Torts

UNIVERSITY OF PETROLEUM AND ENERGY STUDIES, DEHRADUN

COLLEGE OF LEGAL STUDIES

PROJECT TOPIC: VOLENTI NON FIT INJURIA A JUSTIFICATION

Submitted To: Ms. Monica Rani ma’am

Submitted by: Sonal Agarwal Roll No.

: 092

Sap ID

: 500055666

TABLE OF CONTENTS

1. Introduction 2. Essentials of Volenti non fit injuria  Voluntary  Agreement  Knowledge 3. Limitations to Volenti non fit injuria  Mere knowledge does not imply consent  Consent to illegal acts  Rescue cases 4. Various Applications of Volenti non fit injuria  Volenti non fit injuria in employment relationships  Volenti non fit injuria in cases of suicide  Volenti non fit injuria in cases of sporting events  Volenti non fit injuria in cases of drunk drivers 5. Volenti non fit injuria in india 6. Conclusion 7. Bibliography

INTRODUCTION Volenti non fit injuria is a defence of broad application in law of torts. A translation of the phrase Volenti non fit injuria is, ‘to one who volunteers, no harm is done. When a person consents to infliction of some harm upon himself, he has no remedy for that in tort. No man can enforce a right which he has voluntarily waived or abandoned.1 To claim the defence of Volenti non fit injuria requires a freely entered and voluntary agreement by the claimant, in full knowledge of the circumstances. By satisfying these three conditions only the defendant can claim the defence of Volenti non fit injuria to discharge himself from all legal consequences of their action. Volenti non fit injuria is a complete defence discharging the defendant of all liability. ESSENTIALS OF VOLENTI NON FIT INJURIA The requirements of the defence are thus:   

A voluntary Agreement Made in full knowledge of the circumstances

Voluntary For the defence of Volenti non fit injuria to succeed the claimant must enter into the agreement freely without any force or something. If the consent of claimant is not free the defence will not succeed. If the assent is acquired by fraud, the assent is not genuine and can't be utilized as a protection in a tort. If the assent is acquired from a man who is compelled to give his assent and is not given the flexibility of decision. That assent is not considered in light of the fact that the individual is no longer allowed to pick his choices. This is usually present in master servant relationships where, the servant is forced to commit an act under pressure. Hence no rule of volenti non fit injuria makes a difference to a worker on the off chance that he is compelled to do a demonstration regardless of his challenges. Agreement The second requirement of the defence of Volenti non fit injuria is agreement. To apply this defence it is not necessary for an agreement to be expressed, it can also be implied. Express agreement would be where there exists a contractual term or notice. However, this would be

1

Salmond, torts, 14th ed. , p. 47

subject to the controls of s.2 of the Unfair Contract Terms Act 1977. A n implied agreement is where the claimant by his action has shown his will to accept not only the physical risks of the circumstances but also the legal risks. In Smith v Baker & Sons2, the Claimant sued his employers for injuries sustained while in the course of working in their employment. He was employed to hold a drill in position whilst two other workers took it in turns to hit the drill with a hammer. Next to where he was working another set of workers were engaged in taking out stones and putting them into a steam crane which swung over the place where the Claimant was working. The Claimant was injured when a stone fell out of the crane and struck him on the head. The Defendant raised the defence of volenti non fit injuria that the Claimant knew it was a dangerous practice and still continued to work. At trial the jury found for the Claimant. The Defendant appealed and the Court of Appeal allowed the appeal holding that the Claimant was precluded from recovering as he had willingly accepted the risk. The Claimant appealed to the House of Lords. Held: The plaintiff was entitled to recover from the defendant. It was held that the plaintiff may have been known about the danger involved in the job but he has never given his consent to lack of care. Lord Watson: "The question which has most frequently to be considered is not whether he voluntarily and rashly exposed himself to injury, but whether he agreed that, if injury should befall him, the risk was to be his and not his masters. When, as is commonly the case, his acceptance or non-acceptance of the risk is left to implication, the workman cannot reasonably be held to have undertaken it unless he knew of its existence, and appreciated or had the means of appreciating its danger. But assuming that he did so, I am unable to accede to the suggestion that the mere fact of his continuing at his work, with such knowledge and appreciation, will in every case necessarily imply his acceptance. Whether it will have that effect or not depends, in my opinion, to a considerable extent upon the nature of the risk, and the workman's connection with it, as well as upon other considerations which must vary according to the circumstances of each case."3

Knowledge The plaintiff must have complete knowledge of the circumstances and risk involved. In “Wooldridge v Sumner”,4 the claimant was a photographer at a horse show. He was situated within the ring of the horse show and not behind the barriers where the spectators

2

Smith v Baker&sons [1905]AC 325

3

Child, N.G.L. (1905). Volenti non fit injuria. Jurid.Rev. ,17,43.

