Answer:- The principle of law volenti non fit injuria means what is consented to is not an injury. Harm suffered voluntarily by the consent of the plaintiff is not actionable. The consent may be of two kinds-
(a) Express consent: According to Salmond no man can enforce a right which he has voluntarily waived or abandoned. Every man is judge of his own interests. If he voluntarily takes the risk or consents to the harm then he cannot take any action for it. The defence of volenti non fit injuria he cannot take any action for it. The defence of volenti non fit injuria is taken in those case where an act is done with the consent of the plaintiff and it causes injury to him. For example it I consent to undergo an operation by the surgeon and is injured then I cannot sue the surgeon because I had given express consent for it. Similarly, if a man enters my house on my invitation then I cannot take an action for trespass againts him because he enters my house with my consent.
(b) Implied consent: Sometimes the consent may be implied and can be inferred from the conduct of parties. In scuh cases the plaintiff does not give consent for the injury caused by the act. But he gives consent to a thing to which the injury complained of is incidental. For example, in a game of football, hockey or cricket a player impliedly consents to an injury, which are very common in such games. Similarly, if two men agree to play the game of sword then it is presumed that they impliedly agree to the danger involved in such games and if one is injured then he cannot take action against the other. Similarly, in a game of boxing one boxer is injured then he cannot sue the other. This rule also applies to the spectators of such games. Thus, if in a cricket match the ball goes outside the field and hits a spectator then he cannot sue the player. In such cases there is implied cannot of the spectator to bear such risks. But if excessive force is applied in the game or unlawful methods are at used and some is injured then the wrongdoer cannot take the plea of votenti non fit injuria.
Also Read Remedies available to the persons wronged in a Tort of Nuisance
Also Read Defences which a defendant in an Action for Nuisance may take up
In Padmavati v. Dugganaika, when the driver of a jeep was going to a petrol pump for taking petrol two strangers took lift in the jeep. Suddenly one of the bolts on the axle of the right front wheel gave way resulting in toppling the jeep. Consequently, the two strangers were thrown out of the jeep and suffered serious injuries and one of them died. It was held that neither the driver of the jeep nor the master of the jeep were liable because firstly, it was a case of accident and secondly, the strangers had voluntarily got into the jeep and therefore the rule of volenti non fit injuria was applicable to the case. Similarly, spectators who attend a game or competition take the risk of such damage which are the result of defendant’s error of judgment or lapse of skill. Law expects ordinary care snd caution on the part of the defendant, not to
show exceptional skill. The duty which the defendants owes is duty of care, not a duty of skill.
In Thomas v. Quartermaie the plaintiff was employed in the defendant’s brewery. He was trying to remove a lid from a boiling vat. The lid was struck and plaintiff applied extra strength to pull it. It come off suddenly and the plaintiff fell into the boiling vat and was seriously injured. It was held that the defendant was not liable as the danger was visible and the plaintiff had taken the risk voluntarily.
Conditions for the application of maxim volenti non fit injuria
Also Read Is malice relevant in Nuisance?
Also Read Nuisance is a continuing wrong, temporary or isolated acts do not constitute tort of nuisance
The following are the conditions for the application of the maxim volenti non fit injuria-
(1) Consent must be free
The defence of volenti non fit injuria will be available to the defendant only when he proves that the plaintiff’s consent to the act done by him was obtained voluntarily. If the consent has been obtained by fraud or under compulsion or under some mistaken impression then such a consent will not be free consent and will not be good defence for the defendant.
The consent must be given with the knowledge of the risk involved in the act. It will not be a free consent if the plaintiff has not been told or made aware of the risk involved in the act.
Consent given under compulsion is no consent. – If a person bound by the law to an act then the consent given by him to do that act is not a real consent.
The consent given by a person cannot be considered a free consent until he has the freedom of choice between the ‘act with risk’ and ‘act without risk’. In such case a man of ordinary prudence will give consent to do an act without risk. But if a man undertakes an act with risk voluntarily and is injured then he cannot take the plea of volenti non fit injuria.
