VOLENTI NON-FIT INJURIA AND NECESSITY

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This article is written by Nammrta Singh of LLM of 1^st Semester of Chandigarh University, an intern under Legal Vidhiya

Abstract –

“Volenti non-fit injuria,” a Latin legal maxim, translates to “to one who is willing, no injury is done.” This principle encapsulates the legal concept that if an individual knowingly and willingly exposes themselves to a risk, they cannot later claim injury or harm resulting from that risk. Rooted in the principles of personal responsibility and autonomy, this doctrine serves as a defense in tort law cases, acknowledging that individuals have the right to make choices that may entail certain risks.

The application of volenti non-fit injuria requires a demonstration that the plaintiff was not only aware of the potential harm but also voluntarily accepted it. Courts often consider the nature of the activity, the clarity of the risk, and the mental capacity of the individual involved. While the principle seeks to protect individual autonomy, its application is not absolute and may be subject to limitations, such as situations involving fraud, duress, or unequal bargaining power.

This abstract explores the historical origins, theoretical underpinnings, and practical applications of the volenti non-fit injuria doctrine within the legal landscape. Examining relevant case law and necessity of it, it sheds light on the delicate balance between individual freedom and the societal interest in providing redress for genuine harms, thereby contributing to a nuanced understanding of this fundamental legal principle.

KEY WORDS – Defence, Law of Torts, Public Necessity, Private Necessity, Necessity, Volenti non-fit injuria

Introduction –

Volenti non-fit injuria, a Latin legal maxim meaning “to one who is willing, no injury is done,” stands as a foundational principle within the realm of tort law. Embedded in the fabric of legal philosophy, this doctrine embodies the concept that individuals who knowingly and willingly expose themselves to certain risks cannot subsequently claim injury or harm resulting from those risks. Originating from the rich tapestry of legal history, the principle of volenti non-fit injuria reflects a society’s acknowledgment of personal autonomy and individual responsibility.

This legal maxim operates as a shield for defendants in tort cases, allowing them to argue that the plaintiff, by their own choice, assumed the risks associated with a particular activity or circumstance. The application of this doctrine hinges on the demonstration that the plaintiff possessed both awareness of the potential harm and a voluntary acceptance of the associated risks. The nuanced interplay between personal autonomy and societal interests in providing remedies for genuine injuries forms the backdrop against which volenti non-fit injuria unfolds.

As we delve into the origins, theoretical foundations, and practical applications of this legal principle, it becomes evident that the concept extends beyond a mere defense mechanism. Instead, it prompts a deeper exploration of the delicate balance between individual freedom and the societal imperative to address injustices. Through the examination of pertinent case law, scholarly discourse, and real-world scenarios, this exploration seeks to elucidate the complexities surrounding volenti non-fit injuria and contribute to a comprehensive understanding of its role within the broader legal landscape.

Meaning of volenti non-fit injuria-

Put simply, if someone gives his or her permission to do something that causes them to get hurt, even if that someone else causes the injury, the person who gave the permission cannot be held liable for any damages because he or she gave their consent voluntarily. The defense of “volenti non-fit injuria,” which holds that no harm can come to a willing party, is based on the plaintiff’s consent.

One more crucial factor is the implied or expressed consent to suffer harm.

Illustrations –

When an accident occurs where the brakes on an A-owned bike malfunction and B, aware of the condition of the bike, decides to sit on it while A drives and both of them get hurt, B cannot sue A for damages because he gave his consent to sit on the bike.

However, in the example above, B would still be able to sue A for damages if he had been sitting in the car and had been injured despite B’s ignorance of the brakes’ condition because B had not given A his permission to assume the risk of injury in the event that the brakes failed.

It does not follow that your actions of causing harm exceed the scope of the consent if you have a consent of defense. To try to decipher the meaning of the above line, let’s use the example of a seen.

If a player hits while the game is being played legally, that player has no further recourse. However, the defense of volenti non-fit injuria cannot be raised if another player intentionally causes harm. Likewise, a surgeon cannot escape responsibility for careless surgery by asserting the consent defense.

Constituents of Volenti non-fit injuria-

A voluntary acceptance of risk is required-

This implies that the participant had to be aware of the risk involved in the activity and have given their consent to take it. People who engage in risky sports, such as scuba diving or rock climbing, are presumed to have accepted the risks involved in those activities.

