INTRODUCTION
The term "tort" comes from the Latin word "torture," which literally means "to twist." It refers to twisted, crooked, or illegal behavior and behavior that is not straight. It's the same as the word 'wrong' in English. The tort law currently used in India is based on English law adapted to Indian situations and amended by Indian legislative acts. Its beginnings may be traced back to the creation of British courts in India. In India, English law is selectively implemented as a standard of justice, equity, and good conscience.
A tort is defined as a civil wrong that can be redressed by an action for unliquidated damages and is not only a violation of contract or a breach of trust. “It is a civil wrong for which the remedy is a common-law action for unliquidated damages and which is not primarily the breach of a contract, the breach of trust, or any other simply equitable obligation,” Salmond defines tort. According to Winfield, “tortious liability arises from the breach of a primary legal duty: this responsibility is given to all people, and its failure is redressable by an action for unliquidated damages.”
Trespass to land, trespass to person (which includes malicious prosecution, assault, and battery), carelessness, defamation, and nuisance are examples of torts. When a plaintiff files a lawsuit against a defendant for a tort and seeks damages, the defendant is held accountable if all of the elements of the tort are present. Even in this case, the defendant may be able to avoid culpability. This can be accomplished by claiming some defense. Volenti nonfit injuria, the act of God, plaintiff's own fault, legislative authority, the act of state, and other defenses may be used.
The harm that is inflicted willingly does not constitute a legal injury and is thus not actionable. This notion is encapsulated in the maxim volenti non fit injuria, which directly translates to "anything which a man consents to, cannot be complained of as an injury." The claimant is not permitted to complain of injury to the possibilities he has willingly and knowingly exposed himself. As a result, his agreement is a solid defense against him.
THE DOCTRINE: MEANING AND IMPLICATIONS
'Volenti non fit injuria' is an ordinary tenet of the law which maintains that if someone voluntarily puts themselves in a position to cause harm, with full understanding that some degree of harm may arise, they might inadvertently make a complaint against the other person. The theory only applies to the danger that a reasonable person may have been present having assumed by their acts. The harm willingly incurred is not and cannot be brought against a legal injury. A right that he has freely renounced or abandoned cannot be enforced.
Where the consent is to injure the plaintiff's property, or in any case to use it, such consent is more often referred to as "the claimant's permission and license" Some individuals claimed that the better suitable maxim was volenti inaccurate periculum injuries which mean "those who are willing do not risk damage" since they allude to personal injury in particular. The act causing the harm should not go beyond the limits of what has been agreed upon to protect against volenti nonfit injury. If a person cannot agree for insanity or a minority, then the parent or guardian is sufficient to provide the doctrine as a defense.
To make the defense available, the defendant must be shown that both the type of the risk and the level of the danger involved were well aware of it. The defendant was aware of the dangers involved. Second, the plaintiff should have consented to waived any claims for damages either explicitly (by declaration or in writing) or implicitly (by conduct). . It is important to be noted that, in applying the maximum mere awareness of the danger involved, the consent was not given, that is, science nonest volens. It is vital to have free consent. The defendant's permission could be assumed by behavior and word of mouth if he was justified in stating that the claimant consented, even if he privately refused.
ESSENTIAL ELEMENTS OF THE DOCTRINE
For the defense of violent nonfit injuria to be applicable, the following essentials must be present:
- There should be an agreement.
- The agreement should have been entered into voluntarily.
- The agreement should have been made in full knowledge of the nature and extent of the risk.
There should be an agreement- For the defense to be effective, an agreement should have been reached in the first place. The agreement might be explicit or implicit. Where there is a contractual term or notification, this would be an example of an express agreement. However, this would be subject to the restrictions imposed by section 2 of the Unfair Contract Terms Act 1977. When the plaintiff's actions under the circumstances reflect a willingness to accept the physical risks and the legal dangers, an implicit agreement may exist.
- The agreement should have been entered into voluntarily- It is essential to establish that the plaintiff agreed to the defendant's action for the defense to be applicable. This consent should be freely given and should not be gained by deception or coercion. The agreement must have been freely and voluntarily engaged in.
- The agreement should have been made in full knowledge of the nature and extent of the risk- The consent must have been granted with full knowledge of the risks involved. For the defense of violent nonfit injuria to be applicable, the person claiming it (defendant) must show that the plaintiff was fully aware of the nature and extent of the danger involved. However, simply knowing does not indicate consent. The plaintiff should have decided to bear the injury despite having complete knowledge of the danger.