4

Wooldridge v sumner [1963] 2 QB 43

were housed. He was on a bench. During the competition, one of the horses, Work of Art owned by the Defendant, came galloping at great speed towards the bench where they were sitting. The Claimant took fright at the approach of the galloping horse and attempted unsuccessfully to pull Miss Smallwood off the bench. He stepped or fell back into the course of the horse which passed three or few feet behind the bench, and was knocked down. The Claimant brought an action in negligence arguing the rider had lost control of the horse and was going too fast. The defendant raised the defence of volenti non fit injuria. It was held that there was no breach of duty so the Claimant's action failed. It was held that defendant owed a duty of care and not duty of skill. A person attending a game or competition takes the risk of any damage caused to him by any act of a participant done in the course of or for the purpose of game or competition notwithstanding that such act may involve some error of judgment or a lapse of skill, unless the participant’s conduct is such as to evince a reckless disregard of specttor’s safety. LIMITATIONS TO THE MAXIM Mere knowledge does not imply consent Knowledge does not necessarily imply assent or consent, mere knowledge of the risk of danger is not sufficient, knowledge of the risk is necessary but it alone cannot attract the application of the maxim. For application of the maxim, the plaintiff must not only have the knowledge, but also the consent to run the risk. In Smith v Baker & Sons,5 it was held that the Claimant may have been aware of the danger of the job, but had not consented to the lack of care. He was therefore entitled to recover damages. At the point when a worker occupied with a business not in itself unsafe is presented to threat emerging from an operation in another division over which he has no control - the peril being made or improved by the carelessness of the business - the minor actuality that he attempts or proceeds in such work with full learning and comprehension of the peril is not decisive to demonstrate that he has embraced the hazard in order to make the maxim "Volenti non fit injuria" pertinent if there should be an occurrence of damage. The question whether he has so attempted the hazard is one of reality and not of law. What's more, this so both at custombased law and in cases emerging under the Employers Liability Act 1880. Consent to Illegal acts Consent to Illegal acts, if a person is charged with a criminal offence, he' cannot avoid his liability on the ground that the victim consented to the commission of the crime.

5

Smith v Baker&sons [1905]AC 325

Rescue cases Another limitation of the maxim volenti non fit injuria is that it does not apply to rescue cases. That is to say, in rescue case although the plaintiff voluntarily takes a risk to save somebody from the danger caused by the wrongful act of the defendant, yet the defendant will not succeed on the plea of volenti non fit injuria. In Haynes vs. Harwood6, the defendant’s servant left two horses unattended on the street. A boy threw a stone at one of the horses and it started to gallop in the street. This endangered the people in the street and seeing this, a constable ran into the path of the horses and stopped their galloping, in doing so, and the constable sustained injuries. The constable filed a case against the defendant. The court ruled that the plaintiff acted in the interest of saving the people in the street and the defence of volenti non fit injuria cannot be used in this case. The court ruled that the doctrine of assumption of risk does not apply when the plaintiff has due to an exigency created by the defendant’s misconduct, deliberately faced a risk to rescue someone from an imminent danger of personal injury or even death. In Baker v TE Hopkins & Son Ltd,7 Mr Ward and Mr Wileman were employed by the defendant, Hopkins. They had been called to clean out a well. The well was 50ft deep and 6ft wide. Hopkins tested the atmosphere in the well by putting a lighted candle down the well. The candle returned still lighted and thus he concluded the atmosphere was fine. He and Ward then took a petrol motored pump down the well started it up and left the well leaving the engine running on its own. The motor ran for 1 1/2 hours before it stopped of its own accord. Before leaving the site Mr Hopkins told Mr Ward and Mr Wileman not to go down the well until the fumes have cleared. The following morning Hopkins again told the two not to go down the well until he had arrived on the site. In breach of these orders Mr. Ward went down the well and was overcome by fumes. Mr Wileman called for assistance and went down the well after him. The claimant, Dr Baker, then arrived on the scene. He too went into the well to seek to rescue the two. Unfortunately all three died of carbon monoxide poisoning. The defendant contended that the act of the doctor acted as a novus actus interveniens and sought to invoke volenti non fit injuria. The doctors actions were not a novus actus interveniens. It was foreseeable that if a defendant by his negligence places another in peril that someone may come to his rescue and the doctor's actions were not unreasonable in the circumstances. The Claimant's action was not defeated by volenti non fit injuria. He was and as such his actions did not count as freely and voluntarily accepting the risk. THE VARIOUS APPLICATIONS IN VOLENTI NON FIT INJURIA

