2016B.A.LL B131 Inspecting the scope of VOLENTI NON FIT INJURIA TORT’S PROJECT TAUGHT BY KAVITA SINGH MA’AM SUBMITTED BY JAY SINGHEE Acknowledgement I have taken efforts in this project. However, it would not have been possible without the kind support and help of many individuals and organizations. I would like to extend my sincere thanks to all of them. I am highly indebted to Kavita Singh Ma’am for her guidance and constant supervision as well as for providing necessary information regarding the project & also for her support in completing the project. I would like to express my gratitude towards all staff member of National Law Institute University, Bhopal for their kind co-operation and encouragement which help me in completion of this project and providing us with all the resources required to make this project. My thanks and appreciations also go to my colleague in developing the project and people who have willingly helped me out with their abilities. Inspecting the scope of VOLENTI NON FIT INJURIAPage | 1 TABLE OF CONTENTS Table of Contents ......................................................................................................... 2 1 Statement of Problem ............................................................................................ 4 2 Research Objectives ............................................................................................... 5 3 Hypothesis ............................................................................................................. 6 4 Research Methodology .......................................................................................... 7 5 Introduction .......................................................................................................... 8 6 7 8 5.1 Torts ............................................................................................................... 8 5.2 General Defences .......................................................................................... 10 The Meaning Of Volenti Non Fit Injuria ................................................................ 12 6.1 Voluntary ...................................................................................................... 12 6.2 Agreement .................................................................................................... 12 6.3 Knowledge .................................................................................................... 14 The origin and development of Volenti non fit injuria........................................... 15 7.1 Knowledge And Consent As An Elements Of Volenti Non Fit Injuria ................ 15 7.2 Implied Consent ............................................................................................ 16 7.3 Knowing And Willingness ............................................................................... 17 7.4 Exceptions To The Maxim .............................................................................. 20 The various applications of Volenti non fit injuria ................................................ 22 8.1 Volenti non fit injuria in Employment Relationships ....................................... 22 8.2 Volenti non fit injuria in Rescue Cases ........................................................... 22 8.3 Volenti Non Fit Injuria In The Cases Of Suicide ............................................... 24 8.4 Volenti Non Fit Injuria In The Case Of Sporting Events ................................... 26 8.5 Volenti Non Fit Injuria In Relation To Drunk Drivers ....................................... 27 8.6 Volenti Non fit Injuria in the Case of Trespassers ........................................... 28 8.7 Volenti Non fit Injuria and Exclusion Clauses in a Contract ............................. 29 Inspecting the scope of VOLENTI NON FIT INJURIAPage | 2 9 Volenti non fit injuria In India .............................................................................. 30 9.1 Recent Trend Of Cases Involving Volenti non fit injuria In India ...................... 35 10 Contributory Negligence and Volenti non fit injuria........................................... 37 11 Conclusion ........................................................................................................ 38 12 Bibliography ..................................................................................................... 39 Inspecting the scope of VOLENTI NON FIT INJURIAPage | 3 Also we will research on the similarities and the differences between the Volenti Non fit Injuria and Contributory Negligence. over the years of it being propounded. Inspecting the scope of VOLENTI NON FIT INJURIAPage | 4 .1 STATEMENT OF PROBLEM By the means of this project we hope to explore the scope of the general defence Volenti Non Fit Injuria and how it has. What was need of differentiating between the two. become a defence with one of the broadest scope of applications in comparison with the rest of the defences. But with the help of research we would like to determine the scope of the defence and also investigate whether the defence. Also we will explore why was the concept of ‘consent as a defence’ and which cases led to its development. over time increase its application. To explore its scope and various applications. its importance as a defence. These are the core areas the paper will cover: To understand and explain the concept of ‘Law of Torts’ and it’s ‘General Defences’. To understand and explain the meaning of ‘Volenti Non Fit Injuria’.2 RESEARCH OBJECTIVES The following are the key objectives that were kept in mind while making the research paper. Inspecting the scope of VOLENTI NON FIT INJURIAPage | 5 . for it to be further explored and developed. To understand and explain the development of ‘Volenti Non Fit Injuria’. To understand and explain the need of the defence. if any. To understand how the concept has such a broad application in cases of negligence by the means of studying some landmark cases of the defence. To determine the possible future of the concept. Conclusively prove the hypothesis. To check the how well developed and interpreted the concept is and to the need. My view on this. Inspecting the scope of VOLENTI NON FIT INJURIAPage | 6 . Negligence is basically performance or non-performance of some act which the person had the duty of care ‘to not do’ or ‘to do’. it changes even in the same situation over time. the above hypothesis will be test and in accordance with the research done. So the expansion of its scope is dependent on negligence. But as pointed out before. Hence. country to country and even situation to situation. This ‘duty of care’ varies from place to place. we can at the outset is that Volenti Non Fit Injuria doesn’t have a fixed scope altogether! So it can expand be broadened or even be narrowed depending on the situation.3 HYPOTHESIS “Can the scope of Volenti Non Fit Injuria be further expanded with time?” “Will the application of Volenti Non Fit Injuria change too over time?” “Is this concept fully developed or can it be subject to further developed?” These are some of the questions that come to our mind when we are inspecting the defence. It is pretty safe to say that the concept is one of the better developed defences of torts making it clear where it can apply and where it would not. is that this defence has a broad scope but it is only limited to the cases of negligence. The concept has been developed over the course of almost two centuries. The applications of this defence will change with time as the duty of care is not a fixed one. prima facie. as the scope of this defence changes in relation with the change in the duty of care of the person in various situations. With the help of the research that follows. valid conclusions will be drawn. Inspecting the scope of VOLENTI NON FIT INJURIAPage | 7 .4 RESEARCH METHODOLOGY The research methodology followed in making of this project is the DOCTRINAL MEATHOD. M Sridhar. http://www.” 2 or “A tort may be defined as a civil wrong independent of contract for which appropriate remedy is an action for unliquidated damages. The Law of Torts.com/articles/torts_s. A Lakshminath. compensation can be of a few types. Now.html 3 http://www. the injured party can ask for remedy in the form of ‘damages’ or compensation. that where a right exists. a tort basically refers to an act which is wrong or twisted. Thus. ‘ubi jus ibi remedium’. damage to persons’ reputations or financial interests. An injunctive relief refers to a court order that requires the defendant to do something or prevents him from doing something. “a civil wrong for which the remedy is a common law action for unliquidated damages. “A tort is a violation of a right of a person or a breach of duty of another towards him. and interference with persons’ use and enjoyment of their land. 2013.1 T ORTS The word ‘tort’ is derived from the Latin term ‘tortum’ which means ‘twisted’. and Ramaswamy Iyer. and which is not exclusively the breach of a contract or the breach of a trust or other merely equitable obligation. loss. The harm includes physical injury to persons or property.” 4 When this legal right of a person is violated.legalserviceindia. The right and duty arise under the general law as between a person or persons in a particular situation. Accessed August 20. or an infringement of rights. 1 2 Inspecting the scope of VOLENTI NON FIT INJURIAPage | 8 .php 4 Jones Lucy. there lies a remedy too.” 3 Tort law is mainly based on the legal maxim. 2007.lawteacher. The former aims at compensating the injured (called ‘plaintiff’ in tort law) and the latter aims at punishing the wrong-doer (called the ‘defendant’ in tort law).compensatory damages and punitive damages.” 