Risk acceptance needs to be educated-

This implies that the individual had to have been completely aware of the type and degree of risks associated with the activity. This can be accomplished by disclosure, admonition, or consent. For instance, someone is deemed to have given informed consent to the risks when they sign a waiver acknowledging the risks involved in a particular activity.

The individual needed to be able to give consent-

This implies that in order to accept the risk, the individual had to be of sound mind and able to make an informed choice. For instance, someone under the influence of alcohol or drugs might not have been able to give informed consent regarding the risks involved in a given activity.

Risk acceptance has to be voluntary-

This implies that the individual had to be free from any form of coercion or forced participation in the activity. One cannot be said to have accepted the risk involved in an activity, for instance, if they are coerced into engaging in a risky one against their will.

The danger needs to be legitimate –

This implies that the risk must be one that the law accepts as reasonable. For instance, because boxing is a sanctioned sport, a person who willingly takes part in a match is not eligible to receive compensation for any injuries they may have sustained.

The risk must be reasonable given the potential reward –

This indicates that there must be a greater benefit from the activity than there is risk. For instance, if someone plays sports and runs the risk of getting hurt but gains enjoyment or self-satisfaction instead, the risk might be deemed disproportionate to the gain.

Consent in volenti non-fit injuria

One drawback is that if the individual did not fully understand the risks associated with the activity, the principle might not apply. For instance, someone may not have given informed consent to the risks involved in a given activity if they were not adequately warned or disclosed about those risks. The person may be entitled to compensation for any harm or injury sustained in these situations, and the principle of volenti non-fit injuria may not apply.

Another restriction is that if the individual was coerced or forced to engage in the activity, the principle might not apply. A person cannot be considered to have voluntarily accepted the risk involved in a dangerous activity, for instance, if they are threatened with bodily harm if they choose not to engage in it. The person may be entitled to compensation for any harm or injury sustained in these situations, and the principle of volenti non-fit injuria may not apply.

An additional restriction is that the principle might not be applicable if the individual lacked the capacity to provide informed consent regarding the risks associated with the activity. For instance, someone may not be able to make an informed decision to accept the risks involved with a particular activity if they are mentally ill or impaired by drugs or alcohol. The person may be entitled to compensation for any harm or injury sustained in these situations, and the principle of volenti non-fit injuria may not apply.

Furthermore, if the person’s injury was not a reasonably foreseeable result of the activity, the principle might not be applicable. For instance, if someone gets hurt in a car accident while taking part in a sanctioned street race, they might be entitled to financial compensation because the harm they experienced was not expected from the activity. The person may be entitled to compensation for any harm or injury sustained in these situations, and the principle of volenti non-fit injuria may not apply.

Cases related to Volenti non-fit injuria

In Dann v. Hamilton[1], a woman decided to ride in the car despite knowing the driver was intoxicated. The defendants entered the plea of volenti nonfit injuria in response to the driver’s careless driving, which caused an accident that left the woman injured and the driver dead. The defendants were sued for damages.

The plea was rejected, and it was noted that there was not much intoxication. Therefore, it is impossible to assume that a driver could cause an accident. Despite being aware that she was intoxicated, the woman did not agree to the injury.

In the defense of consent, Hall v. Brooklands Auto Racing Club[2] is a key case. The plaintiff was riding in a defendant truck when she watched a race car event at Brooklands. The defendant raised the defense of consent after the plaint was injured in a car crash during the race. The plaintiff was found to have assumed the risk because the sport was inherently dangerous, and the defense was accepted. The accused was declared not guilty.

In Smith v. Baker & sons[3], the plaintiff was an employee of the defendant, and the site where he used to work had a crane that carried rocks over their heads. The plaintiff had also complained to the defendant about it. One day plaintiff was injured because of these rocks falling on him and thus he sued the defendant for damages. It was held that the defendant was liable and had to pay damages because the plaintiff had consented to the danger of the job but not to the lack of care.

Exception to volenti non-fit injuria –

The defense of consent has an exception for rescue cases. The defendant will be held accountable if permission was granted to save someone as a result of the defendant’s careless actions. The defense of consent cannot be raised against the plaintiff when he willingly takes a chance to save someone from an impending danger brought about by the defendant’s wrongdoing.

