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DEFENCE OF CONSENT IN TORT LAW VIS-À-VIS VOLENTI NON-FIT INJURIA


Author: Tanisha Gautam, Institute of Law

Nirma University




INTRODUCTION

“Tort is a civil wrong for which the remedy is a common law action for unliquidated damages and which is not exclusively the breach of a contract or the breach of a trust or other merely equitable obligation." —Salmond[1]. In precise terms, if any individual commits a wrongful act that causes injury to the other person, he/she is held liable and is obligated to pay the desired damages to the aggrieved person. In Law of Torts, the defendant is however provided with certain defences. One such cover that lies with the defendant is the defence of volenti non-fit injuria. The term VOLENTI NON-FIT INJURIA is a Latin maxim under the Law of Torts meaning, where there is consent, an injury isn’t inflicted and no damages can be generated. In some cases, such as consent or volenti non-fit injuria, if an individual commits a wrongful act, then he/she can’t be held liable under the Law of Torts and will not be at the risk of paying damages if the aggrieved person has consented to the act or has shown his/her will to the act explicitly or implicitly.


WHAT IS VOLENTI NON-FIT INJURIA?

In the Law of Torts, each and every individual has a duty to commit acts in respect of due reasonable care so as to forestall inflicting injury due to the failure of taking reasonable and adequate care. For e.g., a driver owes an obligation to drive safely and not injure anyone, an individual holds a reasonable care to his/her neighbors to prevent creating nuisance etc. However, in straightforward terms, volenti non-fit injuria states that when an individual consents or expresses his will to the inflict some harm or injury upon himself, then, he has no means of remedy and cannot plead for damages in the Law of Torts. For e.g., a mere spectator of a baseball match cannot plead for damages if the ball hits him because he is assumed to have consented to any hurt which is likely during the course of the game. An individual who has consented to an operation cannot ask for damages if something goes wrong at the time of the surgery. An individual who has invited someone to his home cannot sue the latter for trespass. The consent of the plaintiff acts as a cloak of shield for the defendant, saving him from getting sued under the Law of Torts. For the defence of volenti non-fit injuria to be available, the act should suffice to the limits. In the case of Padmavati v. Dugganaika[2], while the driver was taking the jeep for filling petrol in the tank, two strangers took lift in the jeep. Suddenly one of the bolts fixing the right front wheel to the axle gave way, hence toppling the jeep. The two strangers were thrown out and sustained injuries. One of them died as a consequence of the same. It was held that neither the driver nor his master could be made liable, firstly, because it was a case of sheer accident and, secondly, the strangers had voluntarily got into the jeep per se and as a result, the principle of volenti non fit injuria was applicable to this case.


ELEMENTS OF VOLENTI NON-FIT INJURIA

When the defence of volenti non-fit injuria is taken into consideration then certain elements are essential to be kept in mind such as:


1. CONSENT MUST BE FREE –

It is necessary to take into consideration that while pleading the defence of volenti non-fit injuria, the consent acquired on part of the plaintiff must be free. It means that the consent of the plaintiff has got to be free from coercion, fraud or any other means. Volenti non-fit injuria is applicable particularly to the extent of permission granted. For e.g., if a patient has consented to the surgery of getting cysts removed from her uterus and henceforth some complications arise, then the doctor or the hospital can plead the defence of volenti non-fit injuria. However, if the doctor in conjunction with removing the cysts, removes the uterus, he cannot plead the defence and can be held liable. Similarly, if a guest is asked to sit down within the drawing room space but instead roams freely around the house, he can be held liable for trespass. The component of free consent additionally takes into consideration a person’s capacity of giving consent. If someone is incapable of giving consent owing to the conditions of minority or insanity then the consent of such person’s parent or guardian is considered valid.


2. CONSENT OBTAINED BY FRAUD –

Consent that is obtained by fraud, cheating and is not real cannot be covered with the cloak of volenti non-fit injuria. However, mere concealment of facts may not serve as fraud and the defendant can plead for the defence of volenti non-fit injuria. Two major cases under consent obtained by fraud are that of R. v. Williams[3] and R. v. Clarence[4]. In the initial one, the music instructor was charged guilty of rape owing to the fact that the victim being a 16-year-old girl, misunderstood the nature of the act inflicted upon her. She consented to it believing that it was essential for the improvement of her voice. On the other hand, in the latter case, the wife had voluntarily consented to the sexual intercourse fully aware of the nature of the act though unaware of the consequences and outcomes of the act. Hence, the husband took the defence.