1 or A tort is.5 INTRODUCTION 5. Introduction to Business Law.2013. “The primary function of the Law of Torts is to provide remedies to claimants who have suffered harm.net/free-law-essays/contract-law/contract-liability. which means. it is an injury that one person or entity inflicts (accidentally or intentionally) on another person. Generally speaking. Some tort cases seek something called an ‘injunctive relief’. Universal’s Master Guide to Judicial Service Examination. Whereas. To file an action in a court. This is done mainly to ensure the just application of the principles of tort law.. James. Cees. and Ramaswamy Iyer. tort law has not developed much India.is sometimes used to refer to any argument that persuades the court to find that the defendant is not liable. The word defence “.’ The various types of general defences include volenti non fit injuria. Every tort is a cause of action. Torts: Personal Injury Litigation: Personal Injury Litigation. William. Universal Law Publishing. 8 Statsky. In India. 5 6 Inspecting the scope of VOLENTI NON FIT INJURIAPage | 9 .” 5 This brings us to distinguish between liquidated and unliquidated damages. one needed a writ. The law of torts is strongly influenced by its history: the focus is not primarily on rules but on the right cause of action” 6. the law of torts also provides certain ‘defences’ to the defendant by using which the defendant can escape liability. “The law of torts administered in India is the English common law of torts so far as it is available to the Indian society and circumstances. M Sridhar. this duty is towards persons generally and its breach is redress able by an action for unliquidated damages. contributory negligence. European Tort Law. Oxford University Press.“Tortious liability arises from the breach of a duty primarily fixed by law. The liquidated damages refer to the damages the value of which are fixed and had been decided beforehand. In this paper. Dam. 2013. public policy etc.. the Lord Chancellor. The Law of Torts. 2011.” Harvard Law School . 2001. are called the ‘general defences. 7 Mehta.” 9 These defences which apply to most of the torts in general. unliquidated damages refer to those damages the value of which are not fixed and they are not predefined ones. “The origins of tort law can be found in old English procedural law. 2007.” 7 Thus. “A Taxonomy of Tort Law Defences. West/Thomas Learning. the application of common law. 9 Goudkamp. which is simply a legally accepted reason for bringing a suit” 8 But. However. necessity. 2010. act of God. more specifically tort law in India has a selective application. we will specifically deal in detail with the defence of ‘volenti non fit injuria. which could only be obtained from the head of the judiciary.’ A Lakshminath. Gaurac. tort law has developed mainly as a part of the common law system that influenced India after India was colonized by the British. Inevitable Accident: Inevitable accident is such where the injury could not have been avoided in spite of reasonable care on part of the defendant. How-ever. This consent to suffer harm can be either express or even implied. such consent must be given freely and not obtained by fraud or any other illegal means. when the action of the plaintiff is unlawful itself.5. Act 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. Other defences are general in nature and can be classified as: 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 The defence of Consent: This defence is based on the principle of ‘Volenti non fit injuria’.2 GENERAL DEFENCES Some specific defences are available in a suit for tort. These defences are specific and find application in relation to a fixed nature of tort. The Rule of Strict Liability (as in Rylands v. It must be extraordinary and unanticipated as well. Fletcher 10) has incorporated the concept of this defence. 10 Rylands v Fletcher [1868] UKHL 1 Inspecting the scope of VOLENTI NON FIT INJURIAPage | 10 . it might lead to a defence in general. cannot claim damages for such harm. When 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’. A person. who has voluntarily agreed to suffer harm. 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 in spite of his reasonable effort. So. Necessity: If damage is caused to avoid a greater damage. Act 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. use of such force must be reasonable and should be in proportion to the requirement. it becomes a good defence. it’s development and it’s various applications Inspecting the scope of VOLENTI NON FIT INJURIAPage | 11 . (General Defences in Torts.Act in relation to Private Defence: In case of imminent threat to life or property. 2016) In this project we will be further discussing the defence of ‘Volenti non fit injuria’. However. use of force for defence of the same is justified. ‘to one who volunteers. Inspecting the scope of VOLENTI NON FIT INJURIAPage | 12 .2 of the Unfair Contract Terms Act 1977. It is often stated that the Claimant consents to the risk of harm. A direct translation of the Latin phrase volenti non fit injuria is. however. no harm is done'. The requirements of the defence are thus: A voluntary Agreement Made in full knowledge of the nature and extent of the risk. the defence will not succeed. This element is most commonly seen in relation to employment relationships. 6. However. 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. rescuers and suicide. The agreement may be express or implied. If the Claimant is not in a position to exercise free choice. this would be subject to the controls of s. An example of an express agreement would be where there exists a contractual term or notice. The defence of volenti non fit injuria requires a freely entered and voluntary agreement by the Claimant.1 VOLUNTARY The agreement must be voluntary and freely entered for the defence of volenti non fit injuria to succeed. the defence of volenti non fit injuria is much more limited in its application and should not be confused with the defence of consent in relation to trespass.6 THE MEANING OF VOLENTI N ON FIT INJURIA Volenti non fit injuria is a defence of broad application in law of torts. in full knowledge of the circumstances. to absolve the Defendant of all legal consequences of their actions.2 AGREEMENT The second requirement for the defence of volenti non fit injuria is agreement. 6. There is a considerable overlap with contributory negligence and since the introduction of the Law Reform (Contributory Negligence) Act 1945. Where the defence of volenti applies it operates as a complete defence absolving the Defendant of all liability. 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. his acceptance or nonacceptance of the risk is left to implication. the maxim as now used generally imports that the workman had either expressly or by implication agreed to take upon himself the risks attendant upon the particular work which he was engaged to perform. (1905). 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 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.. to a considerable extent upon the nature of the risk. 17. but had not consented to the lack of care. but whether he agreed that. Volenti non fit injuria. When. and from which he has suffered injury. and appreciated or had the means of appreciating its danger. and the workman's connection with it. will in every case necessarily imply his acceptance. G. L. The Claimant may have been aware of the danger of the job. Held 3:2 Decision. He was therefore entitled to recover damages. 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. if injury should befall him. 43. the risk was to be his and not his masters. Whether it will have that effect or not depends. At trial the jury found for the Claimant.” 12 11 12 Smith v Baker & Sons [1891] AC 325 Child. Inspecting the scope of VOLENTI NON FIT INJURIAPage | 13 . He was employed to hold a drill in position whilst two other workers took it in turns to hit the drill with a hammer. I am unable to accede to the suggestion that the mere fact of his continuing at his work. as is commonly the case. But assuming that he did so. N. in my opinion. The appeal was allowed. The Claimant appealed to the House of Lords. Jurid. as well as upon other considerations which must vary according to the circumstances of each case. Lord Watson: "In its application to questions between the employer and the employed. The question which has most frequently to be considered is not whether he voluntarily and rashly exposed himself to injury. the workman cannot reasonably be held to have undertaken it unless he knew of its existence. Rev. with such knowledge and appreciation.Smith v Baker & Sons 11 The Claimant sued his employers for injuries sustained while in the course of working in their employment. came galloping at great speed towards the bench where they were sitting. Cases. The defendant raised the defence of volenti non fit injuria.283 (2007) Inspecting the scope of VOLENTI NON FIT INJURIAPage | 14 . LJ: "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" 14 13 14 [1963] 2 QB 43 Tort Law: Text. He had been taking little interest in the proceedings and was not experienced in regard to horses. He was on a bench with a Miss Smallwood who was a director of the company which employed the Claimant. and was knocked down. Work of Art owned by the Defendant. one of the horses. On the issue of volenti non fit injuria it was held that consent to the risk of injury was insufficient. Diplock. He was situated within the ring of the horse show and not behind the barriers where the spectators were housed. The Claimant took fright at the approach of the galloping horse and attempted unsuccessfully to pull Miss Smallwood off the bench. The Claimant brought an action in negligence arguing the rider had lost control of the horse and was going too fast.6. There must be consent to the breach of duty in full knowledge of the nature and extent of the risk.3 KNOWLEDGE The Claimant must have knowledge of the full nature and extent of the risk that they ran: Wooldridge v Sumner 13 The claimant was a photographer at a horse show. Held: There was no breach of duty so the Claimant's action failed. He stepped or fell back into the course of the horse which passed three or few feet behind the bench. During the competition. and Materials by Jenny Steele p. Law of tort: Including Compensation Under the Consumer Protection ACT. Universal Law Publishing. General. while deciding the case of Bird vs Holbrook 17. says that. 2010. “plaintiff must know the nature of the act or work its extent of danger or risk. The Law of Tort. and Ken Oliphant. S. the judgement given in the case of Ilott v Wikes 16 and thereby. Lexis Nexis Butterworths. setting of dangerous devices (like. there comes a need to clarify what exactly consent means. Holbrook [1828] 4 Bing 628 16 Singh.” 