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Volenti Non Fit Injuria in Torts


Volenti non fit injuria

Volenti non fit injuria is a legal principle stating that when a person consents to the infliction of some harm upon themselves, they have no remedy in tort. If the plaintiff voluntarily agrees to suffer harm, they cannot later complain, and their consent acts as a robust defence against them.

This principle implies that no one can enforce a right they have voluntarily waived or abandoned. Consent may be expressed directly or implied from the context.

Express and Implied Consent

Express Consent

When you invite someone into your house, you cannot sue them for trespass. Similarly, you cannot sue a surgeon for injuries resulting from a surgical operation if you have expressly consented to the procedure. Likewise, no action for defamation can be brought by a person who agrees to the publication of defamatory material about themselves.

Implied Consent

Often, consent can be inferred from the parties' conduct. For instance, a cricket or football player is deemed to have consented to injuries that might occur during the normal course of the game. Similarly, a person on a highway is presumed to consent to the risk of pure accidents.

A spectator at a cricket match or motor race cannot recover if hit by a ball or injured by a car on the track. If someone is injured while trying to stop a restive horse after hearing a call for help, they have no right of action if there was no real danger necessitating assistance.


Limitations of the Defence

For the defence of volenti non fit injuria to apply, the act causing harm must not exceed what has been consented to. For instance, a hockey player has no right of action if hit during a lawfully played game, but deliberate injuries by another player cannot invoke this defence. Similarly, a surgeon who negligently performs an operation cannot use consent as a shield against liability.

Cases Illustrating the Principle

Hall v. Brooklands Auto Racing Club: The plaintiff, a spectator at a motor car race, was injured when a car collided with another and was thrown among the spectators. The court held that the plaintiff had implicitly taken the risk of such injuries, inherent in the sport, and the defendant was not liable.

Padmavati v. Dugganaika: Two strangers took a lift in a jeep, which subsequently toppled due to a mechanical failure, causing injuries and death. It was ruled that neither the driver nor his master was liable, partly because it was an accident and partly because the strangers voluntarily entered the jeep, applying the principle of volenti non fit injuria.

Wooldridge v. Sumner: A photographer at a horse show was injured when a horse galloped furiously, causing him to fall into the course. The court found the defendants not liable as they had exercised due care; spectators assume the risk of such damages, even if there might be an error in judgement or skill lapse.

Thomas v. Quartermaine: An employee at a brewery was injured trying to remove a stuck lid from a boiling vat, falling into scalding liquid. The majority in the Court of Appeal held the defendant not liable as the plaintiff visibly appreciated and voluntarily encountered the danger.

Illot v. Wilkes: A trespasser aware of spring guns on land could not claim damages after being shot by one. Similar principles apply to injuries from broken glass, spikes, or dogs; if a person observes a firework maker for amusement and gets injured due to the maker's unskillfulness, they generally have no cause of action.


Free Consent as a Prerequisite

For the defence of volenti non fit injuria to be applicable, it is essential that the plaintiff's consent to the defendant's act was freely given. If the consent is obtained through fraud, compulsion, or under a mistaken impression, it cannot be used as a valid defence. 

Additionally, the act by the defendant must align precisely with the scope for which consent was granted. For instance, if a person is invited to someone's house, they cannot be sued for trespass upon entry. However, if the visitor enters a private area like a bedroom without permission, they could be liable for trespass despite the initial invitation to visit.

Similarly, a postman has the implied consent to enter a property up to a certain point to deliver mail. Going beyond that designated area into private rooms of the house would make the postman liable for trespass.

When an individual is incapable of giving consent due to reasons like insanity or minority, the consent of a parent or guardian suffices. For example, a surgeon is protected from liability for performing an operation on a child if consent is given by the guardian, even if the child protests.

Consent Obtained by Fraud

Consent obtained through deception is not considered valid. In the Irish case of Hegarty v. Shine, it was noted that mere nondisclosure of a condition like a venereal disease by the plaintiff did not constitute fraud that could vitiate consent.

The plaintiff's action for assault failed partly because non-disclosure by the plaintiff was not deemed fraud enough to invalidate consent, and partly due to the principle that no action arises from an immoral cause (ex turpi causa non oritur actio).

In criminal contexts, mere submission to intercourse does not imply consent if the submission results from fraud that induces a misunderstanding about the act's nature. For instance, in R. v. Williams, a music teacher was convicted of rape for having sexual intercourse with a 16-year-old student under the pretense that the act was a medical operation to improve her voice.

Conversely, in R. v. Clarence, a husband was not liable for infecting his wife with a venereal disease during intercourse, as the wife was aware of the act's nature even if she did not know the consequences. This distinction underlines that under criminal law, and potentially in tort cases like battery, fraud vitiates consent if it leads to a misunderstanding about the act's true nature.

