VOLENTI NON FIT INJURIA
Dr. Janardan Kumar Tiwari
Institute of Law
Jiwaji University, Gwalior
Introduction
In the law of torts, if any person commits any wrongful
act which causes injury to another person, he is held
liable and has to pay damages to the victim of such an
act.
But in some cases even if a person suffers some loss
because of the act of another person, he cannot claim
damages from that person because of the operation of
defences of tort.
One such defence available to a defendant is the
defence of volenti non fit injuria in which the plaintiff is
not entitled to damages because he consents to the
act which has caused injury to him.
What is volenti non-
non-fit injuria
injuria??
In the law of torts, there is a duty on every
person do acts with reasonable care in order
to avoid any harm which may occur due to
their failure of taking such care.
For e.g., If a person is driving his car, he has a
duty to drive the car safely and within speed
limits so that no accident occurs which can
also harm any other person.
In case a person gives his consent to doing of
an act which leads to him getting injured, then
even if an injury is caused by the other person,
he cannot claim any damages from that person
because the act was one for which he
voluntarily consented.
The consent of the plaintiff acts as a defence
and this defence is called VOLENTI NON
FIT INJURIA which means to a willing
person no injury happens.
Illustration:
If A has a bike whose brakes do not
work and B knowing about the
conditions of the bike still chooses to sit
on it with A driving it and due to the
failure of such brakes they both sustain
injuries in an accident, B cannot claim
relief from A because he had voluntarily
consented to sit on the bike.
Elements of Volenti non-
non-fit injuria
There are 2 essential elements in this
defence:
1. The plaintiff has the knowledge of the
risk
2. The plaintiff with the knowledge of risk
has voluntarily agreed to suffer the harm.
Scienti non fit injuria
Only having knowledge about the risk is
not enough for the application of this
defence, It is known as Scienti non fit
injuria, which means that mere
knowledge does mean consent to the
risk.
Thus having knowledge is only a partial
fulfilment of the conditions for the
application of volenti non fit injuria.
BURDEN OF PROOF
In the cases where the defendant is taking the
defence of volenti non fit injuria, the burden
of proof is on him to show that :
1.The plaintiff had full knowledge of the act and
2. The plaintiff had consented to the risk involved in
the act and the defendant has to show that the
plaintiff was also aware of the extent of risk which
was involved in the act for successfully taking this
defence.
CONSENT OF THE PLAINTIFF
The consent of the plaintiff is very
important in the defence of volenti non fit
injuria because only when he
voluntarily gives his consent to an act,
the defendant can take this defence.
Hall v. Brookland (1932) All E.R.
Rep 208,
In this case the plaintiff went to see a car
race in which two cars collided with each
other and as a result of the collision, the
plaintiff who was sitting as an audience
was also injured when one of the cars
flew into the audience. Here the defence
of volenti non fit injuria was applied
because the plaintiff had given his consent
to such a risk by going to the race.
Volenti non fit injuria
and
Contributory negligence
Both contributory negligence and volenti non
fit injuria are used as a defence by the
defendant to escape liability but they differ
from each other.
In contributory negligence, the plaintiff who
has suffered an injury and is also at fault along
with the defendant and therefore the quantum
of damages which he can be awarded is
reduced in proportion to the degree of his
negligence in the act which caused him injury.
Thus, both the parties are at fault in such a
case and therefore this is a partial defence
available to the defendant.
CONCLUSION
Volenti non fit injuria is one of the
defence under the law of torts in which
the person who has committed a wrong
is exempted from liability because the
victim of such a wrong gives his consent
to the commission of such an act and
such a consent must be free for the
successful application of this defence in a
case.