16 This judgement was based on the fact that the plaintiff had knowledge of the placing of spring guns in the land and had voluntarily assented to the injury that he had suffered from.7 THE ORIGIN AND DEVELOPMENT OF VOLENTI NON FIT INJURIA The legal maxim. Sometimes voluntary assent to a crucial element of the tort will appear to be enough. or reasonably cannot understand the nature and extent of risk with the performance of an act. The main argument was that. in 1824. it will be presumed that he had no knowledge of the risk.1 KNOWLEDGE AND CONSENT AS AN ELEMENTS OF V OLENTI NON F IT I NJURIA “The essence of the volenti defence is that the claimant voluntarily assented to the commission of the tort and therefore cannot complain about the damage. mere knowledge does not amount to consent. 7. However. a defendant who set up a spring gun would be held liable even to a trespasser. The trespasser. &Ald. no liability can arise against the defendant for the same. 304 17 Bird v. now the plaintiff suffered injury. However. Later. However.” 15 This point becomes clear when we talk about the case of Ilott vs Wikes 16 in 1820.P. volenti non fit injuria.. accidentally treaded on the latent wire communicating with a gun and thereby letting it off. “ it was held that a landowner who placed spring guns on his land to keep off poachers was not liable to a trespasser. The facts of the case go on somewhat like this: A trespasser who was aware of spring guns being placed in a forest. If he does not know. 2007. Knowledge means the.but such assent only works if it is impossible to separate that element from the damage suffered by the claimant. This made the Parliament come up with an Act that said. Ilott v.. as we know. 18 Inspecting the scope of VOLENTI NON FIT INJURIAPage | 15 . there was a storm of public disapproval after this judgement. Wikes [1820] 3 Barn. if a person voluntarily consents to a risk.”18 15 Edito. spring guns) would constitute a crime. and M Sridhar. Yarmouth vs France [1887] 19 QBD 647 21 Thomas vs Quartermine [1887] 18 QBD 685 22 PER BOWEN. This holds true even if the defendant has taken reasonable care to avoid the harm as much as possible. knowledge and consent. Ramaswamy Iyer. the case lays down the rule of ‘implied consent’. the defence is complete. “Knowledge is not a conclusive decision in itself.Thus.” 19 And even is free consent is given it has to be understood whether the consent is direct and explicit or expressed and implied. in which the judge ruled. Then came up the case of.2 I MPLIED CONSENT The case of Thomas vs Quartermine was referred to while deciding the case of Smith vs Baker 24 . The Law of Torts. A. 19 Lakshminath. A. he also automatically consents to the harm and risks inevitably accompany the act.” The controversy was whether acceptance of the risk can (or must) be inferred from the mere fact that the man goes on working in full knowledge of the risk involved. But when it is a knowledge under circumstances that leave no inference but one.” 22 “Quite apart from the other requirements of the defence. LexisNexis Butterworths. In this case. that the risk has been voluntarily encountered. The consent given must be free. a persons’ knowledge of the risk to which he exposes himself would lead to an inference of his consent or assumption of risk. 2007. L. tort law says that volenti non fit injuria has two components. namely. Ramaswamy Iyer. 2007. knowing about a risk is not the same as being willing to accept it. “Ordinarily. LexisNexis Butterworths Smith vs Baker [1891] AC 325 Inspecting the scope of VOLENTI NON FIT INJURIAPage | 16 .J in Thomas vs Quartermine 20 23 24 Lakshminath. This means that. “No one denied that a man who freely and voluntarily incurs a risk of which he has full knowledge cannot complain of injury if this risk materializes and causes him damage. Thomas vs Quartermaine 21. The Law of Torts. Thus. Let us look at a case that portrays the emerging modern views regarding the entire concept of volenti non fit injuriaYarmouth vs France 20. more precisely.” 23 7. and M Sridhar. when the plaintiff undertakes voluntarily to do something that is intrinsically dangerous. The point contested in this case was. because by being present at the racing event. In the year 1963. the court ruled that the defence of volenti non fit injuria will apply. by being present at the horserace. where. This was the case of Woolridge vs Sumner 26. In this case. This was clearly a case of ‘implied consent’ and it is this concept of ‘implied consent’ that is very commonly confused with mere knowledge of facts. whether expressed or not. killing two and injuring one. It is a loose idea. Haynes v Harwood 28. In both the above cases. Volenti non fit injuria clearly applied in this case. in the 25 Hall vs Brookland [1933] 1 KB 205 Wooldridge vs Sumner [1962] 3 WLR 616 27 Culter vs United Dairies [1933] 2 KB 297 28 Haynes vs Harwood [1935] 2 KB 297 29 Dann vs Hamilton [1939] 1 KB 509 26 Inspecting the scope of VOLENTI NON FIT INJURIAPage | 17 . but he went to the field. In the case of Dan vs Hamilton 29. a photographer attended a horse show. During the competition. even after knowing that the horses were not posing an immediate threat to anyone present there. In this case. this was different from a subsequent case in the year 1935. This again qualifies implied consent if not expressed.3 KNOWING AND WILLINGNESS Now. However. For example. the amount of knowledge the plaintiff had. an accident took place in a racing track. the plaintiff enters into a car being driven by the defendant who is in a drunken state and then the car meets with an accident. 7. the plaintiff. knowledge as we have discussed earlier. He had complete knowledge of the risks involved. the plaintiff went to a field in order to calm down some horses and suffered injury as a result of that. it was not a matter of mere knowledge. we know of the risks and dangers that can be there in our homes. the defendant was expected to concentrate on the race and not on the spectators. wherein two speeding cars hit into the crowd of spectators. the defence of volenti non fit injuria will apply because. he was knocked down and injured by a horse owned by the first defendant and driven by the second defendant. The court held that in this case. was considered enough to qualify as consent. is a subjective concept. the plaintiff had actually consented to the possible harms. satisfies the condition of knowledge accompanied with consent. In the case of Culter vs United Dairies 27. Moreover. In this case the plaintiff can clearly not ask for compensation because the defendant will successfully claim the defence of volenti non fit injuria because the very fact that the plaintiff had knowledge of the drunken state of the defendant. that took place thirty years back. a case was decided in a manner similar to the case of Hall vs Brookland Auto Racing Club.Let us now talk about the case of Hall vs Brookland Auto Racing Club 25. the spectators had indirectly consented to the risks that could arise as a result of being present there. due to negligence on the part of the defendant. 32 So. fulfilling the criteria for consent. Lexis Nexis Butterworths. expressly or impliedly . The Law of Tort. he consented to the harm suffered as a result of the negligence of the defendants. but that does not mean.” 35 However. We know of car drivers being negligent 30. Let us now look at the aspect that for volenti non fit injuria to act as a defence. However. to waive any claim for any injury that may befall him due to the lack of reasonable care by the defendant. The issue was that. or maybe we have even seen drivers who are habitually careful and steady. But. he can claim compensation only if he can show that the other player was excessively aggressive that was beyond the rules of the game. the consent given must be free. However. this concept is not accepted in all cases.office area or in other places. when a football player is hurt during the course of the game. in the case. Nettleship v Weston 34. there have been cases where consent has been vitiated by many factors and is not considered to be free. in which the plaintiff and the defendant had been drinking. This was a case of volenti non fit injuria. then the plaintiff had voluntarily boarded the airplane of the defendant. In this case. Nor is a willingness to take the risk of injury. Sometimes. because he was not forced to board the plane. General. the plaintiff must have the full knowledge of the nature and extent of the risk. the plaintiff was aware of the risks that could be present in a car race. becoming negligent sometimes 31 . if such general knowledge is considered to be a qualifying criteria for the defence of volenti non fit injuria. 31 36 Imperial Chemical Industries Ltd v Shatwell [1965] AC 656 [1972] 3 WLR 296 38 Condon vs Basi [1985] 1 WLR 866 39 Morris vs Murray [1991] 2 QB 6 37 Inspecting the scope of VOLENTI NON FIT INJURIAPage | 18 . The plaintiff must agree. This confusion between mere knowledge and consent is very common. White was killed in a car race. 38 Let us think about the landmark case of Morris v Murray 39. Nothing will suffice short of an agreement to waive any claim for negligence. the plaintiff. 