Doctrine of consent without any real consent “Volenti non fit injuria”

Law of Tort

(CLAW 204)

Submitted by:

Pranav Agrawal

PROV.BBA.LLB/11-20/049

2020-2025

Submitted to:

Dr. Heena Ghanshyam Patoli

Alliance School of Law

Alliance University, Bengaluru

Date of Submission:

04/07/2021
 DECLARATON

I declare that the seminar paper entitled " Doctrine of consent without any real

consent “Volenti non fit injuria” has been prepared by me and it is the original work
carried out by me for the fulfilment of the requirements of B.B.A, L.L.B(Hons.) degree
programme of School of Law, Alliance University. No part of this seminar paper has already
formed the basis for any examination/evaluation requirement of any degree.
Name of the Student: Pranav Agrawal
Registration Number: PROV/BBA.LLB/11-20/049
Batch: 2020-25
School of Law
Alliance University, Bengaluru.
Date: 4/7/2021
 ABSTRACT

The maxim often used in law of torts “Volenti non fit injuria” is one of the most used general
defence of tort the literal meaning of this maxim is “to a willing person, no injury is done”.
Here as per the literal meaning it is not clear that the consent is free or not but if we see a few
definitions of this we will get a clear picture. According to Salmond and Heuston the
agreement to exempt the defendant from the duty can be expressed or even implied Here we
can see that it is not necessary that the consent is expressed it can be implied. But this is
where the problem strikes there is no need of a contract to use the defence of volenti non fit
injuria only agreement can be used as the consent of the party. But in this adventure thirsty
world we need to have some strict rules so that the big business houses do not exploit this
area of the law against the society, need of the hour is to mandate a contract between the
parties to use this defence of volenti non fit injuria.

KEYWORDS
Volenti non fit injuria General defense
Agreement Exemption from duty
Contract
 TABLE OF CONTENT

CONTENT Pg.
SNO. no.

1 CHAPTER 1: INTRODUCTION 1-7

1.1. Introduction ---------------------------------------------------------- 1

1.2. Research Problem -------------------------------------------------- 2

1.3. Existing Legal Situation -------------------------------------------- 3

1.4. Literature Review ---------------------------------------------------- 4

1.5. Research Objectives ------------------------------------------------- 5

1.6. Research Questions---------------------------------------------------- 6

1.7. Hypothesis-------------------------------------------------------------- 6

1.8. Methodology ------------------------------------------------------------ 7

2 CHAPTER 2: NEED AND ADVANTAGES OF A WRITTEN CONTRACT 8-10
2.1 Discussing few cases on this defence-------------------------------- 8-9
2.2 Advantages of having a written contract---------------------------- 9
2.3 Disadvantages of having a written contract------------------------ 9-10
3 CHAPTER 3: IMPACT ON ADVENTURE SPORTS 11-12
4.1 Brief overview------------------------------------------------------- 11
4.2 Indian adventure sports industry----------------------------------- 11
4.3 Impact of changing the law regarding defence------------------ 12
4 CHAPTER 4: SUGGESTIONS 13

5 CHAPTER 5: CONCLUSION 14

6 BIBLIOGRAPHY 15
 LIST OF CASES

 Hall v. Brookland Auto Racing Club (1933) 1 KB 205

 Parker vs South Eastern Railway 2 CPD 416

 Dann v. Hamilton [1939] 1 K.B. 509

 Illot v. Wilkes (1820) 3 B & Ald 304

 CHAPTER 1: INTRODUCTION

CHAPTER 1

Introduction:

