Volenti non fit injuria – Concept, Meaning and Case Laws

By | June 4, 2020
Volenti non fit injuria - Concept

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Volenti non fit injuria – Concept, Meaning and Case Laws | Overview

Introduction

Volenti non fit injuria protects the practitioner from liability for an Act causing injury to a patient, which falls within the express or lulled consent of the plaintiff. The one who voluntarily agrees to suffer harm is not allowed to complain for that and, one’s consent is a good defence against oneself. This is so because the harm voluntarily suffered does not constitute the legal injury. No man can enforce a right, which he has voluntarily waived or abandoned.

I. Origin

The doctrine is not of recent origin but it is well connected with the newly born doctrine of informed consent, which originated only less than 30 years back in America.[1]

II. Essential elements

Consent to suffer the harm may be express or implied. An example of express consent is submitting to a surgical operation.

An example of implied consent is where a player or a spectator in the game of cricket or football is deemed to be agreeing to any hurt, which may be likely in the normal course of the game.[2] However, if there is a  deliberate injury caused by another player or a  spectator suffers injury due to negligent act of players, or if a surgeon negligently performs an operation, the defence of ‘volenti‘ cannot be pleaded.  Thus, the act causing the harm must not go beyond the limit of what has been consented. Consent to operate on the left eye is not necessarily a consent to operate on the right.

This maxim speaks that a person can sue for the Injury for which he has expressly or impliedly assented. This means there is no ‘breach of a legal right against one who is a willing party’. In other words, it can be said that where the patient knows the risks involved in treatment and he knowingly consents to the risk, he can be set with the deface of “volenti non fit injuria” or assigned person of risk. A patient cannot enforce a right which he has voluntarily abandoned.[3] “Volenti non fit injuria” protects the practitioner from liability for an Act causing injury to a patient, which falls within the express or lulled consent of the plaintiff.

III. Application Of Volenti non fit injuria

The maxim has a double application: First, it applies to the intentional acts which would otherwise to tortuous, viz. Consent to physical harm which would otherwise be an assault;  Secondly, it applies to consent to run the risk of accidental harm, which would otherwise be actionable as due to the negligence of the person who caused it, viz. a master is not liable for an injury inflicted on a servant who has undertaken the service knowing the risks incidental thereto.  The maxim is based on the sound principles of justice and good sense.[4]

According to volenti non fit injuria, the patient who has voluntarily consented to run the risk, cannot claim for the injury caused by the act he has agreed to. But the defence can be pleaded successfully only when the plaintiff knew the nature and consequences of treatment which he took into account when he assumed the risk. Thus, the most important factor determining the applicability of maxim requires free and full consent i.e., informed consent of the plaintiff patient, not the knowledge.

Knowledge of the risk is only one of the elements, which is to be taken into account along with other circumstances, to determine whether the plaintiff has agreed to take the risk upon himself.[5]

The “volenti non fit injuria” does not protect the defendant where there is a breach of statutory duty causing injury to plaintiff though right to sue sight have been waived or abandoned by the plaintiff. The mere fact that a patient has agreed to undergo particular treatment or operation implies that he agrees to bear inherent risks but it does not follow that he has assented to the risks of recklessness or negligence on the part of practitioners.[6]

IV. Burden of Proof

The onus lies on the practitioner to prove that plaintiff’s consent was secured fully and freely. It is not sufficient to say that the patient was aware of the risks and dangers involved in the treatment.  To take it as valid consent, the patient must have agreed to run the risks involved in the light of the knowledge as to hazards, side effects and consequences of treatment. It hardly matters what was expressed or implied.

V. Important Case Laws on Volenti non fit injuria

1. Hall v. Brooklands Auto Racing Club[7]

Plaintiff was a spectator, during car race, there was a collision between two cars, one of the cars thrown among the spectators, thereby injuring the plaintiff. Here the defendant was not held liable. The maxim volenti non-fit injuria was applied.

2. Padmavati v. Dugganaika[8]

While the driver was taking petrol at the petrol pump, two strangers took a lift in a jeep. Suddenly, the front-wheel failed and the Jeep becomes uncontrolled, both the strangers were thrown away, one of them instantly died and another was injured. Here plaintiff was not held liable because strangers voluntarily took lift.

3. Wooldridge v. Sumner[9]

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

4. Smith v. Baker & sons[10]

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.

5. R v. Williams[11]

The defendant was a singing coach and he had convinced a 16-year-old student to have sexual intercourse with him by telling her that it will help her in improving her voice and singing. The defendant was held liable by the Court because the consent was obtained by fraud.

6. Haynes v. Harwood[12]

The servant of the defendant brought two horses in the town near a police station and left them to do some other work. The horses were hassled by the children and they broke free, seeing them in rage the plaintiff who was a police officer went to stop the horses and in doing so he got injured and brought a case against the owner for damages. The court held the defendant liable because the defence of volenti non-fit injuria did not apply in a rescue case.

7. Slater v. Clay Cros Co. Ltd.[13]

The plaintiff was hit by a train in the tunnel of the defendant railway company. The railway company had given instructions to all the drivers of its trains that they have to blow the whistle at the entrance of the tunnel and they should also slow the speed of the train but the driver did not follow these instructions and negligently drove it inside the tunnel, as a result of which the plaintiff was injured.

The defendant had taken the defence of volenti non fit injuria but the Court held that this defence could not be applied because even though the plaintiff took the risk of walking inside the tunnel, this risk was enhanced by the negligence of the driver. Thus, when a plaintiff gives his consent to take some risk, there is a presumption that the defendant has not been negligent.


[1] Chakraborty, C., Law of Consumer Protection, New Delhi, Dwivedi Law Agency (2017).

[2] Bangia, R.K, Law of Torts, Eighteen Edition Allahabad, Allahabad Law Agency (2005).

[3] Bag, R.K., Law of Medical Negligence and Compensation, Lucknow, Eastern Law House, (1996)

[4] Charles, J. Lewis, Criminal Negligence, A Practical Guide, 6th Ed., Total Pub. (2006)

[5] Gandhi, B.M., Law of Tort, Lucknow, Eastern Book Company, (2018).

[6] Fleming, Johan.G, The Law of Torts, The Law Book Co5th Ed., Sydney (Australia).

[7] [1933] 1 KB 205

[8] [1975 ACJ 222]

[9] [1963] 2 QB 43

[10] (1891) AC 325

[11] (193) 1 KB 340

[12] (1935), 1 KB 146

[13] 1956 2 QB 264


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