On this point, Haynes v. Harwood[4] is a significant authority. After bringing two horses into the town, the defendant’s servant left them to finish some other tasks. The kids were upsetting the horses, so they broke loose. The plaintiff, a police officer, saw the horses in a rage and went to stop them, injuring himself in the process.

He filed a lawsuit for damages against the owner. Since the defense of violent non-fit injuria did not apply in a rescue case, the court found the defendant liable.

A horse that is stopped and poses no threat will have no recourse.

Necessity as a Defense-

Although it is generally forbidden to unduly interfere with another person’s rights or property, there is one exception to this rule: if someone finds themselves in a situation where they must interfere with another person’s rights in order to protect themselves or their property, then that interference is permitted. The defense of necessity acknowledges that there may be circumstances in which someone must be permitted to break the law in order to respond because of their extreme urgency.

This idea is based on the Latin proverb “Salus populi suprema lex esto,” which states that the welfare of the people should come first and that any harm done to someone’s property or rights is justified if it prevents more harm from occurring.

The Indian Penal Code defines necessity as “an act likely to cause harm, but done without criminal intent, and to prevent other harm” (Section 81).Nothing that is done in good faith to prevent or avoid further harm to people or property, even if it is done with knowledge that it is likely to cause harm and without any criminal intention, is considered an offense.

History of Doctrine of Necessity –

The doctrine of necessity has its roots in the writings of Henry de Bracton, a medieval jurist. He stated that “that which is otherwise not lawful is made lawful by necessity”. Later, the controversial case of Federation of Pakistan v. Maulvi Tamizuddin Khan (1955) came up before the judiciary of Pakistan.

In this case, the Chief Justice of Pakistan i.e., Muhammad Munir legally validated the extra-constitutional use of emergency powers by Governor-General, Ghulam Mohammad. Further, the then Chief Justice of Pakistan referred to the aforementioned maxim of Henry de Bracton thus implementing the doctrine of necessity. The case of Federation of Pakistan v Maulvi Tamizuddin Khan (1955) paved the way for the use of the doctrine of necessity by various other Commonwealth countries. But, the condition in the application of this doctrine is that even by the use of bias, justice must not only be done but it must appear to have been done. Therefore, the doctrine of necessity is an exception to the principle of nemo judex in causa sua.

When it comes to the case of India, the landmark case of Gullapalli Nageswara Rao v. APSRTC (1958) is known for invoking the doctrine of necessity. The said doctrine was later modified into the Doctrine of Absolute Necessity through the case of Election Commission of India v. Dr. Subramaniam Swamy (1996) wherein it was held by the court that the doctrine of necessity shall only be invoked in the cases of absolute necessity.

Types of Doctrine of Necessity –

1. PRIVATE NECESSITY – Private Necessity usually refers to situations where a person trespasses or interferes with another person’s property in order to protect or defend himself or his property. This defence is more focused on self-interest rather than benefit of society as large. It provides that a person who is trespassing another’s property can keep doing so only until the emergency is ongoing. However they are still to be held liable for any harm caused to the plaintiff’s property due to the trespass but since he won’t be liable for any punitive or nominal damages therefore this type of necessity is more often considered as a partial defence. Vincent v. Lake Erie Transp. Co (1910) The defendant was present at the dock of the plaintiff to unload cargo from his steamship.[5]

However due to a violent storm erupting, the defendant was unable to leave in time and instead

tied his ship to the dock. Some violent winds erupted that threw the defendant’s ship over the

plaintiff’s dock thus causing substantial damage to the dock for which the court finally held

that even his defence of private necessity was applicable the defendant would still have to pay

compensation for the damage caused to the plaintiff’s dock as it could have been avoided if he

had only untied his ship from the dock which he didn’t as he anticipated that would’ve caused

greater harm to his own ship

2. PUBLIC NECESSITY Public necessity refers to any action taken by the public authorities/officials or private individuals in order to avert a public calamity which has the potential to harm the public at large. The application of this comes in to place when trespass is committed by a person for the greater good of the community rather than focusing on self or personal interest. Also unlike private necessity public is a form of necessity which is considered as an absolute defence instead of a partial one as the trespassers are not required to pay any sort of compensation to the owners of the property and such personnel generally include public employees like police etc.