3. CONSENT OBTAINED UNDER COMPULSION/COERCION –

If a case arises where consent is obtained on the grounds of compulsion, force or coercion then the defendant cannot seek the defence of volenti non-fit injuria. An individual cannot be willing to act unless he settles on it freely. For e.g., if the servant is forced to try and do a risky task by his master and during the course if the former afflicts any injury upon himself then the master will be held liable and cannot plead the defence. On the other hand, if the servant has consented to do the risky task then the master is not vulnerable and guilty and can plead the defence.


4. MERE KNOWLEDGE DOES NOT IMPLY CONSENT IF

- Plaintiff knew the risk was present

- Plaintiff with full knowledge of the risk voluntarily gave his consent

Mere fulfillment of the first condition does not save the defendant from the liability. According to the case of Bowater v. Rowley Regis Corporation[5] The plaintiff, a cart driver, was ordered by the defendant’s foreman to ride a horse which both of them knew was about to bolt. Despite the plaintiff’s protest and dissent, he had to take out the horse in obedience of order. The horse bolted, thereby injuring the plaintiff. It was held that the defence of volenti non-fit injuria was not applicable as it was a master-servant relationship, and the plaintiff didn’t consent freely. Therefore, the defendant was held liable.


5. NEGLIGENCE ON PART OF THE DEFENDANT –

When it’s the negligence on part of the defendant, he cannot be saved. For the defence to be available, it must be taken into importance that the act done must be within the limits to which consent has been given. For e.g., in the case of Slater v. Clay Cross[6], the plaintiff was injured by the defendant's servant while she was walking along a narrow tunnel on a railway track which was owned and occupied by the defendants. The company was aware that the tunnel was being used by the public and had instructed its drivers to whistle and slow down whenever they entered the tunnel. The accident had occurred because of the driver's negligence in not observing those instructions. Therefore, it was held that the defendants were liable.


LIMITATIONS OF THE SCOPE OF VOLENTI NON-FIT INJURIA

The horizon of the defence of volenti non-fit injuria is limited to an extent. A defendant cannot take defence of volenti non-fit injuria in the following cases:.


1. RESCUE CASES –

Rescue cases form one of the exceptions in the application of the principle of volenti non-fit injuria. When the plaintiff voluntarily accepts the risk or harm to rescue someone from imminent danger that arose as a result of the wrongful act on part of the defendant, he (plaintiff) cannot take the defence of volenti non-fit injuria. In the case of Haynes v. Harwood,[7] the defendants' servant left a two-horse van unattended on a street. A boy threw a stone at the horses and in a fit, they bolted, causing grave danger to people on the road. A police constable, who was on duty, managed to stop the horses, but in doing so, himself suffered serious personal injuries. Since it was a 'rescue case', the defence of 'volenti non fit injuria' was not accepted and the defendants were held liable.


2. CONTRIBUTORY NEGLIGENCE ON PART OF THE DEFENDANT –

In the case of contributory negligence, the liability gets divided on the basis of the proportionality of the fault in the matter. Here, the damages to be claimed by the plaintiff will be reduced to the extent of his fault. The defendant is free from bearing full liability on his part. Both, the plaintiff and the defendant are to be taken at fault[8].

For e.g., A, driving a car at the speed of 100kms/h on a road where the speed limit is 60kms/h collides with B, driving the car in the wrong direction on the same road, then the liability arises on part of both A and B. This makes the case of contributory negligence.



CONCLUSION

The maxim, “volenti non-fit injuria”, is one of the most essential defences available to the defendant. Most essential factor of this defence is that the plaintiff should have voluntarily agreed to encounter danger or harm, arising out of the defendant’s negligence. The defence of volenti non-fit injuria saves the defendant from the liability arising on his part only when there is consent on part of the plaintiff. The plaintiff must have consented to the danger freely. Plaintiff’s consent must be free from coercion, fraud and misrepresentations. Mere knowledge about the act does not imply to consent and the defendant cannot plead for the defence of volenti non-fit injuria. The defence of volenti non-fit injuria is bound to some exceptions such as, negligence on part of the plaintiff, contributory negligence, rescue cases and Unfair Contract Act Terms, 1977 (England). It is of utmost importance for the advocates and the judiciary to consider all the above-mentioned aspects and to ensure that all conditions are met before reaching a verdict.



[1] Salmond’s definition of torts. [2] (1975) 1 Kam. L.J. 93. 1975, A.C.J. 222 [3] (1923) 1 K.B. 340. [4] (1888) 22 Q.B.D. 23. [5] (1944) K.B. 476. [6] Slater v. Clay Cross Co., (1956) (1956) 2 All E.R. 625: (1956) 2 Q.B. 264. [7] (1935) 1 K.B. 146 Hyanes v. Harwood [8] Sec. 1(1), Law Reform (Contributory Negligence) Act, 1945, provides : "Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage."

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