What is acceptance in law of torts?

In the law of torts, the closest concept to acceptance is consent to a risk. Where a sufferer is willing (has given consent or acceptance of risk), there is no (legal) injury. This is what is meant by the maxim, ‘Volenti Non Fit Injuria’. Thus, where there is consent to a certain risk, there is no legal injury, and thus it is not actionable for damages.

This consent can be either express or implied. This can be inferred from the conduct of parties involved. Let us understand these with examples. You give someone express consent to enter your home when you invite them in, and thus cannot sue for trespass. Similarly, there is implicit consent to risk of injury by the ball hitting you when you go to watch a game of cricket and thus cannot sue if the same happens.

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There are certain essentials for consent to be considered as having being given. Firstly, consent must be free. This means that it must be obtained without any coercion, undue influence, fraud, misrepresentation, mistake or any such elements. It is also essential to know that no consent can legalise an unlawful act prohibited by law. Thus, consent is no defense for performance of an illegal act. Lastly, knowledge of a potential risk is not the same as consent to run the risk. Being aware of danger does not always imply consent to bear that danger.

In the case of Hall v. Brooklands Auto-Racing Club, (1933) 1 KB 205, the plaintiff attended a motor car race at Brooklands on a track owned by the defendant company. During the race, two cars collided, and one of them was thrown among the spectators, injuring the plaintiff. The defendant was not liable because the plaintiff impliedly accepted the risk of such harm, the risk being inherent in the sport that any spectator could foresee. This is how the maxim is applied in cases.

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However, rescue cases are an exception to this principle. The doctrine of assumption of risk does not apply where the plaintiff, under an exigent circumstance caused by the defendant’s wrongful acts, consciously and purposefully faced a risk, even of death, to rescue another from imminent danger of personal injury or death, and the defence of leave and license is not applicable to the plaintiff, whether the person endangered was one to whom he owed a duty of protection as a family member, or was a mere stranger to whom he owed no duty of protection.

This was seen in the case of Haynes v Harwood. The respondent negligently left his horses unmonitored in a crowded street, and they ran helter-skelter after a boy threw a stone at them. The plaintiff, a constable on duty, saw the danger to the people’s lives and ran out to stop the horses, but he was seriously injured. It was decided that he was entitled to recover damages because of defendant’s gross negligence, and that the protection of volenti non fit injuria did not apply to rescue cases because the act of a third party intervening and the plaintiff voluntarily taking the risk were not available to the defendant.

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