VOLENTI NON-FIT INJURIA AND NECESSITY IN LAW OF TORTS

This article is written by Krishna Rathore of 1^st Semester of Amity Law College, at intern under Legal Vidhiya

ABSTRACT

Through this research paper, I will share my thoughts on the fascinating subject of “defence of Volenti non fit Injuria and Necessity” as it relates to tort law, including the case laws that gave rise to it, its effects on both the accused and the aggrieved parties, how its cause-and-effect mechanism is applied to various everyday legal scenarios, and much more.

The Latin word “tortum,” which meaning “to twist,” is where the term “tort” originates. Hence, a tort is an action that is twisted, crooked, or unlawful rather than straight or legal.l’’[1]

What is tort according to Salmond? It is a civil wrong for which remedy is a common law action for unliquidated damages and which is not exclusively the breach of a contract or the breach of trust or other merely equitable obligations’’[2].

A General defense is one that can be used to stop an action for a variety of wrongs. For instance, a general defense of consent can be used to stop an action for trespassing, defamation, false imprisonment, or other wrongs. 

Specific defences have been discussed along with the particular tort to which they relate.[3]

“Volenti non-fir Injuria” is a defence that exists. (WITH CONSENT)

KEY WORDS: Tortum, Civil Wrong, Unliquidated Damages, General Defence, Specific Defence, Volenti non-fit Injuria.

INTRODUCTION   

In tort if all the conditions necessary for a certain tort are met and the plaintiff files a lawsuit against the defendant, the defendant will be held accountable for the same tort. However there are some defences available to the defendant. These defences can be separated into two categories: general defense and specific defence.

The list of general defenses that the defendant may raise in order to deny tortious behavior.

1. Volenti non-fit Injuria, (WITH CONSENT)
2. Plaintiff the wrongdoer
3. Inevitable accident
4. Act of God
5. Private defence
6. Mistake
7. Necessity
8. Statutory Authority

VOLENTI NON-FIT INJURIA  (WITH CONSENT)

When a person consents to the infliction of some harm upon himself, he has no remedy for that in tort.[4] According to the theory of Volenti non-fit Injuria, “no harm is done to a willing person.”[5]

No one can enforce a right which he has willingly waived or abandoned agreement to suffer the injury, whether it is express or implied. If the plaintiff voluntarily agrees to endure any harm, he is not permitted to complain for that and his consent acts as a good defence against him.

ILLUSTRATION

Since A invited B to supper, A cannot legally sue B for trespassing. Since A has chosen to cause itself some harm. It is important to remember, though, that an act that causes injury cannot exceed the level of consent. Football players implicitly agree to the usual course of injury, but this does not exclude them from suing other players for intentional injuries.[6]

A person who willingly consents to the publication of anything that disparages her cannot file a defamation lawsuit. A right that a person freely gives up or waives cannot be enforced by another man. A person may give explicit or implicit consent to give up their right. The defendants must demonstrate that the plaintiff was fully aware of the risk and its magnitude in order for the defense to be admissible. It is not sufficient for the plaintiff to just know about the risk; he must also consent to being harmed.[7]

ELEMENTS OF VOLENTI NON-FIT INJURIA  

Two requirements must be met for maxim Volenti non-fit Injuria to be applicable.

1. The plaintiff had knowledge of risk.
2. He knowing the same, agreed to suffer the harm.[8]

Therefore, a defendant is released from culpability whenever the plaintiff is aware of the likelihood of harm that is likely to result from a conduct and nevertheless chooses to carry out that act, agreeing to suffer the injury in the process.

CONSENT MUST BE FREE: The plaintiff’s free assent to the defendant’s act must be demonstrated in order for the defense to be admissible. In cases where the plaintiff’s permission was obtained through deception, coercion, or error, it is not a strong defense.

Lakshmi Rajan V Malar Hospital LTD[9]: Lakshmi Rajan, the complainant in this instance, complained of a bothersome lump in her breast. Although the tumor had nothing to do with the uterus, her uterus was removed during surgery without her knowledge or consent. The defendant attempted to use the Volenti non-fit Injuria defense, but it was denied. The court determined that the defendants were accountable. The patient’s permission for the aforementioned procedure does not equate to the uterus being removed, the court said.