36In the case of White v Blackmore 37 in the year 1972. “Knowledge of the risk of the injury is not enough. Lord Denning has stated. it is important that the “actual knowledge of the risk must be proved. not just negligence. and Ken Oliphant. 2007. then no situation will remain in which a plaintiff can successfully sue the defendant for the tort of negligence.” 33 For instance. This was highlighted in the case of Osborne vs London and North Western Railway Co. Mr. it was completely out of his own free will. There have been factors in 30 Membery v Great Western Rly Co [1889] 14 AC 179 Woodley v Metropolitan District Railway Co [1877] 2 Ex D 384 32 [1888] 21 QBD 220 33 Smith vs Austin Lifts Ltd [1959] 1 WLR 100 34 [1971] 2 QB 691 35 Edito. volenti non fit injuria as a defence did not apply. and Ken Oliphant.. This was brought about in the case of Semble contra Latter vs Braddell 41. where a lady while walking through a tunnel was struck by a train. But. in fact in these cases. General. we must also keep in mind another point regarding consent. The problem with coercion and is that. To give an example. “For the purpose of the rule. not only full knowledge of the circumstances on which the exercise of choice is conditioned. Rowley Regis Corp [1944] KB 476 43 Edito. undue influence and coercion are certain factors that nullify the application of volenti non fit injuria.. Williams [1987] 3 All ER 411 46 Burnett v. Gerson [1981] 1 All ER 257 42 Inspecting the scope of VOLENTI NON FIT INJURIAPage | 19 . “volenti non fit injuria is a dead or dying defence. In this case. Tort Law: Text and Materials 41 Latter v. and Ken Oliphant. This should also include coercion in the form of economic pressure. Mark. if the consenter does not have full information of what he is consenting to. the plaintiff was forced by his master to drive injurious horses and as a result of that. Braddel [1880] 50 LJQB 166 Bowater v. In this respect we can refer to the case of Chatterton vs Gerson. 44 Slater v. we can talk about the landmark case of R v Williams 45.which consent is vitiated by factors like undue influence and coercion The factor of undue influence is even more evident in a master-servant relationship. that is. In this case. the capacity to consent. so that he may be able to choose wisely . the plaintiff’s consent in this case cannot be considered as a prerequisite for volenti non fit injuria because. The Law of Tort. 2008. Ltd [1956] 2 QB 264 45 R. But.” 46 Factors like fraud and misrepresentation also vitiate consent or rather free consent. “employees who have no choice but to comply with their employers’ instructions do not count as having consented willingly. Lexis Nexis Butterworths. there came up the case of Slater v Clay Cross Co. unless he is in a position to choose freely. he falls under the undue influence of the master. in the form of threatening an employee to dismiss him. so that nothing shall interfere with the freedom of his will. that is. because there was negligence on part of the defendants. For instance.a man cannot be said to be truly willing . As Scott LJ had pointed out in this case. Ltd 44.” 43 In the year 1956. British Waterways Board [1973] 2 All ER 631 47 Chatterton v. these factors render the consent given by the plaintiff (under these circumstances) null and void.” 40 The defence of volenti non fit injuria as a whole becomes null when negligence on the part of the defendant is proven. 2007. on the advice of the teacher that such an activity would improve her voice quality. he ended up injuring people. 47 Once we have talked about the fact that consent must be free. a minor girl was raped by her music teacher. it 40 Lunney. Clay Cross Co. v. For instance. but the absence from his mind of any feeling of constraint. in the case of Bowater v Rowley Regis Corp 42. and freedom of choice predicates. To give another example of the effect of undue influence on consent. Likewise.52 The defence is not available to professional rescuers like firemen 53 because it is considered that. it can be said that where a work is dangerous and the plaintiff has been subjected to some kind of risk. However. Moreover. during an emergency. The reason why this defence does not apply in rescue cases. Taylor [1988] AC 431 53 Inspecting the scope of VOLENTI NON FIT INJURIAPage | 20 . In this case. they have not necessarily consented to the torts. he became a psychoneurotic. 49 7. after this incident. The International Railway claimed that the second person had voluntarily participated in the risk. British Railway Board [1967] 2 All ER 945 51 Wagner v. just like the decision that came in the case of Chadwick v British Railway Board. However. TE Hopkins and Sons Ltd. With respect to this. if the risky situation has been created or enhanced by the negligence of the defendant. Kirkhom v Chief Constable of Greater Manchester Police. the Court held that the International Railways were entirely liable to compensate the rescuer or the second person. even though they have got involved in great heights of risks. due the negligence of the railway authority. but even then the defence of volenti non fit injuria will not apply because his voluntary involvement in the case was regarding rescue cases. a person fell out of the train. In this case. mainly because in these cases. Chief Constable of Greater Manchester Police [1990] 2 QB 283 50 Chadwick v. let us take the example of the case of Chadwick v British Railway Board 50. Norfolk Wisbech Area Health Authority [1986] AC 112 Kirkhom v. whether he has been injured or not. 48 Gillick v. In this respect. we can refer to the case of Baker v TE Hopkins & Sons Ltd. this is illustrated in the case. The factor of capacity to consent also holds true for people who are mentally ill. the plaintiff had voluntarily gone to offer help in the rescue operations. International Railways [1921] 133 NY 437 49 52 Baker v. A second person also got injured in an attempt to save the first person.4 EXCEPTIONS TO T HE MAXIM Discussing the relation between negligence and the application of volenti non fit injuria. that minors at the age of sixteen are under the capacity to consent and so operating them for contraception by the doctor’s directions would involve no consent at all. the plaintiff’s husband had gone from his home to the scene of a major railway disaster and played a very important role in the rescue operations. But. as the capacity to consent is actually vested in the parents. the defence of volenti non fit injuria does not work as a defence in rescue cases. then the defendant will not be considered to have consented to the risk. which led to him getting injured. the consent of the claimant is considered to be incomplete as the claimant had been in a dilemma of choice. in the case of Wagner v International Railways 51. [1959] 3 All ER 225 Ogwo v.was argued in the case of Gillick v Norfolk Wisbech Area Health Authority 48. For instance. Inspecting the scope of VOLENTI NON FIT INJURIAPage | 21 . Law of tort is not obsolete yet. volenti non fit injuria. Lord Denning’s opinion has been upheld in a recent case. The Law of Tort.” 55 54 55 Reeves v. and Ken Oliphant. 2007. in which Lord Hobhouse has said that. General. Lexis Nexis Butterworths. Metropolitan Police Commissioner [2000] 1 AC 360 Edito. Reeves v Metropolitan Police Comr 54.it is assumed that people will come forward to offer help and a society would always encourage that. “is probably best confined to cases where it can be said that the plaintiff has expressly or impliedly agreed to exempt the defendant from duty of care which he would otherwise have owed. The workers were under the statutory duty not the employer. They had also previously dismissed a worker for flouting the regulations. 56 Imperial Chemical Industries Ltd v Shatwell [1965] AC 656 House of Lords Inspecting the scope of VOLENTI NON FIT INJURIAPage | 22 . The employer had been instrumental in bringing in the statutory regulations and ensured all workers were aware of them. but nevertheless continued to work could not truly be said to have voluntarily agreed to waive their legal rights: Imperial Chemical Industries Ltd v Shatwell 56 The claimants were brothers who were qualified shotfirers employed by the defendant. They were injured as a result of an explosion at the defendant's quarry caused by the brothers' negligence. Another worker had gone to fetch more wire but the brothers decided to go ahead and test with the shorter wire.1 V OLENTI NON FIT INJURIA IN EMPLOYMENT RELATIONSHIPS As long ago as 1891. The defendant raised the defence of volenti non fit injuria in that the brothers the brothers had full knowledge of the risk and were acting against express instructions.8 THE VARIOUS APPLICATIONS OF V OLENTI NON FIT INJURIA The defence of Volenti non fit injuria has a broad spectrum of applications.. 8. The brothers had deliberately acted in defiance of the employer's express instructions in full knowledge of the risks. This was upheld in the Court of Appeal. Some of the popular applications are as follows: 8. Each brother claimed against the defendant based on their employer's vicarious liability for the negligence and breach of statutory duty of the other brother. Held: The appeal was allowed. They had insufficient wire to test a circuit to allow them to test from a shelter. mostly in the tort of negligence where the plaintiff’s duty of care is violated. At trial the judge held that the defence of volenti could not apply where there was breach of a statutory duty.2 V OLENTI NON FIT INJURIA IN RESCUE CASES A rescuer is not regarded as having freely and voluntarily accepted the risk. the House of Lords recognised that an employee who complained of unsafe practice. Held: The doctors actions were not a novus actus interveniens. The cry of distress is the summons to relief [. Hopkins tested the atmosphere in the well by putting a lighted candle down the well. The defendant contended that the act of the doctor acted as a novus actus interveniens and sought to invoke volenti non fit injuria.” 