VOLENTI NON FIT INJURIA – by Shubhangi Singh @lexcliq

An action of tort by the plaintiff may fail in two cases-

  1. if the plaintiff fails to prove the essential ingredients of a tort. 
  2. if the defendant justifies his tort on the basis of principles which nullifies tortious liability.

Volenti non fit injuria

If a person suffers a harm voluntarily then it does not constitute a legal injury and is not actionable. The maxim volenti non fit injuria signifies this meaning. A man cannot make an excuse for an injury which he has received in fulfilment of his desire or willingly accepted to take the risk. If the person has consented either expressly or impliedly then he can’t sue for a tort. Volenti non fit injuria can also be translated as ‘the injury voluntarily suffered is not fit for action’. So, no breach of legal right can be said to be committed against the person who is a willing party or who has given his consent for the harm/injury to be received in consequence of the furtherance of his act. Such injury is not actionable

There are basic points which constitute the maxim volenti non fit injuria which the defendant requires to prove for justifying his tort. They are:

  1. Knowledge of Risk  At first instance, the plaintiff should have the knowledge about the nature of act/work and the risk involved in performing the act. If, he lacks the knowledge about the nature of work and quantum of risk what it will be when the work is performed; it will be presumed that he had no knowledge of the risk. The knowledge of the plaintiff is significant here and if it is missing, the defence of volenti non fit injuria cannot be availed by the defendant.
  2. Free Consent – free consent to run the risk is also necessary for the plaintiff. The consent must be voluntarily and with free will. Consent given by the plaintiff under coercion or force, fraud and mistake can’t be treated as free consent.
  3. Consent of Minors or Insane Persons – Consent given by minors or insane persons are generally not taken as consent since both are considered immature as far as knowledge is concerned and in such cases, consent by their guardians are taken as sufficient. 
  4. Breach of Statutory Duty – a number of duties are being imposed on the employer. When there is a breach of statutory duty by the employer, he is liable even when the employee has given the consent. Hence, consent to a breach of statutory duty is not acknowledged. Now, it has become a well-established rule that the defence of volenti non fit injuria is not applicable to an action where there is a breach of statutory duty otherwise known as statutory negligence. The hypothetical example can be – it is a statutory duty of a Construction Company to provide its labourers with all the basic equipments to guard themselves from injury. But, if the company does not provide these basic equipments, and labourers are fine with it, then tomorrow if any labourer would get injured than the company can’t take defence of Violent non fit injuria as it was their statutory duty to give the safety equipment.

APPLICATION OF THE MAXIM- 

A man cannot complain of harm to which he has already given his consent with full knowledge and free will. It also applies to the intentional act which would be otherwise tortious. Some cases are discussed as below:-

Ilott v. Wilkes, (1820)

In this case, the defendant had kept spring guns in a wood on his ground to protect the game. The plaintiff had full knowledge about placement of spring guns trespassed on the defendant’s land and got injured. The plaintiff brought a suit against the defendant that he had exceeded the right of private defence. It was the observation of the court that although defendant was exceeded his right of private defence he was not liable since the plaintiff had taken the risk of trespassing even after knowing that the spring gun was placed on defendant’s land. The court observed that he having wilfully courted the danger himself his case fell within the maxim volenti non fit injuria.

Bird v. Halbrook,(1828)

In this case, the defendant had placed a spring gun in the garden since flowers from his garden used to be stolen more often. One day, a pea-hen belonging to the plaintiff entered into defendant’s garden. The plaintiff to catch his fowl got alighted the wall of the garden unaware of the spring gun placed there. The plaintiff got injured and the defendant was sued. The court gave the verdict in favour of plaintiff since he had no knowledge about the gun and the maxim volenti non fit injuria was not applicable here.

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