Have you been in a situation where your mother tells you to do her head massage or dab her legs, and when you do, she slaps you because your actions were a bit painful for her. What’s your first reaction in such a situation? That she was the one who asked to do it in the first place…..Right? This is what the doctrine of “volenti non fit injuria” is all about. It is the defense used when parties consent to the potential risks involved, and bring in claims for damages when they are injured.
Volenti Non Fit Injuria – An Introduction
Breaking the term for better understanding, Volenti means ‘willingly doing’, or ‘to a willing person’, or ‘voluntary assumption of risk’, and Injuria means ‘injury’. Looking at the legal maxim volenti non fit injuria, it means that ‘to a willing person, it is no wrong’. In other words, if someone knows the risk of doing something or staying at a place, and still does the act or remains at the place, he/she cannot complain against the harm suffered. It is a good defense for the person who caused the injury.
Volenti Non-Fit Injuria Examples
The legal maxim of volenti non fit injuria can be understood with the example of a person participating in a cricket match or a boxing tournament. Since there is risk of physical harm and the same is in the knowledge of that person, he/she cannot come later and seek damages for harm caused. Another example is people allergic to dust working at the construction site. Since dust is inevitable, the person suffering harm due to dust allergy cannot complain. The example of a consent form signed before medical procedures also serves the purpose in this regard.
Essentials of Volenti Non-Fit Injuria
In order to apply volenti non fit injuria, there are certain essentials which need to be fulfilled for enjoying the defense:
- Knowledge of Risk – To consent for a risk, or willingly participating in a harmful activity, the very first essential that reflects is the knowledge. If a person had the knowledge of risk involved, then only the defense can be used. If the other person had absolutely no idea of the harm possible or the risk connected with the same, volenti non fit injuria cannot succeed.
- Free Consent – For the defense to apply, the first essential is that the person should have undertaken the risk with free consent. In other words, he/she should not have participated in the activity involving risks, by force/fraud/misrepresentation, but willingly undertaken the same.
- Legal Activity – Volenti non fit injuria can be used as a defense only in case when the activity involving risks was legal. In case of harm caused during an illegal activity, the defense is of no help. A clear explanation is that an illegal act cannot be executed for consenting to the risks.
What are the exceptions for volenti non fit injuria?
While it is a good defense under tort law, it is not absolute. There are some exceptions to the applicability of the legal maxim, as explained below:
- Illegality – As mentioned earlier, if the activity involving the risks is against the law, the defense may not be of any help for the defendants.
- Fraud/Coercion/Misrepresentation – Free consent is the essence of the legal maxim volenti non fit injuria. So if the consent is obtained by misrepresenting the facts, fraudulently or even by coercion, such a consent does not help.
- Public Policy – If the law or public policy of a country specifically bans the applicability of volenti non fit injuria, the same cannot be used as a defense.
- Fault of Defendant – Even if the person consents to the risks involved in a particular situation, if the defendant deliberately causes the harm and the same is proved, the defense could not help much.
- Incapacity to Consent – If the person is not able to give free consent due to being of unsound mind, minor or in a fiduciary relationship, there is no defense against the consenting party.
- Rescue Cases – If a person risks his/her own life to save someone else’s, the consent may be voluntary, but if the risk is caused due to defendant’s fault, the third party taking up the risk cannot be denied relief due to applicability of doctrine of volenti non fit injuria.
- Unjust Bargains – If the consent is made by a party which was not in a position to negotiate, then that cannot be considered as free consent, and thus, the defense is not available.
- Unforeseeable Risks – Since consent is the essence of the doctrine, it is applicable to the risks that could be foreseen and consented to, and not the risks which could not be calculated by a prudent person.
Also read and understand about Strict and Absolute Liability
What is the famous case law for volenti non fit injuria?
Since it is one of the well known defense under law of tort, volenti non fit injuria case laws are a must know for law students. Given below are some of the famous case laws on the doctrine:
Hall v. Brooklands Auto Racing Club
The case involved the complainant who had paid for being among the spectators for a high-speed auto-racing event. During the car race, two cars collided and a few spectators were injured including the complainant. It was held that the incident was extraordinary and that the defendants could only be held liable for foreseeable events. Since they had used enough safety measures, they could not be held liable for the harm caused. It was concluded that the complainant had signed up for the potential dangers involved.
Bowater v. Rowley Regis Corp
In a corporation engaged in collecting road sweepings, the employer asked his foreman to take out a particular horse, which both the employer and employee knew that the said horse had bolted on two previous occasions. When the employee refused, the employer told him it was an order, so the employee proceeded. As was expected, the horse bolted causing injuries to the employee. When he raised a claim for the injuries caused, the employer used the defense of volenti non fit injuria. It was held that the employee had consented under duress, and questioned negligence on part of the employer, thereby ordering damages in favour of the complainant.
Dann v. Hamilton
A woman agreed to travel by car with a driver, who she knew was drunk at that time. The car met with an accident, and the driver lost his life. It was held that the woman’s consent to sit with a drunk driver did not mean signing up for careless behavior or an accident. Thus, she was awarded compensation through the representatives of the driver.
