To make a very simple translation of the Roman Law maxim Volenti Non Fit Injuria, it means that things suffered voluntarily are not fit/deemed to be an injury; or an injury cannot arise out of a voluntary act (of the aggrieved party).
This defence absolves the tort-feasor from any liability, if it is proved that the tort arose out of an informed and wilful act of the injured party. So, consent of the aggrieved party forms the essence of this defence.
To start with a classic example, if you go to a watch an IPL T20 match at a stadium, you know that the bowlers will be sent to the cleaners (find-the-meaning-if-you-don’t-know-it-already alert) every now and then; and, you could well end up on the receiving end of one of those huge sixes.
But, then, you run that risk knowingly, and are sensible enough to understand the possible effects of being on the end of such a rocket of a sixer! If you are guessing that you alone are responsible for what might happen to you, then you are right. The batsman hit the ball; and, let’s say for argument’s sake that the stadium operators did not put up ‘adequate protection’ such as fencing all over the stands (which is a bit unreasonable) – but, you were aware of all that, and still chose to run that risk. So, like all choices that you make in life, this one is on you too!
However, if, let’s say, you are driving your car from your office to your home and are some 200 feet from the stadium, and at that very moment Chris Gayle, playing for Royal Challengers Bangalore, hits one large, inhuman six which goes past the roof of the stadium and smashes straight through your windshield and into your right hand… That is not your fault.
The fact the six is termed ‘inhuman’ impliedly means that the chances of that happening in our human world are rare – were it the case that raining sixes was a common sight outside the bounds of the stadium, the outcome would be different.
That would make the harm foreseeable. In the instant case, the harm was unforeseeable, so you could not be said to knowingly suffer the harm.
On that line of thinking, if the roof of the stadium were to collapse, which is wholly unrelated to the game of cricket, and also unforeseeable, then the organizers cannot claim the defence of volenti – because, you cannot consent to what you are not aware of/ what cannot be expected to happen under normal circumstances.
So far we have established knowledge as a pre-dominant requisite for volenti to apply. However, that is not absolute.
Let’s look at cases of rescue, where the rescuing party suffers harm while undertaking the rescue.
Say, you are a policeman/woman and your task is to ensure the protection of citizens and enforcement of law and order. While on duty, you see a group of horses, attached to a carriage, get startled for some reason and start galloping down the road. Now, to protect the people around from injury, you get in the way of the horses to try and stop them, and are injured in the process.
The defence of volenti will not be available to the tortfeasor although you were aware of the dangers and undertook your course of action voluntarily. This is because – here we draw a distinction from the cricket match case – you cannot be said to accept the risk of getting injured by the horses.
Your duty-bound objective was to save the people from harm. Thus, there is a fine line between knowledge of the risk and acceptance of the risk. You cannot be said to accept everything that you happen to be aware of. If that were the case, then in case you accidentally get hit by a car on the road, the defence will simply be that accidents happen, and you went on the road being aware of the same, so the driver has no liability – it needs no telling how erroneous this argument is.
However, if as an altruistic citizen (who is not obligated by law or anything else) you put yourself in harm’s way, the defendant may be able to claim the defence of volenti.
The acceptance of the risk may be implied (like when you go to a stadium for a cricket match, you accept the normal risks of the match) or expressed.
Also, the consent has to be free consent, and not vitiated by factors such as coercion, undue influence, misrepresentation, etc. If the relationship between the parties show that one party holds a position of influence over the other (master-servant, worker-employee), VNFI is unlikely to find application.
Consent, thus, is also a subjective element – in both cases of the cricket match and the horses, there is an apparent presence of both knowledge and acceptance; however, we have rebutted the presence of consent in the latter case to show why VNFI will not apply there. The outcome will depend on the facts and circumstances of the case (including the relationship between the parties, the legality of the act itself, etc).
Finally, the act of the tortfeasor cannot be an illegal/unlawful act, in order to claim the defence of volenti. If X kills Y with Y’s consent, who is a healthy adult, fully aware of the consequences, X will still be liable for homicide, since killing of another human cannot be justified in law. Also, the harm caused cannot exceed the harm consented, unless it is a foreseeable that excess harm will be caused. Harm caused by acts undertaken negligently cannot be said to have been consented to.
Volenti can thus be claimed when there is:
i) Knowledge of the risk, or the risk being such that there is a reasonable expectation that it might occur, and thus, the plaintiff is also expected to be aware of it; and
ii) Consent/acceptance of the risk – either implied or expressed.
a. Consent of the injured party will depend on the obligations of the parties towards each other; a police-person is supposed to arrest criminal, and a criminal cannot claim volenti if he shoots a police-person, saying that the latter approached him to make an arrest, despite knowing that he was armed and would shoot.
b. In rescue cases, persons such as a police officer (legal) and a parent (social/moral/legal) have an obligation and volenti cannot be claimed against them. Thus, persons acting under an obligation cannot be said to accept the injury caused to them, despite having knowledge of the same.
Questions to solve:
Principle: In case the plaintiff voluntarily agrees to suffer some harm, he is not allowed to complain for that, and his consent serves as a good defence against him.