6

Haynes v Harwood[1935] 1 KB 146

7

Baker v TE Hopkins & Son Ltd [1959] 1 WLR 966 Court of Appeal

The defence of Volenti non fit injuria has a broad spectrum of applications, mostly in the tort of negligence where the plaintiff’s duty of care is violated. Some of the popular applications are as follows: Volenti non fit injuria in employment relationships As long ago as 1891, the House of Lords recognised that an employee who complained of unsafe practice, but nevertheless continued to work could not truly be said to have voluntarily agreed to waive their legal rights: Imperial Chemical Industries Ltd v Shatwell8 The claimants were brothers who were qualified shotfirers employed by the defendant. They were injured as a result of an explosion at the defendant's quarry caused by the brothers' negligence. They had insufficient wire to test a circuit to allow them to test from a shelter. Another worker had gone to fetch more wire but the brothers decided to go ahead and test with the shorter wire. Each brother claimed against the defendant based on their employer's vicarious liability for the negligence and breach of statutory duty of the other brother. The defendant raised the defence of Volenti non fit injuria in that the brothers the brothers had full knowledge of the risk and were acting against express instructions. At trial the judge held that the defence of Volenti could not apply where there was breach of a statutory duty. This was upheld in the Court of Appeal. Held: The appeal was allowed. The brothers had deliberately acted in defiance of the employer's express instructions in full knowledge of the risks. The workers were under the statutory duty not the employer. The employer had been instrumental in bringing in the statutory regulations and ensured all workers were aware of them. They had also previously dismissed a worker for flouting the regulations. Volenti non fit injuria in cases of suicide Where the Claimant confers suicide, initially it was held that they would be dealt with as volens on the off chance that they were of sound personality, however in the event that they were of unsound personality the barrier of volenti non fit injuria would have no application. Kirkham v CC Greater Manchester Police9 Mr Kirkham was an alcoholic and suffered from depression. He had made a two suicide attempts on 6th Jan 1980. He was admitted to hospital but discharged himself the following day. When he arrived home his wife prevented him from drinking and he became violent and

8

9

Imperial Chemical Industries Ltd v Shatwell [1965] AC 656 House of Lords

Kirkham v CC Greater Manchester Police [1990] 2 QB 283 Court of Appeal

started smashing furniture. The police were called and arrested him. His wife informed them of his suicide attempts and discharging himself from hospital and it was agreed that he should be remanded in custody for his own safety. However, the police failed inform the prison authorities that Mr Kirkham was a suicide risk. He committed suicide whilst on remand at Risley Remand Centre. His wife brought an action based on the negligence of the police in failing to pass on the information. The Police raised the defences of volenti non fit injuria and ex turpi causa. Held: The claimant was successful. The defence of volenti non fit injuria, although normally would apply where a person of sound mind was to take their own life, had no application where a person of unsound mind took their life. The defence of ex turpi causa was not limited to illegal acts but extended also to immoral acts. The court applied the public conscience test and concluded that to allow the claimant to succeed would not affront the public conscience, or shock the ordinary citizen. Volenti non fit injuria in the case of sporting events A participant in sporting events is taken to consent to the risk of injury which occurs in the course of the ordinary performance of the sport. In Wooldridge v sumner,10 the plaintiff, who was a photographer, was taking photographs at a horse show while he was standing at the boundary of the arena. One of the horses, of the defendant, rounded the bend too fast. As the horse galloped furiously, the plaintiff was frightened and fell into the horse course and there he was seriously injured by galloping horse.the horse in question won the competition. It was held that since the defendant has taken due care, they were not liable.the duty of defendant was duty of care rather than the duty of skill. The spectator in such games takes the risk of damage even if there is a lapse of skill. There is no special duty of defendant towards the plaintiff only ordinary reasonable care is required. The participant may be held guilty of negligence to the spectator if he knew that his lack of skill can harm the spectator watching him even if he had taken reasonable care. In the above case no such question arises. Hence a person attending a game or competition takes the risk of harm caused by the participant in the course of game unless the participant deliberately wants to injure the spectator or has the knowledge that his lack of skill might injure the spectator. Volenti non fit injuria in relation to drunk drivers A person accepting lift from a drunken driver will not be treated as volens unless the drunkenness of driver is so extreme that accepting a lift from him is equivalent to intermeddling with danger himself or walking on the unfenced bluff.