57 Justice Cardozo: "Danger invites rescue. The Claimant's action was not defeated by volenti non fit injuria. then arrived on the scene.] The emergency begets the man. Dr Baker. 176 (1926) Cardozo." 58 Baker v TE Hopkins & Son Ltd 59 Mr Ward and Mr Wileman were employed by the defendant. Ward went down the well and was overcome by fumes. [2] 232 N.“In the USA. They had been called to clean out a well. International Railway. The well was 50ft deep and 6ft wide. The motor ran for 1 1/2 hours before it stopped of its own accord.Y. but also the harm caused to any person injured in an effort to rescue that victim. It was foreseeable that if a defendant by his negligence places another in peril that someone may come to his rescue and the doctor's actions were not unreasonable in the circumstances. Before leaving the site Mr Hopkins told Mr Ward and Mr Wileman not to go down the well until the fumes have cleared. The candle returned still lighted and thus he concluded the atmosphere was fine. The claimant. He is accountable as if he had. the tortfeasor is liable not only for the harm caused to the victim.Y. He was and as such his actions did not count as freely and voluntarily accepting the risk. Unfortunately. The following morning Hopkins again told the two not to go down the well until he had arrived on the site. 176 (1926) 59 Baker v TE Hopkins & Son Ltd [1959] 1 WLR 966 Court of Appeal 58 Inspecting the scope of VOLENTI NON FIT INJURIAPage | 23 . Morris LJ: 57 Wagner v. Mr Wileman called for assistance and went down the well after him. In breach of these orders Mr.. He and Ward then took a petrol motored pump down the well started it up and left the well leaving the engine running on its own. all three died of carbon monoxide poisoning. Justice in 232 N.. He too went into the well to seek to rescue the two. The wrongdoer may not have foreseen the coming of a deliverer. the rescue doctrine of the law of torts holds that if a tortfeasor creates a circumstance that places the tort victim in danger. Hopkins. originally it was held that they would be treated as volens if they were of sound mind. He had made a two suicide attempts on 6th Jan 1980. His wife brought an action based on the negligence of the police in failing to pass on the information. Dr. The police officer was injured. and arranged to maintain oral communication with them. but if they were of unsound mind the defence of volenti non fit injuria would have no application: Kirkham v CC Greater Manchester Police 61 Mr Kirkham was an alcoholic and suffered from depression. His wife informed them of his suicide attempts and discharging himself from hospital and it was agreed that he should be remanded in custody for his own safety. The horses bolted when a boy threw a stone at them. If a rescuer acts with a wanton disregard of his own safety it might be that in some circumstances it might be held that any injury to him was not the result of the negligence that caused the situation of danger. 8.3 VOLENTI NON FIT INJURIA IN THE CASES OF SUICIDE Where the Claimant commits suicide. He committed suicide whilst on remand at Risley Remand Centre. He in no way acted recklessly or negligently. Haynes v Harwood 60 The Defendant left a horse-drawn van unattended in a crowded street. the police failed inform the prison authorities that Mr Kirkham was a suicide risk. It must be remembered also that the chances of success of his attempt would diminish moment by moment if he tarried. Baker had been "unreasonably" brave. Baker tied a strong rope round his body and arranged for the rope to be held by those on the surface. When he arrived home his wife prevented him from drinking and he became violent and started smashing furniture. However. In my judgment. the learned Judge came to a correct conclusion in regard to the claim made by his executors. 60 61 Haynes v Harwood [1935] 1 KB 146 Kirkham v CC Greater Manchester Police [1990] 2 QB 283 Court of Appeal Inspecting the scope of VOLENTI NON FIT INJURIAPage | 24 . A police officer tried to stop the horses to save a woman and children who were in the path of the bolting horses. He was admitted to hospital but discharged himself the following day.It was said that Dr. The police were called and arrested him. The Police raised the defences of volenti non fit injuria and ex turpi causa. It was held that the Defendant owed a duty of care as he had created a source of danger by leaving his horses unattended in a busy street. Such a contention cannot be here asserted. it is difficult to see why he should not be met by a plea of volenti non fit injuria.R. who had made an unsuccessful suicide attempt. Tameside Area Health Authority. that the point was never argued. If it had been a case of murder. his estate would be unable to maintain an action against the hospital or prison authorities. said that Mr Kirkham was suffering from clinical depression. The defence of volenti non fit injuria. His judgment was impaired. Any observation of Lord Denning is. But Dr Sayed. 62 Pigney v. His suicide was a deliberate and conscious act. S07 Inspecting the scope of VOLENTI NON FIT INJURIAPage | 25 . Lord Justice Lloyd: Where a man of sound mind injures himself in an unsuccessful suicide attempt. Nor should there be any distinction between an action for the benefit of the estate under the Law Reform Act and an action for the benefit of dependants under the Fatal Accidents Act. we were told by Mr Foster. entitled to great weight. But in the present case Mr Kirkham was not of sound mind. He has not only courted the risk of injury by another. In so far as Pilcher J.Held: The claimant was successful. True. In Hyde v. Lord Denning doubted whether a defence of volenti non fit injuria would be available in such a case "seeing that [the plaintiff] did not willingly injure himself . Pointers Transport Services Ltd. since the court held that the hospital staff had not been negligent. So I would be inclined to hold that where a man of sound mind commits suicide. or shock the ordinary citizen. he was sane in the legal sense. he would have had a defence of diminished responsibility due to disease of the mind. but the observation was obiter. Moreover. I find that reasoning hard to follow.he wanted to die". of course. The defence of ex turpi causa was not limited to illegal acts but extended also to immoral acts. There should be no distinction between a successful attempt and an unsuccessful attempt at suicide. brought an action for damages against the Health Authority alleging negligence on the part of the hospital staff. who happened to have appeared for the plaintiff in that case. as the case might be. Volenti non fit injuria would provide them with a complete defence. he has inflicted the injury himself. the plaintiff. although normally would apply where a person of sound mind was to take their own life. drew a distinction between the two types of action in Pigney v. had no application where a person of unsound mind took their life. Pointers Transport Services Ltd. whose evidence the judge accepted. 62. The court applied the public conscience test and concluded that to allow the claimant to succeed would not affront the public conscience. I would respectfully disagree. 1957 2 All E. he cannot. 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. 8. though his judgment was impaired. came galloping at great speed towards the bench where they 63 64 Reeves v Commissioner of Police of the Metropolis [2000] 1 AC 360 House of Lords Wooldridge v Sumner [1963] 2 QB 43 Inspecting the scope of VOLENTI NON FIT INJURIAPage | 26 .I have had some doubt on this aspect of the case. He was found at 2. Work of Art owned by the Defendant. one of the horses. He was unable to be resuscitated and died a week later. He had attempted suicide earlier that day in the cells at the magistrates. But in the end I have been persuaded by Mr Foster that. The defendant argued that as Lynch was of sound mind his voluntary and informed act of suicide broke the chain of causation. During the competition.4 VOLENTI NON FIT INJURIA IN THE CASE OF SPORTING EVENTS 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. He had been taking little interest in the proceedings and was not experienced in regard to horses. however damages were reduced by 50% under the Law Reform (Contributory Negligence) Act 1945. even so. He had also attempted suicide on previous occasions. be said to have waived or abandoned any claim arising out of his suicide. Therefore. Wooldridge v Sumner 64 The claimant was a photographer at a horse show. So I would reject the defence of volenti non fit injuria.05 pm having used his shirt as a ligature secured by the open hatch. Reeves v Commissioner of Police of the Metropolis 63 Martin Lynch committed suicide whilst in a police cell.57 pm and left the hatch open. 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. by his act. he was not truly volens. Mr Kirkham knew what he was doing. He was on a bench with a Miss Smallwood who was a director of the company which employed the Claimant. in the light of Dr Sayed's further evidence that. the defendant was liable. Having regard to his mental state. He was situated within the ring of the horse show and not behind the barriers where the spectators were housed. The custody officer checked him at 1. 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. 