(Note: Supplementary/ additional principles will be given wherever necessary.)
Explanation: Whenever a person has to give his consent to any activity, the consent must
be free and must not be a result of force, fraud, or misconception. The act consented to cannot be an unlawful/illegal act.
1. Plaintiff was employed by the Defendant for working a drill used to cut rocks. Cranes were used to move stones from one side to the other, and each time, the crane would pass over P. While P was busy working, a stone fell from the crane and injured him. The plaintiff was generally aware of the hazards of the job, but wasn’t specifically told by the employers that the crane would be operating right above his head. Decide:
a) Defendants will not be liable since P should’ve been careful to look around him.
b) Defendants will not be liable since P did not take make necessary enquiries about the hazards.
c) Defendants will be liable since they were negligent in not informing P about the functioning of the crane.
d) Defendants will be liable since P cannot be said to have consented to the harm as he was not aware of the crane operating above his head.
(d. Defendants will be liable since general risks of the job does not include a crane with heavy stones swinging over-head. C is not the best answer since it makes the defendant liable for negligence, rather than volenti – remember that you have to answer according to the given Principle. The chance of an industrial grade crane dropping something during a routine workday is very slim – else, we would have better cranes – so, P could not have reasonably expected the mishap.)
2. Jimmy was the owner of a couple of horses. At night secured them in the stable, and bolted the door. An unprecedented storm ensued through the night, and a tree beside the stable collapsed and brought down a side of the stable itself. The horses were able to free themselves and escaped. In the adjoining plot of land, Tom was outside moving the foodgrains from the storage to the main house. He took his son to the tent beside the storage so that he could keep an eye on him while he was outside. The horses were incidentally headed in the tent’s direction, and Tom had to stop them to avoid harm to his 4 month-old son. He was severely injured in the process and sued Jimmy. Will a defence of volenti succeed?
a) Jimmy would be liable for harm caused to Tom.
b) Jimmy would be liable to Tom since Tom tried to stop the horses only because they seemed to be a threat to his property.
c) Jimmy would not be liable since the horses’ escaping was completely unforeseeable and out of his control.
d) None of the above.
(d – the important facts here are that Tom had an obligation towards his son and the harm was suffered in course of fulfilling the same; and, that the escape of the horses were outside Jimmy’s control and unforeseeable. Volenti, therefore, has no application in this case, and such a claim will not succeed. C seems lucrative, but it applies the ‘Act of God’ defence – unforeseeable events caused by natural forces – which we will discuss later, rather than volenti. We have to keep in mind that we cannot mix and match/ import facts and principles as we like. Staying within the given parameters, B seems probable, but for the fact that it says “Jimmy is liable”, it is incorrect, since he is not liable, although Tom’s act was obligatory in nature. That is because the act was unforeseeable, which is also a requirement for harm caused in volenti. However, volenti is inapplicable here. Therefore, we have to resort to d, as although Jimmy cannot claim volenti here he is not liable – as suggested by a & b.)
3. Afzal installed spring guns on his property to deter trespassers. However, he did not put up a notice. At night, Guru decided to take a shortcut through Afzal’s property, which was not fenced, and triggered the spring guns, getting injured in the process. Will Afzal be able to claim volenti?
I. Yes, since Afzal has a right to protect his property against trespassers, and Guru should have been aware of the same and stayed off the property.
II. No, since Afzal’s use of spring guns are perhaps unlawful, and an unlawful act cannot be justified.
III. No, since the harm caused exceeded what Guru may have reasonably expected, thus, Guru did not consent to the same.
IV. No, since Guru did not have any mala fide intention when he entered Afzal’s property.
V. Yes, since Guru knowingly consented since he could have had a reasonable expectation that there would be some mechanism to protect an unfenced property.
a) I b) I & V c) II, III, & IV d) II & III
(d – Guru could not have possibly expected spring guns. IV is an irrelevant point for this defence.)
4. An old lady was walking in a narrow one-way lane in the opposite direction. It was night time and there was no street lighting. A car moving in right direction but without headlights knocked her down since the driver could not see her. She filed a suit against the driver.
a) She would lose, because she violated the traffic rules in the first instance.
b) She would lose, because she voluntarily exposed herself to risks.
c) The driver would lose, because he drove without the headlights on.
d) None of the above
(c – The lady was walking on a one way lane and as such there are no traffic rules applicable to pedestrians. In any case, such acts do not warrant getting hit by a car out of nowhere. Now, the car driver was driving his car without headlights, which is a gross violation on his part. Therefore, he is liable to the old lady because had he driven the car with headlights on, he could have averted the collision.)
5. Raj was in a hurry to get to the airport to catch the plane and he hired a taxi run by Capital Taxi Company, well known in that locality. Raj asked the driver to drive fast. In the city zone, there was a speed limit of 60 km per hour and the driver, rather reluctantly, drove quite fast at 90 km per hour to reach the airport in time. As a result, the driver lost control and hit an obstacle and Raj was badly injured. Raj filed a suit against the Taxi Company.
a) The Taxi Company would not be liable since Raj asked the driver to drive fast.
b) The Taxi Company would be liable, because the driver ought not to have exceeded the speed limit.
c) The Taxi Company would be liable, because “driving fast” should only mean driving within the speed limits prescribed by law.
d) None of the above.
