LAW OF TORTS
Dr. RAM MANOHAR LOHIYA
NATIONAL LAW
UNIVERSITYLUCKNOW
2018-19
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VOLENTI NON FIT INJURIA
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SUBMITTED TO:
Mrs. Ankita Yadav
ASSTT. PROFESSOR (LAW) SUBMITTED BY:
Animesh Kumar Rajoriya
SEMESTER:- II
SECTION :- “A”
ROLL NO.: 022
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LAW OF TORTS
ACKNOWLEDGMENT
I would like to convey my sincere thanks to my colleagues, who
painstakingly reviewed most of the content Special thanks, are due to our
PROFESSOR Mrs. Ankita Yadav (LAW OF TORTS).
I am grateful to my mother for her enormous help in formatting and
verifying the contents of the said project work. I am also thankful to the seniors for
ensuring that project would be well enough to be presented in front of others. I also
acknowledge the contribution of my friends for the editing, proof checking and
general guidance they have provided. This has been invaluable. Finally, I’m
indebted to all my teachers for verifying of the content.
I am also very grateful to the various sources of information, the
journals, magazines and lots of articles which provided me all aspects of
information.
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Table of Contents
ACKNOWLEDGMENT………………………………………………………………..2
CHAPTER : 1 INTRODUCTION………………………………………………………4
CHAPTER : 2 MEANING OF THE DOCTRINE, VOLENTI NON FIT INJURIA.....5-6
CHAPTER : 3 DOCTRINE’S APPLICATION…………………………………………7
CHAPTER : 4 CASES WHERE THIS DOCTRINE HAS BEEN IMPLIED…….… 8-12
CHAPTER: 5 BIBLIOGRPAGY………………………………………………………13
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INTRODUCTION
Volenti non fit iniuria (or injuria) (Latin: "to a willing person,
injury is not done") is a common law doctrine which states that if
someone willingly places themselves in a position where harm might
result, knowing that some degree of harm might result, they are not
able to bring a claim against the other party in tort or
delict. Volenti only applies to the risk which a reasonable person
would consider them as having assumed by their actions; thus
a boxer consents to being hit, and to the injuries that might be
expected from being hit, but does not consent to (for example) his
opponent striking him with an iron bar, or punching him outside the
usual terms of boxing. Volenti is also known as a "voluntary
assumption of risk."
Volenti is sometimes described as the plaintiff "consenting to run a
risk." In this context, volenti can be distinguished from legal
consent in that the latter can prevent some torts arising in the first
place. For example, consent to a medical procedure prevents the
procedure from being a trespass to the person or consenting to a
person visiting your land prevents them from being a trespasser.
TENTATIVE CHAPTERISATION
Definiton of the Doctrine
Doctrine’s Application
Tort for which this doctrine stands
Case studies having this doctrine’s application
Exceptions to this doctrine
Conclusion
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CHAPTER : 2 MEANING OF VOLENTI NON FIT
INJURIA
Volenti non fit iniuria (or injuria) (Latin: "to a willing person, injury
is not done") is a common law doctrine which states that if someone
willingly places themselves in a position where harm might result,
knowing that some degree of harm might result, they are not able to
bring a claim against the other party in tort or delict. Volenti only
applies to the risk which a reasonable person would consider them as
having assumed by their actions; thus a boxer consents to being hit,
and to the injuries that might be expected from being hit, but does not
consent to (for example) his opponent striking him with an iron bar,
or punching him outside the usual terms of boxing. Volenti is also
known as a "voluntary assumption of risk."
Volenti is sometimes described as the plaintiff "consenting to run a
risk." In this context, volenti can be distinguished from
legalconsent in that the latter can prevent some torts arising in the first
place. For example, consent to a medical procedure prevents the
procedure from being a trespass to the person, or consenting to a
person visiting your land prevents them from being a trespasser.
It is a defence of limited application in tort law. A direct translation of
the latin phrase volenti non fit injuria is, 'to one who volunteers, no
harm is done'. Where the defence of volenti applies it operates as a
complete defence absolving the Defendant of all liability. It is often
stated that the Claimant consents to the the risk of harm, however,
the defence of volenti is much more limited in its application and
should not be confused with the defence of consent in relation to
trespass. The defence of volenti non fit injuria requires a freely
entered and voluntary agreement by the Claimant, in full knowledge
of the circumstances, to absolve the Defendant of all legal
consequences of their actions. There is a considerable overlap with
contributory negligence and since the introduction of the Law Reform
(Contributory Negligence) Act 1945, the courts have been less willing
to make a finding of volenti preferring to apportion loss between the
parties rather than taking an all or nothing approach.
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The requirements of the defence are thus:
1. A voluntary
2. Agreement
3. Made in full knowledge of the nature and extent of the risk.
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CHAPTER :3 DOCTRINE’S APPLICATION
In English tort law, volenti is a full defence, i.e. it fully exonerates the
defendant who succeeds in proving it. The defence has two main
elements:
The claimant was fully aware of all the risks involved, including
both the nature and the extent of the risk; and
The claimant expressly (by statement) or implicitly (by actions)
consented to waive all claims for damages. Knowledge of the risk
is not sufficient: sciens non est volens ("knowing is not
volunteering"). Consent must be free and voluntary, i.e. not
brought about by duress. If the relationship between the claimant
and defendant is such that there is doubt as to whether the consent
was truly voluntary, such as the relationship between workers and
employers, the courts are unlikely to find volenti.