65 Dann v Hamilton [1939] 1 KB 509 Inspecting the scope of VOLENTI NON FIT INJURIAPage | 27 . There must be consent to the breach of duty in full knowledge of the nature and extent of the risk. Diplock LJ: "The maxim in English law presupposes a tortious act by the defendant. The Claimant took fright at the approach of the galloping horse and attempted unsuccessfully to pull Miss Smallwood off the bench. and was knocked down. Held: There was no breach of duty so the Claimant's action failed. 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" 8.5 VOLENTI NON FIT INJURIA I N RELATION TO DRUNK DRIVERS In Dann v Hamilton 65 it was held that 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. He stepped or fell back into the course of the horse which passed three or few feet behind the bench. An example of where this was successfully invoked can be seen: Dann v Hamilton 61 The Claimant was injured when she was a willing passenger in the car driven by the Mr Hamilton. On the issue of volenti non fit injuria it was held that consent to the risk of injury was insufficient.were sitting. He had been drinking and the car was involved in a serious crash which killed him. In a claim for damages the Defendant raised the defence of volenti non fit injuria in that in accepting the lift knowing of his drunken condition she had voluntarily accepted the risk. ‘Mere knowledge doesn’t imply consent’.6 VOLENTI NON FIT INJURIA IN THE C ASE OF T RESPASSERS The Occupiers' Liability Act 1984 requires all owners of property to take reasonable steps to make their premises safe for anyone who enters them. the doctrine of 66 67 Morris v Murray [1990] 3 All ER 801 (Court of Appeal) Court of Appeals in [1990] 3 All ER 801 Inspecting the scope of VOLENTI NON FIT INJURIAPage | 28 . The Court of Appeal held that there was consent: “the passenger was not so drunk as to fail to realise the risks of taking a lift from a drunk pilot.Held: The defence was unsuccessful. The claimant was entitled to damages. for in the present case I find as a fact that the driver's degree of intoxication fell short of this degree. It is not necessary to decide whether in such a case the maxim 'volenti non fit injuria' would apply. in a well-known case of Morris v Murray 66. sued his estate. who accepted a lift from a drunk pilot. Asquith J: "There may be cases in which the drunkenness of the driver at the material time is so extreme and so glaring that to accept a lift from him is like engaging in an intrinsically and obviously dangerous occupation. However. 8. and his actions leading up to the flight demonstrated that he voluntarily accepted those risks. Although he drove the pilot to the airfield (which was closed at the time) and helped him start the engine and tune the radio. if they are aware of a risk on the premises. intermeddling with an unexploded bomb or walking on the edge of an unfenced cliff. However. The pilot died in the resulting crash and the passenger who was injured." The defence of volenti is now excluded by statute where a passenger was injured as a result of agreeing to take a lift from a drunk car driver.” 67 This is the distinction between Volenti Non Fit Injuria and the maxim Scienti et Volenti Non Fit Injuria which means. volenti was held to apply to a drunk passenger. he argued that he did not freely and voluntarily consent to the risk involved in flying. even those who enter as trespassers. The House of Lords ruled that the fencing around the railway was adequate. that agreement may amount to an exclusion clause. and the girl had voluntarily accepted the risk by breaking through it.’ As any agreement between the parties will be covered by the rest of the section. the signs were held to be an adequate warning. 8. In the second case. a student who had broken into a closed swimming-pool and injured himself by diving into the shallow end was similarly held responsible for his own injuries. despite the presence of "No Swimming" signs. If it does. The third case involved a man who dived into a shallow lake. Section 2(2) 72 applies a test of reasonableness to other types of damage caused by negligence. Section 2(1) 71 operates to defeat any attempt to exclude or restrict liability for death or personal injuries caused by negligence. This section operates where the clause attempts to exclude or restrict business liability as defined in Section 1(3) of the act. 1977 (UK) 73 Section 2(3) Unfair Contract Terms Act. a girl who had trespassed on the railway was hit by a train. 1977 (UK) 71 Inspecting the scope of VOLENTI NON FIT INJURIAPage | 29 . This act attempts to exclude liability for negligence are governed by section two of the act. 1977 of UK. then it will be subject to the provisions of the Unfair Contract Terms Act. Section 2(3) 73 states: ‘Where a contract term or notice purports to exclude or restrict liability for negligence a person’s agreement to or awareness of it is not of itself to be taken as indicating his voluntary acceptance of any risk.7 VOLENTI NON FIT INJURIA AND EXCLUSION C LAUSES IN A CONTRACT In cases where volenti is based on agreement. 68 69 Titchener v British Railways Board [1983] 1 WLR 1427 Ratcliff v McConnell [1997] EWCA Civ 2679 70 Tomlinson v Congleton Borough Council [2003] UKHL 47 Section 2(1) Unfair Contract Terms Act. 1977 (UK) 72 Section 2(2) Unfair Contract Terms Act.volenti has been applied to cases where a trespasser exposed themselves deliberately to risk: Titchener v British Railways Board 68 Ratcliff v McConnell 69 Tomlinson v Congleton Borough Council 70 In the first case (decided before the Occupier's Liability Act was passed). this subsection will only apply where there is no agreement between the parties and the claimant comes upon an already existing risk. but knowledge from the perspective of a reasonable man became important. This might be thought of as a qualifying case for volenti non fit injuria in the way that. A great number of these rice bags fell against the plaintiff’s wall causing the damage. the plaintiff. the southern wall of the building collapsed and the godown full of rice bags also collapsed. the plaintiff had knowledge of the risk.Ganda Singh v Chuni Lal. such knowledge was vitiated by the fact that the defendant (the landlord) had promised the plaintiff ‘s husband that he would repair the building wherever needed. This case was followed by the case of Bai Monghibai vs Doongersey Lakhmidas 75 in 1917.South Indian Industries Ltd vs Alamelu Ammal 77. because. because. “occupied the demised premises fully aware of their dilapidated and unsafe condition.. In this case. It was held that. though initially there appeared to be a scope for the maxim to be applied. Doongersey Lakhmidas [1917] 19 BOMLR 887 76 MANU/MH/0044/1917 77 South Indian Industries Ltd v. the plaintiff was residing in a godown as a tenant. this horse bit the plaintiff. Without any apparently visible cause. Alamelu Ammal [1923] 45 MLJ 53 75 Inspecting the scope of VOLENTI NON FIT INJURIAPage | 30 . This caused the broken iron pieces to fall at a distance of around 4-5 yards. appreciated it and 74 Ganda Singh v. Chuni Lal [1915] 29 Ind Cas 862 Bai Monghibai v.9 V OLENTI NON FIT INJURIA IN INDIA One of the earliest tort law cases in India took placed in the year 1915. the defendants were carrying on the business of breaking up of cast iron. “the defendant can successfully plead volenti non fit injuria only when he proves that the person injured knew of the danger. 74 The defendant had left his horse. freely and voluntarily accepted the risk.. One of these pieces struck the plaintiff who was standing at a distance of even more than 70 yards. but had failed to do so. so the volenti non fit injuria would not apply. This was a clear case in which fraud had vitiated the application of volenti non fit injuria as a defence.” 76 However. the defence of volenti non fit injuria does not qualify here. where. not mere knowledge. An important case came up in the year 1923. which involved dropping of heavy weight on the iron. In a claim for compensation it was held that the plaintiff would get compensation because he was not aware of the vicious nature of the defendant’s horse. The defendant was held liable in. In this case. even though the plaintiff had knowledge. he could not prove that at such a distance. that was proved to be a vicious animal. The concept of ‘implied consent’ was raised on this point. It was said that. The question was whether volenti non fit injuria will apply as a defence. However. 2010. the defence of volenti non fit injuria did not hold. the plaintiff’s husband worked under the GIP Railway. the appellants were the owners of a house which had its southern wall adjacent to a highway. even though the concept of implied consent was justified. Mukul Dutta Gupta and Others vs Indian Airlines Corporation 82. A. because the plaintiff was acting like a servant following the orders of the employer. in 1962. a new concept of ‘statutory negligence’ 83 came up. the deceased. Even after India gained independence. the law of torts continued to operate in India. Mukul Dutta Gupta v.In such a case. does not get rid of the duty towards him so as to raise a defence on the ground of volenti non fit injuria ” 81 In the case of Smt.” 78 In the year. That the defendant had some knowledge of the danger is not sufficient. Law of tort: Including Compensation Under the Consumer Protection Act. The most important debate in this way. It was held that. notice to the Plaintiff. the southern wall collapsed. Jones. Expert Witnessing and Scientific Testimony: Surviving in the Courtroom. Sanat Dutta Gupta had impliedly consented to all the conditions of the carriage. Clerk and Lindsell. Rukhmini Bai [1937] AIR 354 80 Kallulal v. Michael.voluntarily took the risk. Indian Airlines Corporation [1962] AIR 311 79 83 Cohen. However. Inspecting the scope of VOLENTI NON FIT INJURIAPage | 31 . involving the aircraft of the Indian Airlines Corp. SP. Due to negligence on the part of a third employee. however. Secretary of State v. Hemchand [1958] AIR 48 81 M. In this case. In the case of Kallulal vs Hemchand 80 and Others. In this case. however ample. The collapse of the house was as a result of the rain (vis major). 