There is distinction between ‘submission’ and ‘consent’. Every consent implies submission but every submission does not imply consent. Mere submission to an act does not imply consent if the submission has been obtained by fraud or given under mistaken impression, i.e. without
the knowledge of the real nature of the act.
(2) Act must be lawful
The act to which the plaintiff gives his consent and undertakes to suffer the risk must be lawful and the method of doing it must also be lawful, otherwise even consent will not be a good defence for the defendant. Consent cannot make an unlawful act lawful. No person can give consent to other to commit a crime. For example, according to rule the boxing game must be played with gloves. If a person plays this game with naked hand then it will be an unlawful act and cannot be taken as a good defence in the Law of torts.
(3) Maxim is volenti, not scienti non fit injuria
The maxim is not scienti non fit injuria (knowledge implies consent) but volenti non fit injuria. Mere knowledge does not imply consent to take risk. It may, however, make it strong or weak according to the circumstances the case. It is not necessary to prove that the person injured knew of the risk and voluntarily undertook it. Thus if he willingly undertakes to do an act inherently dangerous, he cannot, if he is injured, complain that a wrong has been done to him.
In Smith v. Baker the plaintiff was employed as a workman by the defendants for the purpose of cutting a rock. By the crane stones were being taken from one side to the other and every time the crane passed over him. The plaintiff and his master both knew that there was danger of stone pieces falling on him at any moment. Inspite of this, he had consented to do the work. One day due to the negligence of other workman a stone fell from the crane and injured him. The employers were negligent in not warning him about the impending danger although the master had instructed the crane driver to give such warning every time the crane passed through over his head. The plaintiff sued the defendant (master) for damages. The defendant pleaded that although there had been negligence on their part but the plaintiff had consented to do the work with the knowledge of the danger involved in the work and, therefore, he was not entitled to damages. But the House of Lords held that the defendants were liable to pay damages to the plaintiff. Mere knowledge of risk does not mean that the plaintiff has consented of his free will to suffer the harm. The harm done to the plaintiff was due to the negligence of employees of the defendant in not warning him of the danger, which they were bound to do. The master has not only legal duty to make the employee aware of the risk in the work but has to take every care to protect him from it. The Court said that although the plaintiff was aware of the risk but it was not inevitable, and was caused due to the negligence of the defendant’s employees to which he had never given his consent. The defendants contention that inspite of the knowledge of the risk the plaintiff continued to do which he had never given his consent. The defendants contention that inspite of the knowledge of the risk the plaintiff continued to do his work did mean that the had given his consent to it cannot be accepted because had he got choice to choose between the ‘dangerous work’ and ‘non-dangerous work’ he would certainly chosen to do the ‘non-dangerous work’.
Cases where the plaintiff gives his consent with the knowledge of the risk, it is necessary to see whether before giving consent the plaintiff knew the nature of the work and the risk involved in it. If it is so then it can be concluded that he had espressly consented to do the work. This depends on the facts and circumstances of each case for example, if a man agrees to take the work of manufacturing explosives then it is clear that he also consents to under take the risk involved in that work.
In Bowater v. Rowley Regis Corporation the plaintiff was employed as a cart driver by the defendants. He was asked by the defendants foreman to drive a horse which to the knowledge of both was liable to bolt. The plaintiff protested but ultimately in obedience to the order accepted to take out the horse. When he was taking the horse out of the stable the horse bolted and the plaintiff was injured. The court held that the maxim volenti non fit injuria did not apply in this case and the plaintiff was entitled to receive damages. In such cases the mere knowledge of the risk did not imply that he had given consent to take the risk. The Court held that this maxim should be applied in cases of master and servant relationship with extreme caution.
