lawsuit against another
person if they knowingly put themselves in a situation where they may suffer some level of
harm. Volenti only applies to risks that one would reasonably expect they have taken on as a
result of their activities.
Volenti Non Fit Injuria, also known as the defence of consent, is a defense used by defendants
to avoid paying damages to victims who suffer injuries due to someone else's lack of care or
breach of duty. The defendant argues that the plaintiff voluntarily agreed to suffer harm, and
therefore, they cannot complain about it later. This defense is strong as it asserts that no
person who has voluntarily waived or abandoned a right can enforce that right later. His
consent acts as a strong defence. For example, a sportsperson cannot sue another party for
injury if the contract explicitly indemnifies the other party of foreseeable injury or risk.
However, a boxer who consents to being hit but does not consent to the injuries expected
from being hit can't be sued under this maxim. This maxim has wide applicability and is often
observed in our daily lives.
The 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.
It is one of the most important defenses used against the petitioner in the pertinent instances
and falls under the category of justification of torts.

SIGNIFICANCE OF VOLENTI NON FIT INJURIA

2
(Volenti non fit injuria, n.d.)

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  Tort law aims to hold individuals accountable for damages caused and
discourage others from doing the same. However, in today's world, where
wrongful convictions are more common, the significance of legal defenses,
particularly Torts-related ones, is undervalued.
 Torts Law is an uncodified subject, allowing for more interpretation and
increasing the chances of wrongful convictions. Therefore, Torts defences are
crucial for a free and fair trial, ensuring the accused receives the appropriate
punishment.
 The Latin maxim Volenti non fit injuria is a relevant Torts defense that focuses
on consent, a topic that has been debated for centuries. This maxim is essential
for ensuring that the accused receives the punishment they deserve. Therefore,
Torts defences are essential for a free and fair trial and ensuring that the accused
receives the punishment they deserve.

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 ESSENTIALS FOR THE DOCTRINE

The following conditions must be fulfilled in order for the Volenti Non Fit Injuria defense to
be viable:

1. There should be an agreement: To be relevant, the defence required an agreement to have

been made in the first place. There might be an explicit or implicit agreement. If a
contractual term or notification is included, that would be an example of an express
agreement. That being said, this would be governed by section 2 of the Unfair Contract
Terms Act of 1977. When the claimant's actions in the given circumstances indicate a
willingness to accept both the legal and physical dangers, there may be an implicit
agreement in place.
2. The agreement should have been entered into voluntarily:
 This consent should be free : As we saw in Hall v. Brookland 3, the petitioner
suffered injuries as a result of a race car. That being said, since he accepted the risk by
going to the same racing event, the organization committee was not held accountable.
The details of the Wooldridge v. Sumner4 case were as follows. The plaintiff was a
photographer who was positioned at the arena's edge when he started to take pictures
of the horse exhibition. A horse that belonged to the defendant came around the curve
too quickly. The plaintiff was terrified as the horse charged forward, falling into the
path of the charging animal and suffering severe injuries as a result. The defendant
was granted the defense of volenti non fit injuria, which was proper.
 Should not be the one obtained by fraud or under compulsion: The case to
which we can refer in this respect is R v. Williams5, in which a man instructing an
underage girl in singing convinced her that having sex would enhance her voice. He
was eventually held accountable for his deeds since the permission was acquired
through fraud.
3. The agreement should have been made in full knowledge of the nature and extent
of the risk involved in the act: The amount of risk involved had to have been disclosed
at the time the permission was granted. The defendant must demonstrate that the plaintiff
was fully aware of the type and scope of the danger in question in order for the defense of
3
(Hall v. Brookland, 1932)
4
(Wooldridge v. Sumner )
5
(R v. Williams)

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 volenti non fit injuria to be successful. However, awareness alone does not constitute
consent. The plaintiff ought to have agreed to take the damage after being fully aware of
the danger.

Burden of proof:
When a defendant asks for the defense of volenti non fit injuria, it is his responsibility to
prove that the plaintiff was fully aware of the act and gave his consent to the risk involved. In
order to successfully raise this defense, the defendant has to show that the plaintiff was aware
of the extent of the risk involved in the act.

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 WHEN THE DEFENCE OF VOLUNTI NON FIT INJURIA IS
AVAILABLE?

In order for a defendant to put forward the defense of "volenti non fit injuria," it must be
demonstrated that the plaintiff voluntarily agreed to the act. If the plaintiff's permission was
acquired by deception, coercion, or a false impression, it would not be a strong defense. The
need that the defendant's actions match the actions for which permission is granted must also
be emphasized.
We could look to a case law to help us understand this. The complainant in Lakshmi Rajan v.
Malar Hospital Ltd.6 was a married lady. She became aware of the unpleasant lump growing
in her breast. Her uterus was removed during surgery for no apparent reason, even though the
tumor had no influence on it. It was decided that the hospital was accountable for any
mistakes in treatment. The patient's agreement for the procedure did not include her approval
of the uterus being removed, the court said.

6
(Lakshmi Rajan v. Malar Hospital Ltd)

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 WHEN THE DEFENCE OF VOLUNTI NON FIT INJURIA IS NOT
AVAILABLE?