CONSENT: MEANING AND TYPES
The presence of consent is essential to the defense of violent nonfit injuria. As a result, consent is the most important requirement for this concept to be accessible in torts defense. The theory of volenti non-fit injuria is sometimes referred to as the ‘Consent Defence.' You can't sue someone for trespassing if they come to your residence on your invitation. It's because you gave your permission. You cannot claim the enforcement of a right that you freely relinquished or abandoned. In addition, the defendant's act must be the same as the one for which the consent was obtained. If a person cannot provide his consent due to insanity or because he is a juvenile, the consent of his parent or guardian is sufficient.
Consent can be of two types:
- Express consent
- Implied consent
EXPRESSED CONSENT-
The term "express consent" refers to not assuming permission but is conveyed explicitly and unequivocally. Oral or written consent are both acceptable forms of express permission. If the dangers are considered to be serious, consent is usually written down. The agreements made upon before performing surgical operations are an example of express consent in writing form. You expressly consent to the risk involved in the operation through a written agreement in such instances. When a person welcomes people into his home, allows others to take his belongings, or consents to a medical operation or medical treatment, his consent is said to be express.
In Maung Sein v. Emperor, Ma Thin On authorized an unqualified midwife named Daw so to attend the birth of a child to her with full awareness of the facts and her own free will and choice. Ma Thin On passed away while giving birth to her first child. Ma Thin On would not have been entitled to damages in a suit against Daw because the midwife may claim volenti non-fit injuria. This was a situation in which permission was given voluntarily.
IMPLIED CONSENT-
Implied consent is a debatable kind of permission inferred from a person's behavior and the facts and circumstances of a situation, or in certain situations, from silence or inactivity. It is based on the assumption that one's participation is seen as consent.
An example might be observed in Hall v. Brooklands Auto Racing Club; the plaintiff was a spectator at a motor vehicle race being conducted at Brooklands on a track owned by the defendant corporation. There was a collision between the two automobiles during the race, one of which was thrown into the spectators, hurting the plaintiff. The plaintiff impliedly accepted the risk of such damage, and the defendant was not responsible because the hazard was inherent in the activity and could be foreseen by any spectator.
The law states that “a person attending a game or competition assumes the risk of any damage caused to him by an act of a participant done in the cause of and for the game or competition, notwithstanding that such action may involve an error of judgment or a lapse of sanity.” In the case of Wooldridge v. Sumner, the facts were as follows, the plaintiff, a photographer, was taking shots at a horse exhibition while standing near the arena's edge. One of the defendant's horses went around the bend too quickly. The plaintiff became afraid as the horse galloped fiercely, and he fell into the horses' path, where he was gravely hurt by the rushing horse. The defendant was granted the defense of violent non-fit injuria, which was appropriate.
In Padmavati v. Dugganaika, two strangers took the jeep for a ride while the driver was filling up the tank with gasoline. One of the nuts holding the right front wheel to the axle suddenly fell away, tipping the jeep. The two strangers were pushed out, and as a result, they were injured, with one of them dying as a result.
It was decided that neither the driver nor his master could be held liable, firstly, because it was a complete accident, and secondly, because the strangers had voluntarily entered the jeep, indicating implied consent on their part to the potential risk that could have been involved after taking the lift, and as such, the principle of voluntarily implemented.
FREE CONSENT
For the defense of violent nonfit injuria to be applicable, it must be proven that the plaintiff's assent to the defendant's act was provided freely and without undue influence. A consent gained by deception, coercion, imposition, coercion, drug influence, or deception will not enable the defendant to escape his liability. Furthermore, the defendant's action must be the same as the one for which consent was provided. If a person cannot give their consent due to insanity, the consent of the individual's parent or guardian is adequate.
Consent obtained by fraud:
Consent is tainted by deception. Consent gained by deception is forged, and as such, it provides no help to the defendant in avoiding liability. However, just concealing information may not be considered enough deception to invalidate one's consent. In R. v. Williams, the accused, a music instructor, was found guilty of rape after having sexual intercourse with a 16-year-old girl pupil under the guise of surgery to enhance her voice. As a result, the child consented to the conduct on the mistaken belief that her instructor was performing some medical procedure. This was not recognized a consent that absolved the accused of his responsibility.
Consent obtained under compulsion:
Consent is not suitable when provided in situations where the individual does not have the freedom of choice and is forced to do so. There may be a situation when a person is intentionally obliged to do dangerous labor that he would not have done if he had the option. A master-servant relationship is a common example of this situation.
“A man cannot be said to be truly willing unless he is in a position to choose freely, and freedom of choice presupposes not only full knowledge of the circumstances under which the exercise of choice is conditional, so that he may choose wisely but also the absence of any sense of constraint so that nothing will obstruct his ability to choose wisely.
