Volenti non fit Injuria
According to the general principle of law, every man is the best judge of his interest and therefore one who voluntarily agrees to suffer harm is not allowed to complain for that. Consent to suffer harm may be express or implied. The maxim volenti non fit injuria means voluntarily suffered injury is not fit for action. Therefore, if the plaintiff voluntarily agrees to suffer some harm, he is not allowed to complaint for that and his consent serves as a good defence against him. Consent to suffer the harm may be express or implied. For example when somebody is invited to house, then in that case he cannot be sued in a court of law for trespass as the consent is express. Same is the Case with the spectator who is injured by a car coming on the track during a motor race, as in this Case there is an implied consent to suffer harm.
The application of the maxim ‘volenti non fit injuria’ depends on the existence of following conditions:
- Consent to suffer harm should be voluntarily given by the plaintiff; and
- The plaintiff had the knowledge of risk.
The Plaintiff must know the nature of the act or work and its extent of danger or risk. If he does not know, or reasonably cannot understand the nature and extent of risk involved with the performance of an act, it will be presumed that he had no knowledge of the risk. There is a distinction between knowledge and assent.
Knowledge does not necessarily imply assent. In order to apply the maxim two conditions are required: Firstly, the plaintiff was aware of the risk involved and secondly, he with knowledge agreed to suffer harm.
In Hall v Brooiclands Auto Racing Club (1931) 1 K.B. 205, the plaintiff was a spectator at a motorcar race. During the race, there was a collision between two cars, one of which was thrown among the spectator, thereby injuring the plaintiff. Held that the duty towards spectator was the duty of care rather than the duty of skill. Thus, error of judgment or lapse of skill on the defendant’s part will not make him liable in a horse show [Woolridge v Summer (1963) 2 QB 43].
In Padmavati v Dugganaika (1975) 1 Karnt. L.J. 93, 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 toppling the jeep. The two strangers were thrown out and one of them died. Held that neither the driver nor the master could be made liable, firstly, because it was a case of sheer accident and, secondly, the strangers had voluntarily got into the jeep.
- The consent must not have been induced by fraud, compulsion, coercion, undue influence, misrepresentation, mistake. etc. Moreover the act done by the defendant must be the same for which the consent is given. For example, if a guest is requested to sit in the drawing room and without any authority or jurisdiction he enters the bedroom, he would be liable for trespass and he cannot take the defence of your consent to his visit to your house. When a person is incapable of giving his consent because of his insanity or minority, consent of such person’s parents or guardian is sufficient.
- Consent obtained by fraud is not real. Thus, in v Williams (1923) 1 K.B. 340, the accused, a music teacher, was held guilty of rape when he had sexual intercourse with a minor girl on the pretext of an operation to improve her voice. Similarly, the consent obtained under compulsion is not a free consent. Such a situation generally arises in master-servant relationship. The servant may sometime be faced with the situation of either accepting the risky work or losing the job. But if a workman adopts a risky method of work of his own free will he can be met with the defence of volenti non fit injuria (Imperial Chemical Industries v Shatwell 1965 A.C. 656).
Knowledge of a danger or risk is not the same thing as the consent to bear the danger. In order to avail knowledge as a defence, it is necessary first to prove that the plaintiff was aware of the risk and second that he, knowing the same, agreed to suffer the harm. Thus, mere knowledge of the risk (Scienti non fit injuria) is not enough (it is not a defence). It is not correct to say that no injury is done to one who knowingly does an act.
`Scienter’ is a word applied especially to that clause in a declaration of certain classes of actions in which the plaintiff alleged that the defendant knowingly did or permitted that from which arose the damage of which the plaintiff complained. In an action of deceit the scienter must be averred and proved. In Cutler v United Dairies (London) Ltd. (1953) 2 K.B. 297, the driver of a cab with restive horses cried for help. The plaintiff went and attempted to hold the horse but it threw him on the ground causing him injuries, in respect of which he sued the defendant. Held that the plaintiff has no right of action, as he must have known that his attempt to hold the horse was attendant with risk, and therefore, the maxim volenti non fit injuria applied.
In Bowater v Rowley Regis Corpn. (1944) K.B. 476, the plaintiff, a cart driver was asked by the defendant’s foreman to drive a horse, which to the knowledge of both, was liable to bolt. The plaintiff protested, but ultimately took out the horse in obedience to the order. The horse bolted and the plaintiff was injured thereby. Held, the maxim volenti non fit injuria did not apply and the plaintiff was entitled to recover.
In Smith v Baker (1891) A.C. 325, the plaintiff was workman employed by the defendant on working a drill for the purpose of cutting a rock. By the help of a crane, stones were being conveyed from one side to the other, and each time when the stones were conveyed, the crane passed over the plaintiff’s head. While he was busy in his work a stone fell from the crane and injured him. The plaintiff had been generally aware of the risk; however, held that the mere knowledge of the risk without the assumption of it does not help in applying the maxim. It must be shown that the plaintiff agreed or appreciated that what risk there was should lie on him.
In Dann v Hamilton (1939) I K.B. 509, a lady knowing that the driver of the car was drunk chose to travel in it instead of an omnibus. Due to the driver’s negligent driving an accident was caused resulting in the death of the driver himself and injuries to the lady passenger. The court held that the lady was entitled to claim compensation. The reason why the defence of volenti non fit injuria was considered to be not applicable was that the degree of intoxication of the driver was not to such an extent that taking a lift could be deemed to be consenting to an obvious danger.