Breach of statutory obligation: In Imperial Chemical Industries v. Shatwell the plaintiff and his brother were working in the defendants’ quarry. They tried to test an explosive detonator in violation of his master’s order and without any requisite precaution. As a result of which an explosion took place and the plaintiff was injured. He brought an action for damages against the defendant and contended that the accident had occurred due to his brothers’ negligence and since the negligence was committed by him in the course of his employment hence defendants were vicariously liable. But it was held that the defendants were not liable. The plaintiff had consented to undertake the risk knowingly and, therefore, the maxim volenti non fit injuria would apply. They had not compelled the plaintiffs to use such dangerous methods of doing the act.
Exceptions to the maxim
In the following cases the maxim volenti fact non fit injuria does not apply:
(1) Rescue cases
Rescue cases are exceptions to the maxim of volenti non fit injuria. If the plaintiff voluntarily takes a risk to rescue somebody from the danger created by the wrongful act of the defendant, the maxim volenti non fit injuria will not apply and he will have right to bring an action for damages against the defendant.
In Haynes v. Harwood is a leading case on the point. In this case the defendant’s servant had left a horse van unattended in a crowded street. A boy threw a stone on the horses and they bolted an started running without the driver causing danger to women and children on the road. The plaintiff a police constable, who was on duty inside a nearby police station saw that persons were in grave danger, ran out and stopped the horses and in doing so he was seriously injured. He brought an action against the defendant for damages. The defendant contended that since the plaintiff had voluntarily taken the risk the maxim volenti non fit injuiria will apply and he will not be entitled to damages. But the Court held that in ‘rescue cases’ the maxim was not applicable and the defendants were liable.
This decision establishes the rule that if a person, inspired from feelings of moral or social obligation attempts to protect another person from imminent danger of personal injury or even of death, whether he is a member of his family or a mere stranger to whom he owes no duty, and is injured, the maxim volenti non fit injuria will not apply and he will be entitled to recover damages. from the wrongdoer. But this principle will not apply in a case where there is no question of protection of a person from any danger, but a person takes the risk only for his name and fame.
In Cutler v. United Dairies, is a good illustration on the point. In this case the plaintiff seeing that the defendant’s horse had gone amuck and fleeing attempted to stop the horse and was seriously injured. It was held that the principle that mere knowledge of risk does not imply ‘consent’ rule does not apply to cases where the plaintiff himself undertakes the dangerous work. There was no need to take the risk.
This rule also applies to cases where an attempt is made to protect the life of the negligent person.
In Baker v. T.E. Hopkins & Sons is a good illustration on the point. In this case due to the employer’s negligence, a well in which two workmen were working, was filled with a poisonous gas causing danger to the lives of the workmen. A doctor wanted to help these workmen and tried to go into the well. He was told not so do so in view of the risk involved in it. Inspite of this, he tried to go into the well and was overcome by poisonous fumes and died on way to the hospital. The doctor’s widow brought an action against the workmen’s, employers for compensation for her husband’s death. It was held that in such a case the defence of volenti non fit injuria was not available and the defendants were liable to pay damages to the widow of the rescuer. The Court said that the act of the rescuer was the natural and probable consequence of the defendant’s wrongful act which he could have foreseen.
Rule applies in case of rescue of property: The principle laid down in the case of Haynes v. Harwood also applies to cases of rescue of property, whether the property belongs to the rescuer himself or others.
(2) Unfair Contract Terms Act, 1977 (England) : The rule of Volenti not fit injuria has now been abolished in case of personal injury or harm resulting from negligence. It means that the defendant cannot take the plea that the plaintiff had consented to suffer the risk to his person by a contract. However, in business cases exemption can be granted by contract. Section 2(1) of the Act provides that a person cannot by reference to any contract term or to a notice given to persons generally or to particular person exclude or restrict, his liability for death or personal injury resulting from negligence. In the case of other loss or damage a person cannot exclude or restrict his liability for negligence except in so far as the term or notice satisfies the requirement of reasonableness. [Clause 2(2)].