This article is written by Piyush Gupta of 1st Semester of the Institute of Law, Nirma University, Ahmedabad Gujarat, an intern under Legal Vidhiya.
The legal theories of Necessity and Volenti Non-Fit Injuria “to one who consents, no injury is done”—provide protection from culpability for activities that would otherwise be deemed unlawful and constitute a tort. This article examines these doctrines’ theoretical foundations, real-world applications, interrelationships, and limitations. Based on relevant case law and legal literature, we shall conduct a systematic study to determine the circumstances in which Volenti non-fit injuria and Necessity can be properly claimed. In the end, this article seeks to offer a thorough grasp of these legal ideas and their significance in determining the bounds of proper conduct.
Tort, Consent, Volenti Non-Fit Injuria, Necessity, General Defence
Tort law is to address complaints about unjustified harm or harm done to an individual’s legally protected interests. This could include bodily harm, financial loss, or even reputational ruin. The plaintiff must show the defendant owed them a duty of care, that the obligation was broken, that there was harm, and there was causation to prove a tortious claim, suppose any person commits any wrongful act that causes injury to another person, he is held liable and has to pay damages or provide some other remedy which the Court determines, to the victim of such an act.
But getting compensation through the legal system isn’t always straightforward. Defences come into play, protecting from culpability even in cases when the elements of a tort seem to be satisfied. The principle of volenti non-fit injuria, which translates to “to a willing person, no injury is done,” is one such defence. This maxim acknowledges that a defendant’s consent to a potentially damaging act does not make their actions unlawful. Imagine a boxer who voluntarily and knowingly consents to the inherent danger of getting hurt. Although the harm may appear tortious, the fighter’s voluntary and informed consent renders the injury not subject to legal action.
However, consent is not always a clear-cut situation. Questions about the legitimacy of one’s “volenti” can arise owing to coercion, undue influence, or even a lack of complete comprehension of the risks involved. Furthermore, the distinction between permissible risk and illegal pain infliction becomes hazy when the harm done exceeds what a reasonable person could consent to.
Enter the Necessity defence. Where Volenti struggles with the complexities of consent, Necessity faces the brutal facts of conflicting risks. According to the maxim, there are circumstances in which it is acceptable to inflict a smaller injury to prevent a larger one, even if doing so technically violates the rights of others. Consider a surgeon who performs an unconsented life-saving operation on an unconscious patient; the harm caused by the procedure is justified because the alternative is death, which would cause even greater harm.
This article’s main goal is to examine both defences. We shall examine the fundamental ideas of Volenti non-fit Injuria and Necessity, examine their drawbacks and complexity, and examine their practical applications. We hope to clarify these intriguing—and frequently confusing—defences through interesting case studies and legal conversations of tort liability.
Volenti Non-Fit Injuria
As mentioned above the doctrine of Volenti non-fit Injuria means “to a willing person, no injury is done. Put simply A person cannot sue someone for damages if they have permission to conduct something that causes them harm because they gave their consent voluntarily. This holds even if the harm was inflicted by someone else. A defence known as volenti non-fit injuria—which roughly translates to mean that no harm arises to a willing party—is the plaintiff’s consent.
For example: Since A invited B to dinner, A cannot lawfully file a trespassing lawsuit against B. Given that A has decided to hurt itself. However, it’s crucial to keep in mind that an action that results in harm cannot go beyond the level of consent. Although it is implicitly accepted that injuries will typically occur, football players are nonetheless able to sue other players for deliberate harm. An action of defamation cannot be brought by a person who voluntarily agrees to the publication of a matter defamatory of himself.
The defence of Volenti non-fit injuria was successfully pleaded in the case Padmavati v Dugganik. In this case, the driver used a jeep to fill up with gas as two strangers rode along for the ride. Suddenly, a bolt holding the right front wheel fell loose, throwing two people out of the vehicle and severely injuring them. As a result of the tragedy, one of them passed away. The driver and the master were found not at fault by the court for two reasons: (1) it was an obvious accident. (2), the strangers voluntarily entered into a jeep due to which the defence of Volenti non-fit injuria can be successfully pleaded.
Element of the Volenti Non-Fit Injuria
For the Volenti non-fit injuria defence to be successful, it is necessary to substantiate the following crucial elements:
- The Plaintiff Was Aware of the Risk:
The plaintiff’s knowledge of the possible harm connected to the situation or behaviour is fundamental to Volenti. This information needs to be precise and all-inclusive, covering the kind, scope, and probability of the damage. For instance, a boxer must be conscious of the possibility of physical harm when competing, and a patient receiving surgery must be aware of any possible consequences.
- The Plaintiff Voluntarily Consented to the Risk:
Genuine, free consent must be provided; it cannot be acquired by force, undue influence, or incapacity. The plaintiff must be able to evaluate the risks and make a rational choice.
For example, A has a heart problem and he goes to a hospital for surgery. There he is informed by the surgeons that the required surgery is very complicated and there is a chance of the surgery failing which can cause his death. If A gives his consent to have the surgery and the surgeon despite taking all reasonable care in doing the surgery is not able to save A, then the surgeon cannot be held liable because A had given his consent for it and this consent was given freely.