2008. Kenneth. 82 Smt. “So far as the question of negligence is concerned it is the positive duty of the owner of a building adjoining a highway not permit the existence of a danger therein as the public has an absolute right of access to the highway. crushing plaintiff’s ‘thela’ and almost immediately killing his son and his daughter. Once during heavy rain. wife of Sanat Dutta Gupta who died in an aeroplane crash. this was clearly a case of negligence on the part of the defendant. whether the plaintiff had knowledge of the conditions of the carriage and had consented to it. 1937. the defendant had been negligent in fulfilling the statutory duty of safe carriage 78 Singh. A man cannot be said to have voluntarily undertaken a risk the extent of which he does not appreciate. the plaintiff got killed in an accident. Torts. the plaintiff was Mukul Dutta Gupta . came up the case Secretary of State vs Rukhmini Bai 79. 2012. The defendant tried to defend himself by saying that. the house was actually in a good condition and needed no repairing. by the act of buying the tickets. in this case. and however clearly it may bring home the extent of the danger to his mind. The rule given in this case goes as this. we can refer to the judgement given by a Division Bench of the Gujarat High Court in the case of Sakinabibi v. Belim Gulamhusson Mohammadmiya & Ors 87. Dugganaika [1975] ACJ 222 86 Nasibdar Suba Fakir v. Anand. However.” 84 Talking about the defence of volenti non fit injuria in the Indian context. to the Umreth Consumers Co-operative Society will not be compensated. indicating that a passenger who has undertaken to travel with the owner of cannot make complaint about the injury that he has suffered from because he had voluntarily undertaken or accepted the risk. it is imperative for us to discuss the landmark case of Padmavati vs Dugganaika 85 . Belim Gulamhusson Mohammadmiya and Ors. However. [1977] 3 SCR 377 85 Inspecting the scope of VOLENTI NON FIT INJURIAPage | 32 .. M/s. During this journey (because of the excessive speed). though not overruled by a Supreme Court judgement in the year 1977 in the case of Pushpabai Purushottam Udeshi and others v. Ltd. The car toppled over in an accident. Padmavati v. In this case.an action of statutory duty neither the defence of volenti non fit injuria nor common employment affords a good defence. Salmond on Torts. the plaintiff voluntarily got into the car of the defendant who was drunk. the defence of volenti non fit injuria will not apply. Adhia Company [1984] 1 ACC 105 87 Sakinabibi v. because they not only had complete knowledge of the risks involved. John. the plaintiff was travelling in a hired truck to transport his goods from Bombay to Thane. the Court had restricted itself to the traditional meaning of volenti non fit injuria and held that the plaintiff supplying milk from Amul Dairy. M/s.. the Court held that whoever is the insurer and is supposed to take responsibility 84 Salmond. In this case. thus injuring the plaintiff. However. Let us now talk about the case of Nasibdar Suba Fakir vs Adhia Company 86 and Others. But.of all its passengers and so. the truck meets with an accident. Ltd 88. Pvt. Pvt. damages would not be paid to the plaintiff. but had also voluntarily consented to them and these factors are sufficient to qualify it as a case of volenti non fit injuria. the plaintiff claimed for damages. Ranjit Ginning & Pressing Co. This might be in tune with the old maxim of volenti non fit injuria. In this case. [1947] 15 GJ LR 428 88 Pushpabai Purushottam Udeshi and Others v. for “. The question was as to whether a person who is travelling as a passenger in a hired vehicle for the transportation of his goods can also be said travelling in the vehicle for hire or reward or not and subsequently whether he will be paid compensation or not. In this case. this judgement of the Gujarat High Court was toned down. that took place in 1984. Ranjit Ginning and Pressing Co. this maxim has not been accepted as a universal rule and the Courts have necessarily made numerous exceptions keeping in mind the facts of each case. while deciding the aforementioned case. No such line can be drawn which clearly demarcates the ending boundary of consent. In the case of Lakshmi Rajan v Malar Hospital 91. This shows that the defence of volenti non fit injuria can be used to escape liability in cases of negligence. a lorry (carrying goods) belonging to the plaintiff on its way gave lift to several passengers standing on the road for transport. Laxman Bhimappa Bajantri and Others 89 (deceased Somappa Mallappa was carrying his goods in a hired truck and on the way. After this decision by the Supreme Court. The defence of volenti non fit injuria is clearly available in this case. while treating her for a lump in the breast. In this case. prescribing wrong medicine that has led to an injury 92. Goli Satyavathi and others 90. the Madras High Court in the year 1979. Lakshmi Rajan. blood transfusion involving incompatible 93 .for any injury is liable to compensate any passenger of the vehicle. In this case. Consent. the complainant was a married woman. which is one of the most important elements that is required to fulfil the criteria for the defence of volenti non fit injuria. a doctor of the Malar Hospital. In the year 2001. in the case of Channappa Chanavirappa Katti and another v. thus killing many villagers. the truck met with an accident due to the negligence of the driver) gave a judgement similar to the one given by the Supreme Court in the case of Pushpabai. United India Insurance. irrespective of his riding the vehicle just for the transportation of goods. it cannot be used to escape liability in cases of gross negligence. the lorry met with an accident. These type of negligence cases include. Goguloth Khanna [2001] 2 ACC 392 90 Inspecting the scope of VOLENTI NON FIT INJURIAPage | 33 . the defence of volenti non fit injuria did not apply owing to the fact that the plaintiff was actually working under a contract of employment while carrying the goods and also in some cases. 89 Channappa Chanavirappa Katti and another v. She was suffering from a pain in the breast. G. especially in cases of medical negligence. driver and insurer of the lorry. This case was decided in a manner similar to the one decided by the Karnataka High Court. Malar Hospital [2007] 2 CPJ 17 92 Spring Meadows Hospital v. due to the negligence of the driver. Laxman Bhimappa Bajantri and Others [1979] AIR 93 Meesala Suryanarayana v. etc. leaving a mop in the abdomen of the patient after the operation 94. On the way. Goli Satyavathi and Others [1979] ACC CJ 513 91 Lakshmi Rajan v. Meesala Suryanarayana v. A suit for compensation was passed by the injures against the owner. not providing anaesthesia to a patient during an operation 95. Another very similar case was decided in the same year by the Andhra Pradesh High Court. In this scenario. removed her uterus without any justification. State of Maharashtra [1996] 2 SCC 634 95 PN Rao v. came up a case called United India Insurance v Goguloth Khanna 96. that is. Hajrol Ahluwalia [1998] AIR 1801 93 Kalra Satyanarayana v. In all the above cases. Lakshmi Nursing Home [2003] 1 CPJ 262 94 Achutrao Haribhao Khodwa v. Jayaprakasu [1950] AIR 201 96 United India Assurance v. consent has played an important role. because removal of the uterus was beyond what she had consented for. “the injured/deceased unauthorised entered the lorry. And he was then hit by the sudden flying off of a tyre from a vehicle nearby. 99 . “it has to be ensured by the owner of the vehicle that the tyres and for that matter every part of the vehicle remains in proper repair and does not go off from the vehicle. It was contested that the jail authorities were negligent in trying to help him prevent suicide. Though apparently it might seem that volenti non fit injuria can be taken as a defence. So. So. But. where. in the present case.However. Ali Khan (son of the deceased) files a suit against the defendant. for volenti non fit injuria to apply. This was unlike the case of Padmavati vs Dugganaika. it was necessary to show that the villagers had voluntarily entered the lorry. Puppala Seetaramaiah v Superintendent Sub Jail 100. Vijay Singh (owner of the vehicle). it was contended by the Insurance Company that. volenti non fit injuria as a defence did not apply (also because. injuring the passengers and the driver himself. V Gangamma vs New India Assurance Co. and the maxim/doctrine volenti non fit injuria applied to this case as they voluntarily entered into the lorry at their own risk. by boarding the truck.” 