CONSENT MUST NOT BE TAKEN BY FRAUD: Consent obtained by fraud is not a real and that does not serve as a good defence’’[10]

R v Williams[11]: The music teacher who was implicated in this instance was found guilty of sexual assault. He convinced a sixteen-year-old pupil that his deed would make her voice better, leading to their sexual encounter. The victim gave her assent because she thought it would help her vocal cords, but she didn’t understand the true nature of the act. The accused was found guilty of rape by the court, and the Volenti non-fit Injuria defense was rejected because the consent was obtained through deception.

CONSENT MUST NOT BE TAKEN UNDER COMPULSION

While someone gives their consent while they are not free to choose, that consent is not free. It is circumstances such as taking on a dangerous task or losing a job. In these situations, the individual lacks free will and must submit to danger.

Usually, the circumstance emerges in a master-servant dynamic. When a man gives his permission under duress, it cannot be considered that he is acting freely. Therefore, when a servant is forced to perform labor even though he does not want to, Volenti non fit Injuria does not apply.

A key ingredient is a compulsion. One ought to be unwilling to do the assignment. Still, he had no choice but to comply. A worker will be entitled to the defense of consent if they voluntarily take a dangerous measure.

 Imperial Chemical Industries Ltd V Shatwell[12] case, it was decided that the defense of Volenti no fit Injuria could be successfully used if an employee chooses to perform a hazardous work method of his own free will, rather than under coercion from his employer.

MERE KNOWLEGDE DOES NOT IMPLY ASSENT [13]

However, this defence is not applicable if the risk is only known to you. It is called Scienti non fit Injuria, and it implies that knowing about the risk does not equate to consent. Therefore, knowledge alone does not fully satisfy the requirements for the application of Volenti non fit Injuria.

ILLUSTRATION: Even if the organizers took all the required precautions, A still chooses to go bungee jumping even though he knows it could hurt him. As a result, he is hurt. Here, A is unable to sue the organizers for damages as he chose to participate in bungee jumping after fully understanding the risks and accepting the possibility of injury.[14]

Smith v Baker (1891)[15] AC 325: The plaintiff worked for the defendant, and at his former workplace, there was a crane that lifted rocks above their heads. Additionally, the plaintiff had complained about it to the defendant. The plaintiff filed a lawsuit against the defendant for damages after he was hurt one day by these rocks falling on him. The plaintiff had agreed to the risk of the employment but not to the defendant’s negligence, so it was decided that the defendant was responsible and had to compensate the plaintiff for her losses

Bowater V Rowley Regis Corporation[16]: The plaintiff a cart driver was requested to operate a horse by the defendant’s foreman. Both the plaintiff and the defendant were aware that horses can bolt. Despite his initial protests, the plaintiff eventually complied with the directive. The plaintiff sustained injuries when the horse escaped. The defense will not hold because it was decided that consent was given under duress.

THE DEFENDANT MUST NOT BE NEGLIGENT

In most cases, the assumption is that the defendant won’t be careless when the plaintiff agrees to take some risks. The notion of Volenti non-fit Injuria does not apply if the defendant exhibits any negligence, and he may be held accountable for the act. For instance, since the patient did not consent to the surgeon’s negligence, the surgeon may be held accountable if the patient consents to an operation and the procedure fails due to the surgeon’s carelessness.

Slater V Clay Cross Co. Ltd[17]: In this instance, the plaintiff was crossing a small tunnel on a defendant-owned railroad track when he was struck and hurt by a train. The defendants were aware that the tunnel was typically utilized by the general public, which is why the firm had given drivers instructions to slow down and whistle as they entered the tunnel. The driver’s failure to follow directions and consequent negligence was the cause of the accident. The court ruled that the defendants could not raise the defense of Volenti non-fit Injuria because they were found to be culpable.

 LIMITATIONS ON THE SCOPE OF THEDOCTRINE[18]

1. RESCUE CASES
2. ILLEGAL ACT
3. BREACH OF STATUTORY DUTY

RESCUE CASE

Rescue situations are an exception to the rule that Volenti non fit Injuria applies. The defense of Volenti non fit Injuria cannot apply when the plaintiff willingly assumes the risk of saving someone from an impending danger brought about by the defendant’s wrongdoing.