- Proportionality of the Harm:
The plaintiff’s consent to the risk had to directly result in the harm experienced. This does not include effects that were not anticipated or unrelated to the risk that was accepted. Imagine considering a competitor in a martial arts tournament who is struck with a weapon on purpose. Given the severity of the damage, the opponent’s defence is probably ineffective.
- The defendant party must not act carelessly.
It is commonly accepted that when the plaintiff assumes some risk, the defendant won’t act carelessly. If the defendant shows any negligence, the idea of Volenti non-fit injuria does not apply, and he may still be prosecuted. For example, if a patient gives permission for an operation and the surgeon’s carelessness results in an unsuccessful outcome, the surgeon can be held liable because the patient did not consent to the doctor’s misconduct.
- Consent is not implied by mere knowledge.
Two crucial elements must be established by the defendants for the Volenti non-fit Injuria doctrine to be used correctly. That is to say, even when the plaintiff knew there was a risk, they nonetheless allowed the injury to happen. If the plaintiff did not provide his assent despite only being aware of the risk, the Volenti non-fit Injuria defence is not available. In other words, simply while the plaintiff knew about the harm, it does not mean that they have to accept it.
It is better explained in the Bowaterwhere the plaintiff, a cart driver, was encouraged to drive a horse by the defendants despite their knowledge that the animal would most likely run away. The plaintiff objected and refused to drive the horse, but in the end, the order was followed and the horse was brought out. This caused a horse to bolt, hurting the plaintiff. The court found that the Volenti non-fit Injuria theory did not apply in this instance and that the plaintiff was entitled to the full sum of compensation.
Limitations on the Use of the Volenti Non-Fit Injuria
- Rescues Cases
This claim will not hold up and the defendant will be held accountable if the plaintiff has injuries as a result of him performing an act that he knows is likely to hurt him but is done to save someone else.
In the Haynes v. Harwood case, this restriction was made quite clear. This case involves a two-horse van that was left unattended in a street by the defendant’s servant. The horses then bolted as a teenage lad hurled a stone at them, putting women and children in grave danger as they travelled. When he observed the horses, a police constable on duty at a nearby police station hurried to stop them and succeeded in doing so. However, he sustained severe personal injuries in the process. The defendant took the defence of Volenti non-fit injuria but was not accepted as being the rescue case.
- Illegal Acts
In situations when consent is granted for an illegal act, this defence is rendered ineffective since, even if all of its requirements are met, the responsibility cannot be avoided.
For Example: If A and B decide to engage in a fight with sharp swords, which is against the law, and A gets severely hurt as a result, B cannot claim that A permitted him to do this because the act was against the law and B would be held accountable.
- Breach of Statutory Duty
This approach does not apply where an action is based on a violation of a statutory duty.
This limitation was clearly explained in Wheeler v. New Merton Boards ltd. The defendants in this case installed a potentially dangerous machine in a manufacturing facility for the use of employees. It is required by the Factory and Workshop Act of 1901 that the machine be kept up to date and enclosed. The plaintiff’s worker was injured while carrying out his job duties because of its bad status. The plaintiff sued the defendants for the same. The adage volenti non-fit injuria does not apply as a defence to a personal injury lawsuit against an employer when the employer violates a statutory duty, the court held.
In terms of tort law, the theory of Volenti non-fit injuria takes on a crucial role in the general defence. By demonstrating that the plaintiff gave their voluntary permission, defendants can use this theory to avoid being held liable. Nonetheless, a few prerequisites must be met for the doctrine to be successfully applied.
Necessity as a Defence in Tort
Imagine being stranded in a burning building with flames blocking the only way out. You break a window out of panic and climb out, damaging neighbouring property. Could that damage be attributed to you? Here is where tort law’s alluring defence of necessity comes into play.
Necessity arises in situations where a defendant commits a wrongful act to avoid greater harm. Consider a surgeon who, knowing that it is the only way to preserve the patient’s life, operates on an unconscious patient in an emergency without the patient’s consent. or a car that swerves onto the sidewalk to avoid running over a youngster who is crossing the roadway and inflicting only minor damage to property. These are only a few situations in which the defendants may be able to escape accountability for their acts by claiming the defence of necessity.
The core principle of necessity is that, under certain extreme circumstances, it is acceptable to cause less harm to prevent greater damage. But this reasoning is not conclusive. For the defendant to effectively use necessity as a defence, they must show:
Imminent and Grave Threat: The threatened harm must pose a real and immediate danger, which must be both urgent and serious. The mere potential for harm in the future is insufficient.
No Other Course of Action: Before doing the harmful action, the defendant was required to have looked for and exhausted all safe, reasonable alternatives. This calls for carefully analysing the circumstances and a sincere attempt to choose a less dangerous course of action.
When someone raises the necessity defence, 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 justification becomes highly challenging since 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 to save lives.
Type of Necessity
- Private Necessity
Private necessity is the term used when someone enters or interferes with another person’s property to protect themselves or their possessions. For as long as the emergency persists, one usually has the right to continue trespassing or utilizing the person’s property. The private defence is only partial if the defendant violates the law and raises the defence of private necessity. He is still liable for any damage his trespassing causes to the plaintiff’s property.