Consent Obtained Under Compulsion

Consent given under duress, where the individual lacks a free choice, is not considered genuine consent. This situation often arises in employer-employee relationships, where an employee may face the dilemma of accepting risky work or losing their job. Consent in such circumstances does not imply acceptance of the risks of the job.

The principle is that "a man cannot be said to be truly willing unless he is in a position to choose freely," necessitating full knowledge and the absence of any constraining factors.

If a worker adopts a risky method of work voluntarily and not due to employer compulsion, they may face the defence of volenti non fit injuria. However, when an employee is forced to accept risky work despite protests, this defence does not apply.


Challenges to the Application of Volenti Non Fit Injuria 

For the defence of "volenti non fit injuria" to be applicable, it is essential to demonstrate two key points: First, the plaintiff must be aware of the risk involved; second, having this knowledge, the plaintiff must have consented to endure the potential harm. 

If only the first condition is met, meaning there is merely knowledge of the risk without explicit consent to suffer harm, this does not constitute a defence because the maxim volenti non fit injuria requires more than mere awareness. Simply because the plaintiff knows of the potential harm does not imply that they have agreed to accept it.

In the case of Bowater v. Rowley Regis Corporation, the scenario involved a cart driver who was instructed by his employer’s foreman to manage a horse known to both parties as prone to bolting. The plaintiff initially protested against driving such a risky animal but eventually complied under orders. When the horse bolted, the plaintiff was injured. 

The court ruled that volenti non fit injuria did not apply, and the plaintiff was entitled to recover damages. Goddard L.J. emphasised the cautious application of this maxim in master-servant relationships, especially when the act arises from ordinary duties.

He clarified that obedience to an order under protest does not equate to accepting the risk. For the defence to hold, it must be proven that the plaintiff agreed to bear the risk.

Another illustrative case is Smith v. Baker, where a workman employed to operate a drill cutting through rock was injured by a stone falling from a crane overhead. Although the plaintiff was generally aware of the risks, he was not warned about the specific danger each time the crane moved stones over his head. 

The House of Lords found that since there was only knowledge of the risk without the plaintiff assuming it, the maxim volenti non fit injuria did not apply, and the defendants were liable.

Lord Herschell pointed out that in situations where a risk is created or heightened by the employer's negligence, mere continuation in the job with awareness of the risk does not prevent the employee from seeking redress for injuries caused by such negligence. He argued that the maxim does not apply in cases where the employer's breach of duty is involved.

Lord Watson further elaborated that the critical question often is not whether the employee voluntarily exposed themselves to injury but whether they agreed that, if injured, the risk was theirs and not their employer's.

Acceptance of risk is not always implied by mere continuation of work with knowledge and understanding of the danger. In every case, the mere fact of continuing work does not necessarily imply acceptance of risk.

Volenti non fit injuria and Rescue Cases

The scope of the doctrine of volenti non fit injuria has undergone limitations, primarily in rescue cases and through legislation such as the Unfair Contract Terms Act of 1977 in England. Despite a plaintiff consenting to endure harm, exceptional circumstances may still entitle them to pursue legal action against the defendant.

In rescue cases, the doctrine of volenti non fit injuria does not apply. When a plaintiff voluntarily confronts a risk to save someone from immediate danger caused by the defendant's wrongful act, the defense of volenti non fit injuria cannot be invoked.

A notable case illustrating this exception is Haynes v. Harwood, where a police constable sustained serious injuries while stopping runaway horses, triggered by a boy's stone-throwing, thereby rescuing potential victims.

The court rejected the defence, emphasising that when faced with an emergency resulting from the defendant's misconduct, consciously risking harm to save another warrants legal protection, irrespective of the rescuer's relationship with the endangered party.

However, it's important to note that not all attempts at rescue receive legal remedy. Wagner v. International Railway highlights this distinction, where a railway passenger's companion, attempting to rescue him in darkness after he was thrown from a railway car, fell and sustained injuries.

The court ruled in favour of the rescuer, emphasising that danger prompts rescue, and the law recognizes such actions as normal responses to emergencies caused by wrongdoing.

Baker v. T.E. Hopkins & Son further underscores the principle, where Dr. Baker succumbed to poisonous fumes while attempting to rescue workmen overcome by them. Despite being warned of the risk, Dr. Baker's act was deemed a foreseeable consequence of the defendant's negligence, thus precluding the defence of volenti non fit injuria.

These cases collectively establish that while individuals may assume risks for themselves, the law recognizes and protects those who voluntarily expose themselves to danger in efforts to rescue others from imminent harm caused by a defendant's wrongful conduct.


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