Surocco v. Geary (1853) In this case the city of San Francisco was hit by a major fire and the plaintiff Sirocco was attempting to retrieve goods from his home while the fire raged nearby, the mayor Geary i.e. the defendant however had no option but to demolish the plaintiff’s building for preventing the fire from spreading further to the nearby buildings for which the plaintiff sued him. However, considering the demolition had to be done in order to prevent the fire from causing much more harm and that the defendant acted in good faith for greater good of the community at large, he was not held liable for paying any of compensation and his act fell under the defence of public necessity

Doctrine of necessity under torts

The definition and application of the necessity doctrine in tort law are identical to those in criminal law. The doctrine is primarily invoked by the defendant in defense against intentional torts like conversion and trespassing to land or chattels under the torts law. This is the only distinction in its application.

Under common law, the defense of necessity grants the state or an individual the right to appropriate or utilize another’s property. That is, an individual is qualified to trespass on another person’s land with the intention of preventing serious harm to themselves, their own land, their belongings, or to the person, land, or belongings of another.

The Latin common law dictum “necessitas inducit privilegium quod jura privata” serves as the foundation for this. This indicates that “a private right causes necessity to induce a privilege.” When there is a clear and reasonable danger of harm to a person or society as a whole, a court will give a trespasser this privilege over damage to their property.

This defense differs from the privilege of “self-defense” in that those who are injured by someone using the necessity privilege are typically innocent of any wrongdoing, in contrast to those who are attempting to defend themselves.

Cope v. Sharpe (No 2) [1912] 1 KB 496 is a case that involves In order to stop the fire from spreading to the neighboring land and causing potential damage, the defendant entered the plaintiff’s land. In this instance, the plaintiff filed a trespass lawsuit against the defendant. However, the court determined that the defendant was not liable for trespassing because he had committed an act of necessity, as his actions were deemed to be reasonably necessary to protect the property from real and immediate danger.

Invoking doctrine of necessity and it’s proof-

The necessity defense is applicable in emergency scenarios where an individual was permitted to act improperly in order to avert greater harm to themselves or any other individual, their personal property, or the community as a whole. To support the necessity defense, it is imperative to demonstrate the existence of the following:

The harm that was inflicted was less than the harm that would have otherwise happened.
The individual had a legitimate belief that his actions were required to avert an impending danger.
There was nothing reasonable to do to prevent the damage.
The individual was not the original source of the threat of harm.

When someone raises the necessity defense, the court has the authority to determine whether or not it applies in the particular case and whether or not the claimant is released from all liability. Invoking this defence becomes very challenging because it becomes very difficult to establish whether or not there was a necessity. Such emergencies frequently occur when other people are not present, making it difficult to demonstrate that breaking the law is necessary in order to save lives.

Because of this, the defense of necessity may only be maintained in extraordinary circumstances where the necessity for it is established.

Liability on the person invoking the defence of necessity

In the law of torts, the defense of necessity can absolve a person from liability for an otherwise wrongful act committed under urgent circumstances to prevent a greater harm. However, the application of the necessity defense doesn’t automatically mean complete immunity from liability. The liability on the person invoking the defense of necessity varies based on the specific circumstances and the nature of the harm caused.

Here’s a breakdown of the liability considerations:

Complete Immunity:

In certain situations where necessity is successfully invoked, the person might be absolved of liability entirely. This often occurs when the harm inflicted was justified by the immediate need to prevent a significantly greater harm.

For instance, if someone breaks into a property to save a person trapped in a life-threatening situation, the action might be excused under the doctrine of necessity, resulting in no liability for the individual’s trespass onto the property.

Limited Liability:

In other cases, while the person invoking necessity might be excused from liability for the specific act committed under urgent circumstances, they could still be held liable for any damages caused.

For instance, if someone causes property damage to prevent a larger disaster, they might not be liable for the initial harm but may still have an obligation to compensate for the damage caused.

Reasonable Action Standard:

Courts often evaluate whether the action taken under necessity was reasonable and proportionate to the harm prevented.

If the action taken exceeds what was reasonably necessary in the situation, the person invoking necessity might still face liability for the excess harm caused.

Burden of Proof:

The burden is typically on the person invoking the defense of necessity to demonstrate that the harm caused was a result of immediate and unavoidable circumstances that required urgent action.

They need to show that their actions were in response to a real and imminent danger, and there were no reasonable alternatives available to avert the harm.

