As we have been told from a very young age that taking the responsibility of our own doings is a vital part of life. If we have hurt someone, we should apologize and minimize the hurt that has occurred to them. In a very similar fashion, the law of torts has brought this lesson from childhood to life. The law of Torts states that if someone has suffered loss or damages because of our own misdeeds, we would need to pay damages or provide a remedy to the victim as the Court deems fit but the law also provides us with defenses that can be used in such a situation.
Volenti Non-Fit Injuria is a legal maxim which means if a person puts themselves in the way of harm fully knowing that the following situation can be injurious to them, they would not be able to claim damages for such. This maxim was formulated by a jurist from Rome called Ulpian. This defense is used in many countries such as England, Scotland, United States and Canada to name a few.
The simplest illustration that was given to use as a student was one of the spectators in a football or cricket match. Supposedly, a man buys a front row ticket to a cricket match in a stadium. During the game, a batsman hits the ball and the ball lands on the man injuring him. In such a case, he would not be able to bring a suit to any of the parties involved as it is deemed that he knew of the repercussions of his action of buying a front row seat and had willingly consented to it.
To plead with volenti non-fit injuria, the defendant first has the responsibility to prove that the plaintiff had complete knowledge of the nature of the risk that a specific activity involved and had freely consented to suffer the loss or damages that they may incur in the process.
ELEMENTS OF VOLENTI NON-FIT INJURIA
i. The complete knowledge of the risk.
The victim or the plaintiff must have the complete knowledge of the kind of risk they are getting themselves involved with. If the plaintiff goes on to perform a task or partake in an activity knowing the nature of the risk involved, he would not be able to bring a suit to anyone else for any injury he may suffer. However, the principle of Scienti Non-Fit Injuria also states that the mere knowledge of the knowledge does not mean that this defense can be applied.
In the case of Smith v. Baker (1891) AC 325, the victim who is the plaintiff was employed by the defendant at his site and the plaintiff worked in such a place that a crane carrying rocks used to move over his head. During work, a rock fell from the crane and caused injury to the plaintiff which resulted in the plaintiff bringing a suit against his employers. The House of Lords decreed that the defendants are liable to compensate the plaintiff as there was mere knowledge of risk without the assumption of it.
ii. With the knowledge of the risk, the victim must be willing to suffer it.
In simpler words, the victim should not only have the complete knowledge of the risk he must also consent to incur the damage or sufferings it may cause.
In Imperial Chemical Industries v. Shatwell (1956) A.C 656, the employers had warned their employees against working as it was not safe but the employees did not pay any heed to it. The Court decreed that the workers were informed of the risk however minute it might have been and yet, they decided to work which shows that they were willing to suffer the loss. Therefore, the employers were not liable to compensate for the loss that was suffered.
iii. Free Consent
The consent of the plaintiff to suffer the loss must be freely given by them and not obtained by fraud, coercion or undue influence. If obtaining consent was under any of the afore-stated conditions, volenti non-fit injuria cannot be a defense for the defendant.
In Lakshmi Ranjan v. Malar Hospital Ltd. [III (1998) CPJ 586 (Tamil Nadu SCDRC)], a 40-year-old woman who had a tumor in her breast had to undergo a surgery to remove that and had consented to it. The tumor was in no way affecting her uterus but during the surgery the doctor removed the uterus which earned them a lawsuit by the plaintiff. The Court held that the women had only consented to the removal of the tumor and her uterus. Therefore, the defendant was liable and the defense of volenti non-fit injuria does not apply here.
In another case called A v. Williams (1923) 1 KB 340 which is a landmark case on the issue of consent in rapes, the defendant was the music teacher of the plaintiff (a 16-year-old girl) who obtained the consent of the minor on the ground that performing sexual act with him would improve her voice. The Court later held the defendant guilty as the consent was obtained by fraudulent ways.
But at the same time, if someone consents to anything illegal, it would remain illegal and volenti non-fit injuria would not be applicable.
EXCEPTIONS TO THE DEFENSE
i. When the consent is not free
As already discussed in the article, when anyone’s consent is obtained under undue influence, fraud, coercion or misrepresentation of any fact, the defense of volenti non-fit injuria would not be applicable. From the two afore-stated cases, this point becomes clearer and easier to understand.
ii. Negligent Conduct
When an injury or damage has been suffered as a result of the defendant’s negligent conduct, he is not allowed to plead volenti non-fit injuria and has to take the responsibility of the loss or damage suffered.
In Slater v. Clay Cross Co. Ltd. (1956) 2 QB 264, the train drivers of the defendant’s company had clear instructions to blow the whistle and slow down before entering a tunnel. The plaintiff had been walking inside such a tunnel. The train driver did not follow the orders and not only did he not blow the whistle but also failed to slow down the train for which the plaintiff was injured. During the proceedings, The Court held that the defendant acted in a negligent manner and the negligence on the part of the defendant increased the risk that the plaintiff was involved in. Therefore, the defendant was pronounced liable to compensate.
iii. Rescue Cases
If the plaintiff willingly put themselves in the way of harm to rescue someone from danger, the defendant is not allowed to plead with the defense of volenti non-fit injuria.
In Haynes v. Harwood (1935) 1 KB 146, the plaintiff was a police officer who had taken the risk to try to stop two horses of the defendant who had broken free in rage. The horses were brought near the police station by a servant of the defendant’s and the servant had abandoned the horses for a while to do some work. The plaintiff had sustained injuries because of them and subsequently, sued the defendants. The Court held that the defendants were liable to compensate the plaintiff and volenti non-fit injuria cannot be pleaded in this case.
Therefore, volenti non-fit injuria is an important ground in the law of torts and can bring relief to the defendant if he can proof the plaintiff had complete knowledge of the risk and had consented to face the loss or damage that he may suffer provided that the consent is free and not obtained by any unfair or fraudulent ways. Also, volenti non-fit injuria is not only a valid ground in Indian Law but in English Law, Scottish Law, Canadian Law and under the laws of the United States.
This article is written by Samudrika Majumdar, of Techno India University, West Bengal.