97 This was contrary to the judgement given in the case of New India Assurance Company v Shri Satpal Singh and Others 98. The plaintiff. but volenti non fit injuria applied here. Vijay Singh and Others [2007] ACJ 350 98 Inspecting the scope of VOLENTI NON FIT INJURIAPage | 34 . The defence of volenti non fit injuria is not valid in this case. we will see that. Gopala Krishna Transport and Others [2005] 1 ALD 111 102 Ali Khan v. where. However. the petitioner’s son was staying in jail custody and had committed suicide. there was an accident due to negligence on the part of the driver. but there was not enough evidence to prove consent on part of the villagers. Subsequently in the year 2005. there has been negligence on the part of the driver. the Insurance Company was held liable to pay compensation even though the girl(plaintiff) who died was a gratuitous passenger in the truck that was insured by the Company. New India Assurance Co. In this case. Let us now talk about the case of Adhikarala Jagadeeswara Rao vs Gopala Krishna Transport and Others 101. the deceased was sitting near a cabin at a bus stand on the Barmer-Jaisalmer Road. they had not consented to meet with an accident and suffer from injury) and the Insurance Company had to pay compensation. where. compensation was awarded to the injured. where sufficient evidence was available to qualify voluntary risk-taking on the part of the plaintiff. Superintendent Sub Jail [2003] 2 ALD 584 101 Adhikarala Jagadeeswara Rao v. where. The present case could not even be decided on the lines of the decision in the case. [1993] 1 ALT 353 100 Puppala Seetaramaiah v. In the year 2002.e up the case of Ali Khan v Vijay Singh and Others 102. Vijay Singh and Others [2007] ACJ 350 103 Ali Khan v. on a closer look. came up the case. because it was due to the wrongful act of the prisoner that he was in jail. Shri Satpal Singh and Others [2000] AIR 235 99 V Gangamma v.” 103 97 Ibid New India Assurance Company v. it could not be shown that the injured had entered the lorry forcibly with any threat to the driver. because. compensation was not payable because the plaintiffs were not passengers but trespassers. Volenti non fit injuria will be applicable in this case. because. Commercial Motors. in the case of Nasibdar Suba Fakir vs Adhia Company 109. Somnath Chhabra and Others v The Commissioner and Others 105 where. Manjula Devi wd/o Awadhesh Kumar v. is the case of National Insurance Company v Rajbir Singh and others 108. There was no negligence as such on the part of the defendant. but this defence will not save the defendants from liability. inviting applications for allotment of 70 stamp vendors. the deceased was travelling in a truck. For example. New concepts have been intermingled with the concept of this maxim. However. In this case. negligence was proved because there was evidence that the Esteem car was driven at very high speed in a rash and negligent manner. the injury that the petitioners may suffer (reduced profit) is actually valid under legal processes. volenti non fit injuria clearly did not apply. In the case. The petition was filed by the already working stamp vendors. So. 107 Another case that came up in the year 2012 and was decided on lines similar to the two cases mentioned above. The defence of volenti non fit injuria was clearly not applicable. Manjula Devi Widow of Awadhesh Kumar vs Commercial Motors 104. that is different from the similar cases of volenti non fit injuria going on for a long time in India. because they will be liable under the principle of no fault liability. because the accident and hence the injury was due to the negligence of the defendant. Commercial Motors [2007] AIR 122 Somnath Chhabra and Others v. United India Insurance Company v Abdul Rashid and Others 106. the defence of volenti non fit injuria has become restricted in its scope.Sometimes. it was said that. a petition was filed against an advertisement issued by the Sub Division Officer. Rajbir Singh and Others [2013] ACJ 1403 109 Nasibdar Suba Fakir vs Adhia Company AIR 1984 Bom 1 105 Inspecting the scope of VOLENTI NON FIT INJURIAPage | 35 . on the way he gets hurt by a group of unruly boys and dies subsequently. the petitioners (licensed stamp vendors) were serving people. The Commissioner and Others [2008] 2 PLR 659 106 United India Insurance Company v. it was held that. 9. In the year 2008. The principle of contract 104 Smt.In this case. The petition was dismissed. the concept of a passenger travelling in a vehicle for hire or reward has come up. who felt that taking in more vendors will marginalize their profit. as it involves the larger public interests that they are themselves serving. A similar set of cases came up in the year 2012. strict liability overpowers the application of volenti non fit injuria. comes up a case. Khaushnuma Begum and Others v the New India Insurance Company Ltd. Abdul Rashid and Others [2013] 1 All MR 73 107 Smt.1 RECENT T REND OF C ASES I NVOLVING VOLENTI NON FIT INJURIA I N INDIA With the passage of time. Smt Khaushnuma Begum and Others vs The New India Insurance Company Ltd. A very similar case that can be cited in this respect. the deceased Mohd Umar suffered from fatal injuries due to the bursting of tyre of the vehicle in which he was travelling. This happened in the case of Smt. so volenti non fit injuria was one of the defences asked for. [2001] 2 SCC 9 108 National Insurance Company v. In 2001. the plaintiff has suffered from injury by placing himself in such a position as was required by the contract. a Division Bench of the Gujarat High Court in a similar case had given a contrasting judgement. No case similar to this has come up subsequently. Adhikarala Jagadeeswara Rao vs Gopala Krishna Transport and Others in 2004. in which volenti non fit injuria is often invoked as a defence. But in cases with similar facts. differing only if crucial deciding facts of the cases differ. The case of Puppala Seetaramaiah vs Superintendent Sub Jail 110 discussed the application of the defence with respect to prisoners. and United India Insurance Company vs Abdul Rashid and Others in 2012. 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. we have seen that the courts have followed a uniform trend of judgement. However. the effect of which was toned down after the Supreme Court judgement. Manjula Devi Widow of Awadhesh Kumar vs Commercial Motors in 2007. who have been imprisoned due to their wrongful acts. 2003 Inspecting the scope of VOLENTI NON FIT INJURIAPage | 36 . 110 Puppala Seetaramaiah vs Superintendent Sub Jail 2003 (2) ALD 584.for employment has also come up which has shown indicated that. The judgement of this case was basically influenced by the judgement of the Supreme Court in the Pushpabai case. Negligence on the part of the driver of a vehicle has attracted similar judgements. Smt. Ali Khan vs Vijay Singh and Others in 2005. There were many other such case of medical negligence. Medical negligence is another concept. A landmark case in this field was the case of Lakshmi Rajan vs Malar Hospital in the year 1998. Such cases include the case of Smt Khaushnuma Begum and Others Vs the New India Insurance Company Ltd. 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. if unreasonable. Rev. 1945 Inspecting the scope of VOLENTI NON FIT INJURIAPage | 37 . 111 Distinctions Between Assumption of Risk and Contributory Negligence.wlu. It appears that submitting to a dangerous situation "while getting about the premises in the ordinary manner provided. 1945 112 the defendant’s liability is based on the portion of his fault i. are at fault.edu/wlulr/vol23/iss1/7 112 Sec. of proceeding as plaintiff did under the circumstances. and an acrobat was not negligent in using the unsafe stage of his sponsors. "if the risk of harm involved is of such magnitude as to outweigh what the law regards as the utility of the act or the manner in which it is done. both the plaintiff and the defendant. or utility. and an employee was not negligent in using an obvious unsafe ladder provided by his employer. it is contributory negligence. that is. or has been guilty of contributory negligence in so proceeding. What is "reasonable" is measured by what ordinary and prudent men do under similar circumstances.law. This is not the same in the cases of Volenti Non Fit Injuria. 23 Wash. And where defendant landlord had the duty of keeping a stairway lighted.e. is often a close question. plaintiff tenant was not negligent in proceeding onto the unlighted stairway.1(1) Law Reform (Contributory Negligence) Act. since the passing of the Law Reform (Contributory Negligence) Act.10 CONTRIBUTORY NEGLIGENCE AND VOLENTI NON FIT INJURIA Whether a person who voluntarily proceeds into an obviously unsafe situation has merely assumed the risk. Also. plaintiff cannot be charged with contributory negligence. 91 (1966). if assuming the risk was reasonable under all the circumstances." and performing duties of employment under conditions created by the employer would be merely assumption of risk. rather than assumption of risk.” In other words. & Lee L. Unless the defendant can show that the likelihood of injury outweighed the practical usefulness. The fact that the hazardous condition was encountered in the course of work is significant. would be examples of utility outweighing dangers. Volenti Non Fit Injuria is an absolute defence. in the case of Contributory Negligence. http://scholarlycommons. it is no defense under the safe-place law. 111 It is held in safe-place law cases that conduct constitutes contributory negligence. Hence. As we have seen in the various cases discussed above the application of this defence cannot be limited or fixed for a given situation. as we proposed in the hypothesis the scope of this defence is in direct relation with duty of care and the commitment of a negligent act. Inspecting the scope of VOLENTI NON FIT INJURIAPage | 38 .11 CONCLUSION In conclusion. The hypothesis is successfully tested to draw valid conclusions. Holbrook (1828) having a similar situation still have a different application. The application of the defence over time similarly depend on the what is a negligent act in that period of time. we can also conclude that with the changing times. etc. it is safe to say that the defence of Volenti Non Fit Injuria will continue to evolve. E. society. country. Due to these variables. even though just a defence of tort has a broad spectrum of applications but. this concept can never stop developing. law. situations. be interpreted and be applied in various ways over the course of time. sources and cases that Volenti Non Fit Injuria.g.: Iliot v. we can see from the above research. Wilkes (1820) and Bird v.. and M Sridhar. L. Tort Law: Text. Ramaswamy Iyer. and Materials by Jenny Steele Law of Torts by Bangia. G. & Lee L. The Law of Torts.12 BIBLIOGRAPHY General Defences in Torts. Unfair Contract Terms Act. 91 Child. The Law of Tort. Dr. Jurid. Rev. Universal Law Publishing.com/academike/general-defenses-in-torts/ 17 Jurid. 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