1. Consent obtained by Fraud: It wouldn't be a strong defense if the permission was acquired
by fraud. However, it is important to remember that, contrary to what was decided in the
Hegarty v. Shine7 case, simple fact hiding would not constitute fraud. According to
criminal law, consent is deemed vitiated by deception if it creates a misunderstanding
about the true nature of the act. Therefore, in a case where the accused, a music instructor,
persuaded the victim to have sex with him under the false impression that doing so would
enhance her singing, the accused was found guilty of rape8.
2. Breach of duty or negligence: The defence of volenti non fit injuria is not applicable if the
act is due to a breach of statutory duty, meaning an employer cannot claim it if they
caused the injury. However, if the employee's negligence or breach of duty is knowingly
accepted by the employer and the employer is not guilty, the defendant may seek the
defense of volenti non fit injuria. In the case of Slater v. Clay Cross Co. Ltd 9, the plaintiff
was injured by a train due to the defendant's negligence, as the train driver failed to slow
down and blow a whistle, resulting in the plaintiff's injuries. The court held the defendant
liable.
3. Consent Obtained Under Compulsion: In Bowater v. Rowley Regis Corporation10, the court
ruled that a person cannot be truly willing unless they are in a position to choose freely.
Freedom of choice requires full knowledge of the circumstances and the absence of any
feeling of constraint. A person cannot give consent when compelled to take on risky work
that they would not have done if they had a free choice. For example, a laborer may
undertake a task to save their job, fearing that refusal to comply would make them unfit
for the job and put their job at stake.
4. Knowledge alone does not equate Consent: To apply a maxim defense, the defendant must
prove that the plaintiff knew about the risk and agreed to suffer the harm. These two
elements are crucial for claiming this defense. Without the second condition, the first
condition would be inconclusive, making merely proving the plaintiff's knowledge of the
harm insufficient.

7
(Hegarty v. Shine , 1878)
8
(R v. Williams)
9
(Slater v. Clay Cross Co. Ltd, 1956)
10
(Bowater v. Rowley Regis Corporation, 1944)

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 CONCLUSION

The Volenti Non Fit Injuria defense is a crucial aspect of tort law, but it has limitations,
particularly in rescue cases. The defendant cannot use this defense if the plaintiff takes the
risk of saving someone else, as they are not guilty of the offense. The court must ensure that
the defendants have knowledge of the risk and agreed to suffer it, and that these elements are
present and proven. Without these elements, defendants cannot escape liability. This defense
is only applicable when the defendant is not guilty of any offense. In summary, the tort law
allows for a limited application of the volenti non fit injuria defense. The defense of volenti
non fit injuria may occasionally be precluded due to the defendant's carelessness. On other
occasions, additional restrictions that were previously specified in the text impede the
defense's reach. Generally, volenti no fit injuria is a strong defense in tort cases because it
allows the defendant to avoid culpability entirely when the maxim is valid.

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 LITERATURE REVIEW: Volenti Non Fit Injuria

Sr Natur Name of Covered/ Review Research Intended

N e Litera Gap in Research
o of ture Literature
. Lit
era
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e
1. Journal Volenti Non Volenti Non Fit Injuria is a The case laws A more up-to-
Fit Injuria defense in Tort Law that implies provided are date analysis
(Mittra, a person who willingly consents insightful, but involving recent
2021) to suffer harm cannot later legal landscapes cases could
complain about it. This defense, evolve enhance the
often referred to as the defense understanding of
of consent, requires the how courts are
defendant to prove that the currently
plaintiff freely gave consent. interpreting and
The consent could be implied or applying the
express, and it must be shown defense.
that the plaintiff knew about the
risks and agreed to accept them.
The defense is not available if
consent is obtained through
fraud, under compulsion, or due
to negligence or breach of
statutory duty. In cases where
the plaintiff voluntarily accepts a
known risk, the defendant may
use this defense, but it does not
hold if there is negligence on the
part of the defendant.
Knowledge of the risk alone
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 does not equate to consent; the
plaintiff must agree to suffer the
harm willingly. Case laws such
as Lakshmi Rajan v. Malar
Hospital Ltd., Smith v. Baker,
Dann v. Hamilton, Bowater v.
Rowley Regis Corporation, and
Imperial Chemical Industries
Ltd v Shatwell illustrate the
application and limitations of
Volenti Non Fit Injuria. The
defense cannot be invoked in
rescue cases, and its
applicability requires the
presence of both knowledge of
the risk and agreement to accept
it.

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 REFERENCES

Bangia, D. R. (2012). Law of Torts. In Law of Torts (, 22nd edn ed., p. 4). Allahabad Law
Agency.
Bowater v. Rowley Regis Corporation (1944).
GENERAL DEFENCES. (n.d.). Retrieved from https://papers.ssrn.com/sol3/papers.cfm?
abstract_id=3675389
Hall v. Brookland (1932).
Hegarty v. Shine (1878).
know-all-about-the-defence-of-volenti-non-fit-injuria. (n.d.). know-all-about-the-defence-of-
volenti-non-fit-injuria. Retrieved from
https://lawctopus.com/clatalogue/ailet-pg/know-all-about-the-defence-of-volenti-non-
fit-injuria/
Lakshmi Rajan v. Malar Hospital Ltd.
R v. Williams.
Singh, J. G. (n.d.). Ratanlal & Dhirajlal’s The Law of Torts. In Ratanlal & Dhirajlal’s The
Law of Torts (p. 1). LexisNexis Butterworths.
Slater v. Clay Cross Co. Ltd (1956).
Volenti non fit injuria. (n.d.). Retrieved from Wikipedia: www.wikipedia.com
VOLENTI NON FIT INJURIA. (n.d.). Retrieved from https://www.lawcolumn.in/volenti-
non-fit-injuria-everything-needed-to-know/
volenti-non-fit-injuria. (n.d.). Retrieved from https://blog.ipleaders.in/volenti-non-fit-injuria/
Wooldridge v. Sumner .

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