Volenti non fit injuria is one of the most used maxims when we talk about the general
defences in torts. The literal meaning is to a willing person no injury is done1 ,that means that
through this defence the defendant the proves that the plaintiff has waived his/her right and
they are not liable to pay any compensation to the plaintiff. We can use the example of the
most prominent case i.e., Hall v. Brookland Auto Racing Club2 facts: there was a race that took
place at the defendant’s race course in which an accident took place and one of the cars flung
to the audience killing two spectators. Issue: the plaintiff sued the race track owner for
negligence that he owed a duty of care towards the spectators which was not fulfilled.
Judgement: the learned judges held that the defendant was not liable as he followed a
reasonable duty of care and said that the spectators knew the risk of attending a race. In this
case there was an acceptance of risk by buying the ticket i.e., by conduct or can be called
implied acceptance. But in the 21st century where there is a growing craze and fandom of
these dangerous motor-sport we need to change the rule a bit, a written contract should be
mandatory to use this defence. That is, whenever we are going to attend or participate in any
of this dangerous sport there should be a written contract signed between the parties even if
the risk is known to the person. This would be like a last step if they want to change their
mind before taking the risk and the law would also be completely aware about the waving of
rights by the plaintiff.

1
Legal Information Institute
https://www.law.cornell.edu/wex/volenti_non_fit_injuria#:~:text=(voh%2Dlen%2DtI%20non,standards%20of
%20tort%20liability 4 July 2021
2
Hall v. Brookland Auto Racing Club (1933) 1 KB 205

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Research Problem:

DO WE NEED A WRITTEN CONTRACT OR AN EXPRESSED PROMISE FOR

TAKING THE DEFENCE OF VOLENTI NON-FIT INJURIA?

A contract as defined in the India contract act 2(h) is a legally binding agreement which is
enforceable by law in India a contract be either oral or written, in the business procedure
lawyers usually recommend to have a written contract as is it decreases the number of
disputes and even if disputes happen, they can be easily adjudged in a contract as they are
already written and framed according to the needs of the society.

Thus, it is always helpful to have a written contract. It not only helps the court to decide the
case easily but makes it impartial as both of the parties have agreed and know all the
conditions already.

When we talk about the defence of volenti non fit injuria it is about waving off the right to
seek compensation and waving of a right shouldn’t be made on implied acceptance this issue
of waving away someone’s own right cannot be taken on a lighter note rights of each and
every person in India should be taken seriously and they should be made more aware about
them. And waving off one’s right shouldn’t be made so easy that big people start exploiting
them.

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Existing Legal Situation:

In India though this maxim is not directly mentioned in the Indian laws but its essence is
scattered over in the law. In IPC section 87, 89 & 92 give a sense that they are based on this
maxim. Section 87 says that if any act is not done with the intention or is not known to be
likely to cause grievous injury and is done with the consent either expressed or implied of a
person above the age of 18 is not an offence, though intention is irrelevant in tort here
intention is also considered. Section 89 says that any act is done in a bona-fide way to benefit
any child (below the age of 12) and a person of unsound mind with the consent of the
guardian or the lawful in charge of such person, either expressed or implied, if causes harm
is not an offence, situation in which this exception does not work are also given in the
section. Section 92 says that if any act causes harm which is done in a bona-fide manner even
without the consent of such person (when it is impossible for the person to signify consent)
it is not an offence, for example if A is stuck in his car after an accident an B pulls him out
and, in this A, breaks his arm which was stuck in the steering wheel then he can not sue B for
compensation of such harm as the act was done by B to save A and send him to hospital as
fast as possible.

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Review of literature:

The defence of volenti non fit injuria which means that the person taking a risk voluntarily
has no right to claim damages from the risk generator. The knowledge of the skill and then
the free consent in a necessity to this. The literature I have used here mainly deals with the
definition of volenti non fit injuria its exceptions and its implementation in different scenarios
all around the country. We know that free consent is a necessity but there are no laid down
guidelines for getting the wilful consent it means that a person can even get it without any
expressed or written contract any implied agreement will be taken as an implied consent for
example buying a ticket to the roller-coaster will work as a consent to waive of your right.