10

Wooldridge v sumner (1963) 2 Q.B. 43

In Dann v Hamilton,11 the Claimant was injured when she was a willing passenger in the car driven by the Mr Hamilton. He had been drinking and the car was involved in a serious crash which killed him. In a claim for damages the Defendant raised the defence of volenti non fit injuria in that in accepting the lift knowing of his drunken condition she had voluntarily accepted the risk. Held: The defence was unsuccessful. The claimant was entitled to damages. In present case the degree of intoxication of the driver was not sufficient that just by glaring at the driver an ordinary person can make out that he is drunk. So here the maxim volenti non fit injuria does not apply as plaintiff was not able to make out that the driver was drunk and impliedly he had not consented for the harm caused to him. However there are cases when the degree of intoxication of driver is so extreme and glaring that accepting a lift from is like intrinsically engaging in dangerous occupation. VOLENTI NON FIT INJURIA IN INDIA One of the earliest tort law cases in India took placed in the year 1915, Ganda Singh v Chuni Lal.12 The defendant had left his horse, that was proved to be a vicious animal, this horse bit the plaintiff. In a claim for compensation it was held that the plaintiff would get compensation because he was not aware of the vicious nature of the defendant’s horse, so the volenti non fit injuria would not apply, though initially there appeared to be a scope for the maxim to be applied. An important case came up in the year 1923, where, not mere knowledge, but knowledge from the perspective of a reasonable man became important-South Indian Industries Ltd vs Alamelu Ammal.13 In this case, the defendants were carrying on the business of breaking up of cast iron, which involved dropping of heavy weight on the iron. This caused the broken iron pieces to fall at a distance of around 4-5 yards. One of these pieces struck the plaintiff who was standing at a distance of even more than 70 yards. The defendant was held liable in, because, he could not prove that at such a distance, the plaintiff had knowledge of the risk, freely and voluntarily accepted the risk. It was held that the defence of volenti non fit injuria can be pleaded if the defendant is able to prove that the plaintiff knew about the risk, appriciated it and agreed to suffer the harm freely. mere knowledge about risk cannot implt that he has consented to bear the injury. In the year, 1937, came up the case Secretary of State vs Rukhmini Bai.14 In this case, the plaintiff’s husband worked under the GIP Railway. Due to negligence on the part of a third

11

Dann v Hamilton [1939] 1 KB 509

12

Ganda Singh v. Chuni Lal [1915] 29 Ind Cas 862

13

South Indian Industries Ltd v. Alamelu Ammal [1923] 45 MLJ 53

14

Secretary of State v. Rukhmini Bai [1937] AIR 354

employee, the plaintiff got killed in an accident. However, in this case, the defence of volenti non fit injuria did not hold, because the plaintiff was acting like a servant following the orders of the employer. Even after India gained independence, the law of torts continued to operate in India. Talking about the defence of volenti non fit injuria in the Indian context, it is imperative for us to discuss the landmark case of Padmavati vs Dugganaika.15 In this case, the plaintiff voluntarily got into the car of the defendant who was drunk. The car toppled over in an accident, the plaintiff claimed for damages. However, damages would not be paid to the plaintiff, because they not only had complete knowledge of the risks involved, but had also voluntarily consented to them and these factors are sufficient to qualify it as a case of volenti non fit injuria. Lakshmi rajan vs. Malar hospital In this case, the plaintiff had a tumor on her breast and went to a hospital to get it surgically removed; she consented to the surgical procedure for the removal of the tumor. The tumor had nothing to do with her uterus. The surgeon not only removed the tumor, but also removed her uterus. The hospital was held liable because they had performed an action without the consent of the patient and the court found the defendants liable. If the consent is obtained by fraud, the consent is not real and cannot be used as a defence in a tort. If the consent is obtained from a person who is forced to give his consent and is not given the freedom of choice. That consent is not taken into account because the person is no longer free to choose his options. This is usually present in master servant relationships where, the servant is forced to commit an act under pressure. Thus there is no principle of Volenti non fit injuria does not apply to a servant if he is forced to carry out an act despite his protests. CONCLUSION In conclusion, we can see from the above research, sources and cases that Volenti Non Fit Injuria, even though just a defence of tort has a broad spectrum of applications but, as we proposed in the hypothesis the scope of this defence is in direct relation with duty of care and the commitment of a negligent act. The application of the defence over time similarly depends on the what is a negligent act in that period of time. As we have seen in the various cases discussed above the application of this defence cannot be limited or fixed for a given situation. E.g.: Iliot v. Wilkes (1820) and Bird v. Holbrook (1828) having a similar situation still have a different application. Due to these variables, we can also conclude that with the changing times, situations, society, law, country, etc., this concept can never stop developing. Hence, it is safe to say that the defence of Volenti Non Fit Injuria will continue to evolve, be interpreted and be applied in various ways over the course of time.

15

Padmavati v. Dugganaika [1975] ACJ 222

BIBLIOGRAPHY 

“The law of torts” by Ratanlal and Dhirajlal 27th Edition



SCC online



E-law sources



Child, N. G. L. (1905).Volenti non fit injuria Jurid. Rev.,17, 43.



M. Michael, A. Jones, Clerk and Lindsell. 2012. Torts.



Law of Torts by Bangia, Dr. R.K. 23rd Edition 2013



Lakshminath, A, and M Sridhar, Ramaswamy Iyer. 2007. The Law of Torts. LexisNexis Butterworths.

.