(c – it was a negligent act on the driver’s part to exceed the speed limit, that too by a significant amount. The driver is the person who is aware of the road regulations, so it was his duty to remain within its limits, despite any requests from the passenger. Also, requesting the driver to drive fast, does not translate into accepting liability for an untoward accident caused by the driver)
6. Addl. Principle: Precautions can be taken only against reasonably foreseeable mishaps.
At an athletic meet, during a hammer throw, the hammer came apart and hit a middle distance runner who was sitting 10 meters outside the throwing area. The runner sustained severe injuries on the head and neck. The runner filed a suit for damages. The standard precautions were taken for throwing the hammer.
I. Would be able to recover because the organizers had failed to keep the equipment in good condition.
II. Would not be able to recover because the injuries were caused in a freak accident.
III. Would not be able to recover because she had agreed to participate in the sports meet with all the attendant risks.
IV. Would not be able to recover because the accident was not reasonably foreseeable.
a) I b) I & II c) III d) II, II & IV.
(d – straightforward application of the Principle)
7. VC Kormokar is a magician, who performs jaw-dropping tricks. One of his magic tricks included putting an assistant in an opaque box, which he would slice in half with a saw, only for the assistant to escape unharmed. It is, however, just an illusion, since there is a safety mechanism which guides the blade around the assistant and leaves her in one piece. On an unfortunate evening, during a routine magic show, he cuts into the flesh of one of the assistants. The assistant sues him.
a) VCK will be able to claim the defence of volenti since the mechanism could not be said to be fail-proof, and the assistant is expected to be aware of it and take that risk.
b) VCK will not be able to claim volenti since the assistant’s consent was hinging on the safety mechanism. She cannot have consented to the harm of being cut into pieces.
c) VCK will be able to claim since his tricks are often dangerous and are reasonably expected to be able to cause harm to a person’s body.
d) None of the above.
(b – the safety mechanism is there to assure a person that harm will not be caused and to ensure the same as well. In such a case, the assistant could not have expected to be injured by the saw.)
8. A was one of the spectators at a formula one car race, being held at Gurgaon, on a track owned by one M company. During the race, there was a collision between two racing cars, one of which was thrown away amidst spectators, thereby causing an injury to A, A claims damages for the injuries caused to him.
a) M company will be liable for damages because the injury was caused during the race organized by it.
b) M company will not be liable for damages because A had come to see the race on his own will.
c) M company will not be liable for damages because the collision between the cars was beyond its control.
d) M company will be liable because it has earned huge revenue by way of sale of tickets for the event.
(b – This situation is similar to going to a stadium for a cricket match; straightforward application of the principle.)
9. It was very late in the night, when Serena found herself almost stranded in Russel Street, looking for a taxi. After a long anxious wait, she found one, but the driver turned out to be drunk. The extent of the driver’s intoxication however would ideally not disturb his driving, so she continued. The driver drove rashly, and both of them were injured when the taxi struck a lamppost. She claimed damages from the driver, and the driver claimed volenti. Note that in this happened in Neverland, where drunken driving is not an offence.
a) Serena could have waited for another taxi, and it was at her own peril that she boarded the taxi. She cannot claim damages.
b) Serena can claim damages since the harm caused was not obvious in the circumstances of the case, and it happened only due to the driver’s negligence.
c) The driver can successfully plead volenti since he did not ask Serena to board his taxi and he was merely saw an opportunity to make some extra money on his way back home.
d) The driver can successfully claim, since the harm was caused out of the accident and not his negligence.
(b – c & d are completely unreasonable. The accident arose out of the driver’s negligence, so it was he who was at fault. Boarding the taxi did not mean that she consented to negligent acts by the driver, especially when there was no reasonable expectation for him to drive negligently – the amount of drunkenness was very insignificant to hamper his driving.)
10. Adam (the plaintiff) & Jarvis are brothers working in a quarry. They try to test some detonators, without any precautions, and flouting their employers’, the Iron & Steel Co. (Defendants), orders and statutory obligations. The explosion injured Adam, who brought a suit against the Defendants since Jarvis was equally responsible for the act, and the Defendants would be vicariously liable as Jarvis’ employers. The defendants claimed volenti, and the Plaintiff countered that the defence was not applicable in case of a breach of statutory obligations.
a) Adam would have no claim since he was a co-participant in the unlawful act.
b) Adam could plead successfully since without Jarvis’ help he wouldn’t have succeeded in carrying out the test.
c) Adam would have no claim since he flouted the company’s orders.
d) Adam would have no claim because he is an idiot.
(a – simple application of the Principle. Even we would have been tempted to go for d…but that was before we started our venture towards law school! Choosing a over d is apparently the difference between a lawman and layman, and we’ll leave it at that, for now.)
1 thought on “<b>General Defences in Tort</b>: Volenti Non Fit Injuria”
Amazingly Explained! Thank you 🙂