The articles and journals reviewed by us define the maxim in terms of the duty of care that
one person owes to the other and goes on saying that this maxim has been derived from the
doctrine of specific assent and if any person has knowledge of the risk and accepted to take
the risk wilfully then the negligent person is no more negligent and no more owes a duty of
care who have taken the consent. However, it does not talk about any guidelines given out in
any case law or is formed for taking the consent all it says that the consent must be free, this
in turn leads to a problem that the consent taken even through implied means where the
person does not know the terms can also be used. The literature reviewed also sets the
different sets of relationship where this defence is applicable like employee-employer, buyer-
seller etc. One of the journals extensively talks about the employee-employer relationship
whereas the other dealt with the consent part where we were able to locate the gap.

The literature guided us to get an overview of the defence and the origins of the maxim they
helped us a lot in gaining more knowledge about the history of the subject and the summary
of relationships where it can be used. Literature gave us an outline and new cases to discuss
for our topic.3 4 5

3
S. P. Singh, “VOLENTI NON-FIT INJURIA AND TORTIOUS LIABILITY” Vol. 17, Journal of the Indian
Law Institute, 91, 92-95, 1975
4
Charles Warren "Volenti Non-Fit Injuria" in Actions of Negligence Vol. 8, Harvard Law Review ,457, 457-460
1895
5
A. J. E. Jaffey “Volenti Non-Fit Injuria” Vol. 44, The Cambridge Law Journal, 87, 87-90, 1985

4|Page
Research Objectives:

To analyse the need of a written contract for using the defence

In this paper we will analyse the need of the written contract with the help of some of the
landmark judgements in which the defendant took the defence of volenti non fit injuria.

To evaluate the advantages and disadvantages of having a written contract for using the
defence

Having a written contract has a lot of advantages over the implied consent by the plaintiff
some of the advantages which are enlisted in the project.

To evaluate the effects on the adventure sports industry of having a written contract for
defence volenti non fit injuria

This step if taken will definitely affect the adventure sports industry as it will not only be an
increase in paper work but also, we have a tendency of not wanting to sign a contract for
everything we do and especially if has a danger to our lives thus, even an expressed proposal
should be considered if we want to continue booming the adventure sports industry.

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Research questions:

 WHAT IS THE SIGNIFICANCE OF EXPRESSED CONSENT WHILE WAVING

OF THE RIGHT OF A PERSON?

 WILL THERE BE ANY IMPACT ON THE BUSINESS OF ADVENTURE SPORT

INDUSTRY IF THE WRITTEN CONTRACT IS MADE COMPULSORY?

Hypothesis:

Only if there is a written contract then the defence of volenti non fit injuria should be
given.

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Research Methodology:
This research is conducted to dive deeper in the defence of volenti non fit injuria know about
the limitations which are present because we know that no law can be perfect.

In this research we did a non-doctrinal research are using qualitative data from secondary
sources.

Methods of data collection

The main source of our data here were parts or chapters from different law journals published
by various esteemed university like Cambridge University’s law journal we used official sites
like www.JSTOR.com and www.henionline.com.

The data was originally made for the purpose of understanding the concept of the defence and
it was based on many non-doctrinal research papers, cases and law journals. We only took
those articles which were comparatively new and have been time and again used in the
research of this defence.

Analysis of the data

After collecting the data, we analysed it by co relating it to different scenarios of the real
world. We tried to find the loopholes in the defence or how can it be misused for unjust
enrichment of an individual or a group of individuals. We tried to get out the essence of the
defence and for whom it was really meant for.

Advantages of using non-doctrinal method

 Non doctrinal method has been from a very long time used by legal practitioners and
jurists, it is a dependable tried in tested method.
 In this age of technology, the internet has more sources than any library can ever
dream of having physically thus a wide variety of data to choose from.
 Easy to interpret.
 Takes a lot less time than any other method.
 Best method when one is dealing with qualitative data.

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 CHAPTER 2: NEED AND ADVANTAGES OF A WRITTEN CONTRACT

Discussing a few cases on the defence:

In this section we will discuss about a few landmark cases in which the defence of volenti
non fit injuria was used and what would be the consequences if there was a written contract
among the parties.