In the case of Bowater v. Rowley Regis Corporation, the plaintiff, a cart driver, was instructed by the defendant's foreman to drive a horse that was prone to bolting according to both parties' knowledge. The plaintiff objected at first but eventually agreed to do what was demanded of him. The horse bolted, and the plaintiff was injured as a result. The maxim of volenti nonfit injuria was inapplicable in this case, and the plaintiff was entitled to damages.
“The principle of volenti non-fit injuria is one that in the context of master and servant must be applied with considerable caution,” Goddard L.J. stated in the same case. It is unlikely to apply if the conduct for which the servant is considered violent comes out of his routine duties unless the activity for which he is engaged is inherently dangerous. A man whose occupation is not inherently dangerous but who is asked or required to perform a risky operation is in a different situation; it is not enough to show that he obeyed an order or complied with a request that he might have declined as one that he was not bound to obey, whether under protest or not. It must be demonstrated that he accepted that whatever danger there was should be borne by him.”
KNOWLEDGE DOES NOT ALWAYS IMPLY ASSENT
When it comes to implementing this idea, there is a subtle difference between acquiescence and knowledge. Assent is not always implied by knowledge. It is important to notice that the maxim is volenti non-fit injuria rather than scienti nonfit injuria. Even if the plaintiff makes no action to prevent or avoid the wrongful conduct or the existence of an unjustly created risk, mere awareness of the upcoming wrongful conduct or the presence of an unlawfully created risk does not constitute consent.
In itself, though, knowledge is not a sufficient defense. However, in situations when knowledge suggests that the danger was deliberately accepted, the defense is full. Simply because someone was aware of the danger does not mean he agreed to take it. Two points must be proven for the maxim of volenti nonfit injuria to apply:
- The plaintiff knew that the risk is there.
- He, knowing the same, agreed to suffer the harm.
The plaintiff in Smith v. Baker was employed at the defendant's stone quarry and had worked there for months with the full awareness that he was in danger due to the defendant's negligent practice of hanging stones over the quarrymen's heads using a crane. The plaintiff was injured by the falling stone. It was determined that his knowledge of and acquiescence in the danger did not exclude him from obtaining damages but rather served as evidence to the jury on whether he had agreed to take the risk on himself. As a result, knowledge of the risk and acceptance of the risk are not equivalent.
In Yarmouth v. France, the plaintiff, a carter, complained to his employer, the defendant, that the horse he was supposed to drive was violent and hence unsuited for the drive. Nonetheless, the defendant asked him to drive the horse, and he was injured due to his actions. The defendant was found responsible in the lawsuit brought by the injured driver seeking damages from him, and his argument that the plaintiff should not have driven was rejected.
LIMITATIONS OF VOLENTI NON-FIT INJURIA
The extent of implementation of the concept of volenti nonfit injuria has been limited in several circumstances. The doctrine's applicability is subject to the following restrictions:
- When there is permission for illegal behavior, the concept has no place in the issue. Unlawful conduct cannot be considered to have been legalized by permission. In Lane v Holloway, the defendant, who was 23 years old at the time, ran a cafe near the plaintiff's home. Late at night, young people attended the cafe. The claimant objected to the kids' behavior, and their relationship was strained. The claimant hurled insults at the defendant's wife from outside their home one night. The defendant stood and walked outside. The plaintiff punched the defendant because he thought he was about to be hit. The defendant then hit the plaintiff in the eye, causing him to undergo eighteen stitches as a result. It was decided that neither volenti nonfit injuria nor extra pi causa notorious action applied and that the plaintiff was entitled to full compensation for his injuries.
- When an action is brought because of a violation of a statutory obligation, the maxim does not apply. The defendants in Wheeler v. New Merton Board Mills Ltd. put dangerous equipment in their factory - as part of the plant with the purpose that it be utilized by their employees - that was not gated or guarded as required by the Factory and Workshop Act 1901. The plaintiff, a defendants' employee, was wounded on the job due to the machine's condition. The machine was permitted to be operated in the state it was in at the time of the accident, not because of the defendants' carelessness but because of their foreman's. The trial judge ruled that the defense of violent nonfit injuria did not apply to an action based on a breach of statutory duty.
