Volenti Non Fit Injuria as a Justification
Authored by - Vasundra V
Keywords - Legal maxim, Tort Law, Liability, Torts, volenti non fit injuria
The legal doctrine is a set of frameworks, rules, precedents, and procedures through which the judgment of any case can be determined. One such doctrine is volenti non fit injuria which does not allow the person to claim for the damages or injuries suffered by the act of another person. Thus, this article aims at justifying the doctrine of volenti non fit injuria through secondary sources.
The remedy for the victim is not always assured under the law. Basically, if any wrongful act is committed by any person who causes loss or injury to another person, then the person will be liable and has to pay for the damages or should provide a remedy that the court orders to do for the victim of such an act. But in many cases, it has been found that the person suffered a loss by the act of another person but has enjoyed no remedy, which is mentioned under the common law doctrine called “volenti non fit injuria”. This case happens because of the consent entitled by the person suffering the harm for such an act, which caused injury to him. Volenti non fit injuria is a defense available to the defendant in which he is not entitled to the loss or sufferings already agreed by the plaintiff.
Volenti non fit injuria is originated from the Latin term “Nullainiuriaest quae in volentem fiat” which means “to a willing person, injury is not done”. This has been formulated by Roman jurist Ulpian as there was no accurate difference between the contributory negligence and volenti non fit injuria before 1945. At that time, the judges were having difficulty regarding those two topics as it was necessary to demonstrate the breach of duty in means of taking defense. In this regard, the people were in the view that the express or implied consent is essential to perform the defense between two parties.
After many debates, the application of this maxim again stuck with the doubt whether this maxim could apply before or after the act is done in the case of Dann vs. Hamilton. This is because if the consent is obtained from the claimant before the act of negligence is done then the claimant would not be able to have the knowledge of the act and to the extent, he would be liable to suffer the harm. Finally, the right application of this doctrine took place in the case of Khimji vs Tanga Mombasa transport co. ltd in 1962.
1. Free Consent
The agreement to apply this doctrine must be voluntarily and freely entered. The defense will not be fulfilled if the plaintiff is not in the role of exercising their free choice. This is essential in the case of rescuers, suicide, and the employment relationship. For example, in the case of Ravindra Padmanabhan vs Lakshmi Rajan of 2007, the doctor while operating on Lakshmi's tumor on her breasts removed her uterus which had no problem. Thus the Court held the defendant as liable and rejected the doctrine of volenti non fit injuria.
Agreement for the defense of volenti non fit injuria may be expressed or implied. However, the clear definition of an agreement is mentioned under Section 2 of the Indian Contract Act that every promise and every set of promises, forming the consideration for each other, is an agreement. When the plaintiff’s action demonstrates a willingness to accept both physical and legal risks then the implied agreement may exist. In the case of Hall vs. Brookland, the plaintiff among the audience was injured when one car flew away in the car race. As he went with his consent to such risk, this defense had been applied.
The claimant must have knowledge of the full nature and extent of the risk of an act. There are many cases where the knowledge of the danger is known by the plaintiff but the extent of risk is unknown, thus the defense has not been applied. In Smith vs. Baker’s case, the defendant is a worker of rock cutting and he knows that the workplace is dangerous but does not know the extent of the risk. Hence, he filed the case against the defendant for the injury in his head by the fallen rock. Judgment was given by the House of Lords that since there was only knowledge of the risk but not the assumption of it, therefore, the defense failed and the claim was maintained.
4. Consent by fraud
If any illegal act is done in the consent given, then the consent will not be valid and the defense is not considered for either of the parties. In the case of R vs. Williams, the defendant who is a singing coach of the 16-year minor plaintiff made her have sexual intercourse with him by telling that it will help her in improving her voice and singing. Hence, he was held liable by the Court for fraud consent.
The legal maxim volenti non fit injuria plays as a vital defense mechanism in tort law which helps the defendant in escaping liability, with the proof of voluntary consent by the plaintiff. Though there are certain limitations in the cases of rescue and negligence, in many cases it is clearly applied and justified. Cases such as Sm. Mukul Dutta Gupta And Ors. vs Indian Airlines Corporation where the Calcutta High Court held that the defendant is not liable, United India Insurance Co. Ltd. vs GugulothKhana And Ors was another one where the Andhra High Court held that defendant is not liable. These cases are a proofthat justify the doctrine of volenti non fit injuria.
 1 KB 509  E.A. 419 2 (2007) CPJ 17 NC   1 KB 205  AC 325  NJ No 138 (SCTD) (QL) AIR 1962 Cal 311 II (2001) ACC 392, 2001 (2) ALT 185
1. Section 2, Indian Contract Act, 1872.
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