Parker vs South Eastern Railway

Brief Fact:

1. Mr Peter gave his bag for storage in the cloakroom and received a receipt on this it
was written turn back and on the back side the terms and conditions were written,
there it was written that if the value of the luggage is more than €10 then the company
will not be responsible for any loss incurring to such person.
2. Mr Peter agreed that there was something written which he saw but he didn’t read it.

Judgement:

The court said that since he has seen that something was there it can be said that there was an
implied consent and the judgement was given in the favour of the company the court also
added that if he hasn’t seen anything on the ticket then the company would have been liable. 6

My view:

Here we can comprehend it was nearly impossible for Mr. Peter to know the terms and
conditions as it can be reasonably comprehended that no one sees the backside of a ticket we
are accustomed of people dictating them to us. Now here if there was a written or expressed
contract Mr Peter won’t have kept his luggage there on the first place and he would he now
knew the risk completely and is knowingly waving off his right of not getting the
compensation.

Dann vs Hamilton7

Brief facts:

The plaintiff got in the car of the defendant. The plaintiff knew that the driver was drunk and
accident can happen but still went with him

6
Parker vs South Eastern Railway 2 CPD 416
7
Dann v. Hamilton

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As expected, the car crashed and both the plaintiff and defendant suffered injury.

Judgement:

It was held that the defence of volenti non fit injuria is applied and the plaintiff does not have
any right to claim damages as he was fully aware of the risk and accepted in an implied
manner by continuing the journey.

My view:

I think that in this case a written contract was not a possibility as you will not ask a friend to
sign a contract before he/she comes in your car and thus it was a correct decision by court.

Advantages of having a written contract:

Though we know that written contracts are lengthy and one needs professional help for
making a written contract nut having a written contract has numerous advantages.

1. It is a proof: In the eyes of law any written document has a greater value than
anything else that is why it is always advised to have a written contract. If one has a
written contract, it is always easy to proof the right thing in front of the court.
2. It’s gives a guarantee of promise: One of the basic elements of the contract is
promise it gives a sense of guarantee that the terms of the contract will be followed.
3. Both the parties are well versed with the clauses of the contract: Since both the
parties would have already negotiated that the terms and conditions of the contract
already, they would know what are the clauses.
4. It helps the judges to resolve the disputes as the terms and conditions are already
known to the parties.
5. It doesn’t lead to unjust enrichment of any of the parties: It provides all the parties
an equal ground and does not lead to the unjust enrichment of any one person.

Disadvantages of having a written contract:

1. Time consuming: To sit and draft a contract is a lengthy and time-consuming process
and if we do not have time, it cannot be made as we saw in the Dann vs. Hamilton
case discussed above it was quite unreasonable to make a contract thus r=they are not
always a go to option.
2. Need of the professional help: Without any professional help it is a little difficult to
make a contract which is legally correct thus one needs a professional help, and since

9|Page
 not every body is a lawyer thus, they have to pay some heavy charges making it
costly.

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 CHAPTER 3: IMPACT ON ADVENTURE SPORTS INDUSTRY

Brief overview:
Adventure sports also known extreme sports usually include sports with a risk element with
them, a physical exertion, speed, height etc. they are not particularly defined anywhere its
origins date back to 1990’s. The craze of this segment of sports has been increasing from the
very inception and in the 21st century it is at its peak point.8 If we talk about the major
adventure sports which are competitive in nature, they are highly regulated by the respective
statutory body like FIA for formula racing, they have set rules and various safety regulations
are followed these cars are made so safe that even if the car catches fire after a crash there are
still high chances that the driver may come out alive. A proper contact is signed by the racers
that they have the full knowledge of the risk.

Thus, the defence of volenti non fit injuria can be taken by the company who are sponsoring
these drivers, though mostly the sponsors stand by their drivers/players to display Corporate
social responsibility and increasing its goodwill but they have a chance not to and that would
be perfectly legal.