It is not easy for a defendant to show both elements and
therefore comparative negligence usually constitutes a better defence
in many cases. Note however that comparative negligence is a partial
defence, i.e. it usually leads to a reduction of payable damages rather
than a full exclusion of liability. Also, the person consenting to an act
may not always be negligent: a bungee jumper may take the greatest
possible care not to be injured, and if he is, the defence available to
the organiser of the event will be volenti, not comparative negligence.
Consent to medical treatment or consent to risky sports on the part of
the claimant excludes liability in tort where that consent is informed
consent.
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CHAPTER :4 CASES AND CATEGORIES
WHERE THIS DOCTRINE HAS BEEN
APPLIED
Trespassers
The Occupiers' Liability Act 1984 requires all owners of property to
take reasonable steps to make their premises safe for anyone who
enters them, even those who enter as trespassers, if they are aware of
a risk on the premises. However, the doctrine of volenti has been
applied to cases where a trespasser exposed themselves deliberately to
risk:
Titchener v British Railways Board [1983] 1 WLR 1427
Ratcliff v McConnell [1997] EWCA Civ 2679
Tomlinson v Congleton Borough Council [2003] UKHL 47
In the first case (decided before the Occupier's Liability Act was
passed), a girl who had trespassed on the railway was hit by a train.
The House of Lords ruled that the fencing around the railway was
adequate, and the girl had voluntarily accepted the risk by breaking
through it. In the second case, a student who had broken into a closed
swimming-pool and injured himself by diving into the shallow end
was similarly held responsible for his own injuries. The third case
involved a man who dived into a shallow lake, despite the presence of
"No Swimming" signs; the signs were held to be an adequate warning.
Drunk drivers
The defence of volenti is now excluded by statute where a passenger
was injured as a result of agreeing to take a lift from a drunk car
driver. However, in a well-known case ofMorris v Murray [1990] 3
All ER 801 (Court of Appeal), volenti was held to apply to a drunk
passenger, who accepted a lift from a drunk pilot. The pilot died in the
resulting crash and the passenger who was injured, sued his estate.
Although he drove the pilot to the airfield (which was closed at the
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time) and helped him start the engine and tune the radio, he argued
that he did not freely and voluntarily consent to the risk involved in
flying. The Court of Appeal held that there was consent: the
passenger was not so drunk as to fail to realise the risks of taking a lift
from a drunk pilot, and his actions leading up to the flight
demonstrated that he voluntarily accepted those risks.
Rescuers
For reasons of policy, the courts are reluctant to criticise the
behaviour of rescuers. A rescuer would not be considered volens if:
1. He was acting to rescue persons or property endangered by the
defendant’s negligence;
2. He was acting under a compelling legal, social or moral duty;
and
3. His conduct in all circumstances was reasonable and a natural
consequence of the defendant’s negligence.
An example of such a case is Haynes v. Harwood [1935] 1 KB 146, in
which a policeman was able to recover damages after being injured
restraining a bolting horse: he had a legal and moral duty to protect
life and property and as such was not held to have been acting as a
volunteer or giving willing consent to the action - it was his
contractual obligation as an employee and police officer and moral
necessity as a human being to do so, and not a wish to volunteer,
which caused him to act. In this case the court of appeal affirmed a
judgement in favor of a policeman who had been injured in stopping
some runaway horses with a van in a crowded street. The policeman
who was on duty, not in the street, but in a police station, darted out
and was crushed by one of the horses which fell upon him while he
was stopping it. It was also held that the rescuer's act need not be
instinctive in order to be reasonable, for one who deliberately
encounters peril after reflection may often be acting more reasonably
than one who acts upon impulse.
By contrast, in Cutler v. United Dairies [1933] 2 KB 297 a man who
was injured trying to restrain a horse was held to be volens because in
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that case no human life was in immediate danger and he was not
under any compelling duty to act.
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:
Smith v Baker & Sons [1891] AC 325
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 in that the Claimant knew it was a dangerous
practice and had complained that it was dangerous but nevertheless
continued. 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 3:2 Decision.
The appeal was allowed. 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.
Lord Watson:
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"In its application to questions between the employer and the
employed, the maxim as now used generally imports that the
workman had either expressly or by implication agreed to take upon
himself the risks attendant upon the particular work which he was
engaged to perform, and from which he has suffered injury. 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."
Unsuccessful attempts to rely on volenti
Examples of cases where a reliance on volenti was unsuccessful
include:
Nettleship v. Weston [1971] 3 All ER 581 (Court of Appeal)
Baker v T E Hopkins & Son Ltd [1959] 3 All ER 225 (Court of
Appeal).
In the first case, the plaintiff was an instructor who was injured while
teaching the defendant to drive. The defence of volenti failed: that is,
because the plaintiff specifically inquired if the defendant's insurance
covered him before agreeing to teach. In the second case, a doctor
went in to try to rescue workmen who were caught in a well after
having succumbed to noxious fumes. He did so despite being warned
of the danger and told to wait until the fire brigade arrived. The doctor
and the workmen all died. The court held that it would be "unseemly"
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to hold the doctor to have consented to the risk simply because he
acted promptly and bravely in an attempt to save lives.
Generally courts are reluctant to recognise voluntary assumption of
risk. An example of a court reluctant to find a voluntary assumption
of risk includes Carey v Lake Macquarie City Council [2007]
NSWCA 4. Instead the conduct amounted to contributory negligence,
which is not a complete defence.
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CHAPTER : 5 BIBLIOGRAPHY
Books –
o Law of torts by R.K. Bangia
o The law of torts- by Ratanlal and Dhirajlal
o Law of tort- by P.S.A. Pillai
Websites –
https://en.wikipedia.org/wiki/Volenti_non_fit_injuria
Articles -
http://e-lawresources.co.uk/Volenti-non-fit-injuria.phP
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