Volenti Non Fit Injuria By Trapti Pareek

Volenti Non Fit Injuria

Volentie means voluntarily or willingly and Injuria mean Injury or Harm. Volenti  Non Fit Injuria means Willingness does not make an injury. 

when a person gives his consent on suffering some harm on himself then he has no remedy for that in law of tort.In simple word if a plaintiff voluntarily agree to suffer some harm then he cannot claim compensation or damages for such harm in the court.

Acc. to Lord Herschall ” One who invited to assented to an act being Done toward himself cannot when he suffer harm complain of it as a wrong.

This Maxim is based on the principle that ” Every Man is the best judge of his own Interest”

Example – ‘A’ Invited ‘B’ for dinner at his house. ‘A’ cannot file a case against ‘B’ for trespass because ‘A’ invited ‘B’ with his own consent.

Essentials Of Volenti Non Fit Injuria

  1. There Must be a FREE CONSENT – It is important that the consent of a person must be without any Misrepresentation , fraud , and without any fear. The consent must be free. The consent to suffer the harm must be express or implied.An example of express consent is submitting to a surgical operation.

    An example of implied consent is where a player  in the game of cricket or football is agree to suffer any harm which may be normally cause in the game. If the injury is caused intentionaaly or voluntarily by the other person then the concept of Volentie Non fit Injuria cannot pleaded. The act causing the harm must not go beyond the limit of what has been consented.

  2. The Act Must Be Legal – The legal Maxim Volenti Non Fit Injuria is applied only when the act is legal. If the act is illegal or contary or against the law then this maxim cannot be applied because it is itself an crime.
  3. Knowledge Of Risk – The Person who suffer the must must have the knowledge of risk.

    In case of Wooldridge v. Sumner

    A photographer was taking a photo in a horse show unfortunately he fell into horse course and and was injured by the galloping of a horse. Here also the defendant was not liable.

    Illustration: A goes for bungee jumping and he knows that he might get injured by it but he still decides to do it and as a result, he suffers injury despite all the necessary care being taken by the organisers. Here A cannot claim damages from the organisers because he had full knowledge of the risks and he had voluntarily agreed to suffer that injury by choosing to do bungee jumping.

    In Smith v. Baker & sons, (1891) AC 325, the plaintiff was an employee of the defendant and the site where he used to work had a crane which carried rocks over their heads. The plaintiff had also complained to the defendant about it. One day the plaintiff was injured because of these rocks falling on him and thus he sued the defendant for damages. It was held that the defendant was liable and had to pay damages to the plaintiff because the plaintiff had consented to the danger of the job but not to the lack of care.

    On which whom BURDEN OF PROOF lies ?

The Burden of proof lies on the practitioner that plaintiff consent was secured freely.

In the cases where the defendant is taking the defense of volenti non fit injuria, the burden of proof is on him to show that the plaintiff had full knowledge of the act and he had consented to the risk involved in the act and the defendant has to show that the plaintiff was also aware of the extent of risk which was involved in the act for successfully taking this defense.

Illustration: A has to undergo an operation for his eye infection and the doctor fails to inform him about the risk of losing his vision due to the operation, as a result, A takes the operation believing that there is no such risk to his eye. In the operation, if A loses his eyesight, the doctor will be held liable because A did not have the knowledge about the extent of the risk which was involved in the operation and therefore, the defense of volenti non-fit injuria cannot be taken.

Smith v. Baker & sons, (1891) AC 325, the plaintiff was an employee of the defendant and the site where he used to work had a crane which carried rocks over their heads. The plaintiff had also complained to the defendant about it. One day the plaintiff was injured because of these rocks falling on him and thus he sued the defendant for damages. It was held that the defendant was liable and had to pay damages to the plaintiff because the plaintiff had consented to the danger of the job but not to the lack of care.

Conclusion

Volenti non fit injuria is one of the defense under the law of torts in which the person who has committed a wrong is exempted from liability because the victim of such a wrong gives his consent to the commission of such an act and such a consent must be free for the successful application of this defense in a case.

This defense is also subject to certain limitations such as rescue cases and the negligence of the defendant in which even if the consent is given by the plaintiff, the defendant is held liable.

Thus while allowing this defense, Courts have to ensure that the conditions of this defense are fulfilled and the act is not one which falls within the limitation imposed on this defense.

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