Indian adventure sports industry:

In India the adventure sports industry is a bread and butter of millions the hotspots are
Shimla, Kullu, Manali, Rishikesh, some regions of Jammu, Goa and almost every city with a
beach has high probability of having at least one adventure sports mainly Jet skiing. But the
concern is it is highly unregulated and organised and there is no statutory body or a watch
dog above them thus they do not have to worry much about the safety and precautions. The
youth is easily lured by them to quench their thirst of adventure.9

In these conditions it is easy for them to prove that there was a knowledge of the risk and the
implied consent by participating in it. In these even if a person dies in one such sports if the
person dies and there was no negligence on the part of these companies they cannot to legally
touched as they can prove that there was an implied consent as he sat in the ride. Here we can
say that he waived of his right to life without even an expressed consent this is the main
problem.

8
Wikipedia https://en.wikipedia.org/wiki/Extreme_sport 3 July 2021
9
Sreenath Padmanabhan “A SCOPE FOR ADVENTURE TOURISM IN INDIA – A REVIEW” Volume 118
No. 18 ijpam 4747, 4748 4749 2018

11 | P a g e
Impact of having a written contract on adventure sports industry of India:

If having a written contract is made mandatory and a statutory body is established so that it
cam make norms it will definitely lead to curbing of the malpractices and there would be a
sense of responsibility among the companies against the customers that they have to take care
of them and their safety. This will be a great step but only if implemented properly.

We know that proper implementation is necessary and is one of the major problems in India
which makes it important to make a statutory body so that it can overlook to the whole
process.

This process is though very good for the consumers but for the providers it can be a difficult
task as we know that a written contract is not easy to draft and professional help is necessary,
this limitation can lead to mass unemployment in that sector. To curb this the government can
make a universal form like a standard contract. But the existence of a contract is a must.

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 CHAPTER 4: SUGGESTIONS

I can give the following suggestions to the government and the law-making authorities

 Making a regulatory authority to keep a check on the small adventure sports

companies so that they always have a contract.
 Making it mandatory to have a contract to high risk works such as a work in the
chemical factory so that the company does not take the defence only on implied
consent of the people/labours.
 Make more strict rules to use the defence of volenti non fit injuria.

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 CHAPTER 5: CONCLUSION

In conclusion I would like to say that since my hypothesis is disproved in the second chapter
of this paper thus, we can say the that it is not always necessary to have a written contracts to
avail the defence of volenti non fit injuria. Sometimes it is of no reasons or is preposterous.
Like in the Illot v. Wilkes’s10 case when the plaintiff got injured from the spring guns the
court said that a person who is trespassing in some one’s property with a mala-fide intent
cannot be given compensation and the owner in this case can take the defence of vloenti non
fit injuria and here in this case we can say that having a contract with the trespasser is
impossible and preposterous.

But also, we can conclude that in the case where there is a possibility of waving of a major
right like right to life in that case the written contracts should be made compulsory as we see
in the cases of adventure sports in India.

10
Illot v. Wilkes (1820) 3 B & Ald 304

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 BIBLIOGRAPHY

 Legal Information Institute

https://www.law.cornell.edu/wex/volenti_non_fit_injuria#:~:text=(voh%2Dlen%2DtI

%20non,standards%20of%20tort%20liability 4 July 2021

 Hall v. Brookland Auto Racing Club (1933) 1 KB 205

 Parker vs South Eastern Railway 2 CPD 416

 Dann v. Hamilton

 Wikipedia https://en.wikipedia.org/wiki/Extreme_sport 3 July 2021

 Sreenath Padmanabhan “A SCOPE FOR ADVENTURE TOURISM IN INDIA – A

REVIEW” Volume 118 No. 18 ijpam 4747, 4748 4749 2018

 Illot v. Wilkes (1820) 3 B & Ald 304

 S. P. Singh, “VOLENTI NON-FIT INJURIA AND TORTIOUS LIABILITY” Vol.

17, Journal of the Indian Law Institute, 91, 92-95, 1975

 Charles Warren "Volenti Non-Fit Injuria" in Actions of Negligence Vol. 8, Harvard

Law Review ,457, 457-460 1895

 A. J. E. Jaffey “Volenti Non-Fit Injuria” Vol. 44, The Cambridge Law Journal, 87,

87-90, 1985

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