Example- Dimple was strolling alongside a public highway when she crossed over onto Lovely’s farmland, which was close by, so order to avoid causing any extra harm to the field when the highway was closed due to snow.Lovely sued Dimple for trespass but Dimple can argue that she has a right to way based on necessity because the highway was impassable.
- Public Necessity
Public necessity refers to any action made by private persons or public officials to avert a public disaster that could have caused harm to the general public. When someone trespasses to protect a greater group, this is employed.
People who have trespassed are not required to pay the property owner back for their losses because public necessity is an absolute defence. People who work for the government, such as police, firemen, and army people, usually say that something is necessary for the general welfare.
Example- To remove the rioters who were injuring people and causing them other difficulties, the Russian Army enters a building owned by M/s Intel Enterprises. The troops made some structural damage to the building while driving out the rioters. The owner of M/s Intel Enterprises sued the Russian government for building damage and demanded compensation; however, the Russian government acted to safeguard the public and is therefore not obligated to make any payments.
It is vitally important that necessity exists under the Law of Torts as a defence. Many innocent people would be held accountable for a wrong they were forced into and were unable to escape if there were no such defences. The law would be a straightforward set of guidelines that must be obeyed if the necessity principle were disregarded. However, the goal of defence is defeated if such a course of action is taken. “Defences like Necessity, reaffirm the primary function of courts of law, to administer justice in a particular case”
- Volenti Non-Fit Injuria, iPleaders, https://blog.ipleaders.in/volenti-non-fit-injuria/#:~:text=In%20the%20law%20of%20torts,%20if%20any%20person%20commits%20any%20wrongful%20act%20which%20causes%20injury%20to%20another%20person,%20he%20is%20held%20liable%20and%20has%20to%20pay%20damages%20or%20provide%20some%20other%20remedy%20which%20the%20Court%20determines,%20to%20the%20victim%20of%20such%20an%20act (last visited Jan. 19, 2024).
- volenti non-fit injuria, LII / Legal Information Institute, https://www.law.cornell.edu/wex/volenti_non_fit_injuria#:~:text=Definition%20from%20Nolo’s%20Plain-English,sue%20for%20a%20ny%20resulting%20injuries. (last visited Jan. 19, 2024).
- Chapman v. Lord Ellessmere, (1932) All E.R. 221
- Padmavati v Dugganika, MANU/KA/0061/1974.
- Articles â Manupatra, Articles â Manupatra, https://articles.manupatra.com/article-details/Volenti-Non-Fit-Injuria-An-Analysi (last visited Jan. 19, 2024).
- Bowater V. Rowley Regis Corporation, (1944) K.B. 476
- (1935) 1 K.B. 146
- (1933) 2 KB 297
- Necessity as a Defence in Tort, iPleaders, https://blog.ipleaders.in/necessity-a-defence-in-tort/ (last visited Jan. 19, 2024).
- Ratanlal & Dhirajlal: Law of Torts (PB), 28th ed
- Jerome E. Bickenbach, ‘The Defence of Necessity’ (1983) < http://www.jstor.com/stable/40231302> Accessed 18 January 2024.
 Volenti Non Fit Injuria, iPleaders, https://blog.ipleaders.in/volenti-non-fit-injuria/#:~:text=In%20the%20law%20of%20torts,%20if%20any%20person%20commits%20any%20wrongful%20act%20which%20causes%20injury%20to%20another%20person,%20he%20is%20held%20liable%20and%20has%20to%20pay%20damages%20or%20provide%20some%20other%20remedy%20which%20the%20Court%20determines,%20to%20the%20victim%20of%20such%20an%20act (last visited Jan. 19, 2024).
 volenti non-fit injuria, LII / Legal Information Institute, https://www.law.cornell.edu/wex/volenti_non_fit_injuria#:~:text=Definition%20from%20Nolo’s%20Plain-English,sue%20for%20a%20ny%20resulting%20injuries. (last visited Jan. 19, 2024).
 Chapman v. Lord Ellessmere, (1932) All E.R. 221
 Padmavati v Dugganika, MANU/KA/0061/1974.
 Articles â Manupatra, Articles â Manupatra, https://articles.manupatra.com/article-details/Volenti-Non-Fit-Injuria-An-Analysi (last visited Jan. 19, 2024).
 Bowater V. Rowley Regis Corporation, (1944) K.B. 476
 (1935) 1 K.B. 146
 Articles â Manupatra, Articles â Manupatra, https://articles.manupatra.com/article-details/Volenti-Non-Fit-Injuria-An-Analysi#:~:text=In%20this%20case,%20the%20defendant’s,as%20being%20the%20rescue%20case. (last visited Jan. 19, 2024).
 (1933) 2 KB 297
 Necessity as a Defence in Tort, iPleaders, https://blog.ipleaders.in/necessity-a-defence-in-tort/ (last visited Jan. 19, 2024).
 Jerome E. Bickenbach, ‘The Defence of Necessity’ (1983) < http://www.jstor.com/stable/40231302> Accessed 18 January 2024.
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