- The plaintiff cannot be met with the defense of violent nonfit injuria when willingly confronted with the risk of rescuing someone from an imminent danger induced by the defendant's unlawful act. In Haynes v. Harwood, the defendants' servant left a two-horse van on the street unattended. A boy purposefully hurled a stone at the horses, forcing them to bolt, putting women and children on the road in severe danger. When a police constable on duty at a neighboring police station saw the situation, he managed to halt the horses. Still, in the process, he injured himself and suffered critical injuries. Because it was a rescue case, the defendants could not invoke the defense of violent nonfit injuria, and they were found guilty. In the present case, Greer L.J. adopting the American rule said that “ The doctrine of the assumption of risk does not apply where the plaintiff has, under an exigency caused by the defendants wrongful misconduct, consciously and deliberately faced a risk, even of death, to rescue another imminent danger of personal injury or death whether the person endangered is one to whom he owes a duty of protection, as a member of his family, or is a mere stranger to whom he owes no such special ” Mr. Ward and Mr. Wileman worked for the defendant,
- T.E. Hopkins & Son Ltd., in Baker v. T.E. Hopkins & Son Ltd. A well was filled with deadly gases from a petrol-powered pump due to the employer's carelessness, and Mr. Ward and Mr. Wileman were overpowered by the gases. Dr. Baker was summoned, but he was advised not to enter the well owing to the danger. Despite this, Dr. Baker rushed inside to try to save the two. Sadly, all three perished as a result of carbon monoxide poisoning. The doctor's widow filed a lawsuit against the workmen's employers, seeking compensation for her husband's death. The conduct of the rescuer was judged to be a natural and predictable result of the defendant's illegal behavior, which the latter might have predicted. Therefore the defense of violent nonfit injuria was rejected.
- It is required to show that the defendant was not careless in his actions for the defense of violent nonfit injuria to be applicable. When the plaintiff agrees to accept a risk, the defendant is presumed not to be negligent. For example, if the plaintiff had surgery, he would have no right of action if the procedure was unsuccessful because he had agreed to risk. However, if the procedure fails due to the doctor's carelessness, he will very certainly be entitled to compensation. The claimant was harmed in Dann v. Hamilton while a voluntary passenger in Mr. Hamilton's car. He had been drinking, and his car was engaged in a terrible accident in which he died. In response to a claim for damages, the defendant used the defense of violent nonfit injuria, claiming that she had freely accepted the danger by taking the lift knowing of his inebriated state. The claimant was entitled to damages since the defense was not provided.
- When the plaintiff's action for which the defense under the maxim must be claimed is the same act that the defendant had a responsibility to prevent, the defendant's scope is similarly limited. Mr. Kirkham was an alcoholic and depressed when he sued the Chief Constable of Greater Manchester in Kirkham v. Chief Constable of Greater Manchester. He had attempted suicide twice before. He was admitted to the hospital, but he was discharged the next day. He became a tyrant at home. The cops were summoned. His wife told them of the situation, and it was decided that he should be remanded in jail for his own protection. On the other hand, the police failed to notify the jail officials that Mr. Kirkham was a suicide danger. During his detention at Risley Remand Centre, he committed suicide. His wife filed a lawsuit alleging that the police were negligent in neglecting to pass on the information. The defense of volenti non-fit injuria was not granted to the police since they had a higher duty of care to the public and had broken that obligation; hence, the maxim was not applicable.
CONCLUSION
Volenti nonfit injuria is a Latin adage that has taken on the status of a good defense in tort law. It assists the defendant in avoiding responsibility for the conduct committed by him since the other person consented, or at the very least assented to the conduct that caused their injury.
To begin with, the maxim helps the defendant avoid responsibility for deliberate conduct that would otherwise have been tortious. Second, the theory of volenti nonfit injuria applies when permission is provided in exchange for the risk of some injury that would otherwise be actionable. When the defense of violent nonfit injuria applies, it functions as a full defense, absolving the defendant of all culpability since the claimant had accepted to risk the injury that may have been inflicted in the course of or owing to the conduct. Only when all three of the maxim's essentials are present in the strict sense, that is, there should have been an agreement for the act done, the plaintiff should have had full knowledge of the risks involved, and they should have "freely" consented to run the risk involved, does the maxim come into play as a defense. The consequences of being aware of the danger involved and consenting without being under duress are obvious and specified. As described in this project, these are the areas where the scope of the defense has been limited on several occasions. . The concept of volenti nonfit injuria is an imperfect but effective tort defense since its reach has been limited numerous times despite the presence of all the necessary elements.
REFERENCES
Image source:
Books:
- Bangia, Dr. R.K., “Law of Torts,” Allahabad Law Agency, Faridabad, 22nd, edn, 2011.
- Pandey, Dr. J.N., “Law Of Torts, with Consumer Protection Act and Motor Vehicle Act,” Central Law Publications, Tenth edition 2019.
Websites:
- Raje, Sakshi ( October 06, 2018), Volenti Non-Fit Injuria, https://lawtimesjournal.in/volenti-non-fit-injuria/
- Volenti Non-Fit Injuria (January 05, 2020), https://lawcirca.com/volenti-non-fit-injuria/
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