Overall, the application of the necessity defense involves a careful analysis by the courts to weigh the urgency of the situation against the harm caused. While it can provide a legal justification for an otherwise wrongful act, it doesn’t automatically absolve the individual from all liability. Courts aim to strike a balance between the immediate need to avert harm and the accountability for the consequences of the actions taken.

Case Laws on Doctrine of necessity –

Regina v Dudley and Stephens (1884) This landmark judgement was the first and foremost case law responsible for establishing a precedent that stated that the doctrine of necessity cannot be used as a defence to a charge of murder. In the given case four men, while at sea, had been struck by a storm that led up to them being stranded in the middle of the sea far away from any sort of land and resources needed for survival which then eventually led them to resorting to killing the youngest and weakest boy of the group as they assumed his chances of survival would anyway be the lowest and hence, they ended up killing him and surviving on his flesh for the next 4 days until they were rescued. Although the remaining 3 men repeatedly claimed that they did this out of necessity, however in the facts of this case , the court still decided that killing the boy was in fact pure commission of murder and cannibalism and could not be not be considered as a ground for defence of necessity. It must however be pointed out that there death sentences were reduced to life imprisonment. [6]

Baender v Barnett (1921) In the given case, a fire broke out in one of the maximum-security prisons and due to the fear of death, the inmates ended up breaking out of their cells. Although this was both legally and morally wrong, they couldn’t be considered guilty of the crime of escaping jail as the circumstances forced them to do so in order to protect their lives, hence creating a premise for pleading the defence of necessity.

Leigh V Gladstone

In the given case a lady prisoner who was carrying out a hunger strike was forcibly fed despite

her protests. It was held how this could serve as a good defence of necessity against tort of

battery. [7]

Carter V Thomas, 1976

In the abovementioned case a huge fire had started in the plaintiff’s house, due to which the

defendant in the adjoining house committed trespass in order to help and stop the fire from

spreading even further and his actions were carried out in good faith. If one reasonably looks

at the facts, when the plaintiff charged him for trespass using necessity as a defence should’ve

been viable, yet he was still held guilty of trespass as the firemen had already reached to set

out the fire and it was held that his interference was not required. [8]

Conclusion

In conclusion, the legal principles of “volenti non-fit injuria” and “necessity” play crucial roles in shaping the landscape of liability and responsibility within the legal framework. “Volenti non-fit injuria,” often translated as “to one who is willing, no harm is done,” underscores the importance of consent in certain situations. When individuals willingly expose themselves to known risks or dangers and consent to such circumstances, they may be precluded from seeking legal remedies for resulting injuries. This principle acknowledges the autonomy and freedom of individuals to make choices, even if those choices involve inherent risks.

On the other hand, the concept of “necessity” recognizes that certain actions, which would otherwise be considered wrongful or tortious, may be excused under specific circumstances where there is a genuine necessity to prevent greater harm. Necessity as a defense implies that individuals may be justified in causing harm or infringing on the rights of others if it is done to avert a more significant danger or emergency.

Both these principles highlight the dynamic nature of legal reasoning and the need for a nuanced approach to justice. While “volenti non-fit injuria” emphasizes personal autonomy and the right to assume risks, “necessity” reflects a broader societal interest in prioritizing the greater good over individual rights in exceptional situations.

In the intricate balance between individual freedom and societal welfare, these principles contribute to the flexibility and adaptability of legal systems. However, their application requires careful consideration of specific facts and circumstances to ensure that justice is served equitably. The interplay of “volenti non-fit injuria” and “necessity” reflects the evolving nature of legal thought and the ongoing quest to strike a fair and reasonable balance between competing interests within the realm of civil liability.

Reference

[1] Dann v. Hamilton (1939) 1 K.B. 509

[2] Hall v. Brooklands Auto Racing Club (1932) All E.R. 221

[3] Smith v. Baker & sons, (1891) AC 325

[4] Haynes v. Harwood (1935), 1 KB 146

[5] https://dejurenexus.com/wp-content/uploads/

[6] Regina v Dudley and Stephens (1884) 14 QBD 273 DC

[7] Baender v Barnett, 255 US 224 (1921)

[8] CARTER v. THOMAS 1935 OK 653 46 P.2d 460 172 Okla. 558

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