Haynes v Harwood: In this instance, the defendant’s servant left two horses unsupervised on a public road. Some kids saw the animals and hurled a stone at them, which caused the horses to bolt and endanger women and other persons using the road.

A police constable inside the police station witnessed the entire incident and came to protect the civilians from the fleeing horses, although he suffered serious injuries in the process. Since this is a rescue situation and the Volenti non fit Injuria doctrine does not apply in rescue circumstances, it applies in this instance. But if someone willingly tries to stop a horse which creates no danger will not get the remedy 

Hyett V Great Western Railway Co[19]. In this instance, the defendants’ negligence caused a fire that the plaintiff had to put out while rescuing their cars. Given that the plaintiff’s actions appeared reasonable, the defendant was found accountable in this instance.

ILLEGAL ACT

Any illegal act cannot be made legitimate by consent. One of the main exceptions to the maxim Volenti non-fit Injuria is this one. Even if all other requirements are met to the letter, the defense of Volenti non-fit Injuria is still inapplicable.

BREACH OF STATUTORY AUTHORITY  

This approach does not apply where an action is based on a violation of a statutory duty. The reason for this restriction was made explicit in Wheeler v. New Merton Boards, Ltd[20].20.at this instance, the defendants placed a hazardous machine for use by workers at a workplace. The Factory and Workshop Act of 1901 states that the machine must be walled in and maintained. Owing to its poor state, the plaintiff’s workman suffered an injury while performing his job duties. For the same, the plaintiff sued the defendants. The court decided that when an employer violates a statutory duty, the maxim Volenti non fit Injuria does not apply as a defense to a personal injury claim against the employer.

DIFFRENCITATED BETWEEN VOLENTI NON FIT INJURIA AND CONTRIBUTORY NEGLIGENCE

While Volenti non fit Injuria is a complete defense, the Law Reform (Contributory Negligence) Act, 1945 introduced the defense of contributory negligence. Contributory negligence bases the defendant’s liability on their share of the fault in the incident. Unlike in the instance of Volenti non fit Injuria, both the plaintiff and the defendant are culpable in the contributory negligence defense.[21]

NECESSITY

Even when harm is purposefully done, an act that causes damage that is carried out of need to stop a bigger evil is not actionable. One should distinguish between need and personal defense. In a private defense, the plaintiff is the one who is at fault, but in a necessity, harm is inflicted upon an innocent party[22]

The defense of necessity acknowledges that there may be circumstances in which a person must be permitted to disobey the law in order to respond because of their extreme urgency. Salus populi supeme lex, or “the welfare of the people is the supreme law,” is the foundation upon which necessity rests. A defendant claiming necessity will usually contend that he committed the offense to prevent a larger harm brought about by natural circumstances. Need as a defense (justified or encouraged behavior in the event that the offender is judged not guilty). A defendant may assert the affirmative defense of necessity to defend themselves against the torts of trespassing onto property, trespassing onto chattels, and conversion

MEANING AND DEFINITION

‘Necessity is defined under section 81 of the Indian penal act 1860’’  

Act with the potential to do harm, but with the intention of preventing more harm. If anything is done in good faith to prevent or avoid further injury to people or property and without any criminal motive, it is not considered an offense even if it is done knowing that it is likely to cause harm.[23]”

TYPES OF NECESSITY

PRIVATE NECESSITY: Self-interest drives private requirement rather than the needs of the community as a whole. When the defendant seeks to safeguard his own interests, it occurs. Unlike in the case of public need, it is not a complete defense. This is an example that explains private necessity. If the defendant went onto his neighbor’s property without permission in an effort to stop the fire from spreading to his own property. “Necessitas inducit privilegium quod jura private,” or “Necessity induces a privilege because of a private right,” is the principle that is applied to private necessity. This adage makes it apparent that private defense is more of a privilege that many people are able to enjoy. Vincent v. Lake Erie Transp. Co[24]. Was the first private defense case.

PUBLIC NECESSITY: Any action taken by public officials or authorities or by private citizens to prevent a public disaster that could have harmed the public as a whole is considered public necessity. This is used in cases where someone trespasses in order to safeguard a larger group.

Because public necessity is an absolute defense, those who have trespassed are exempt from having to reimburse the property owner for their losses. Public servants such as police, firefighters, and army personnel typically assert the necessity for the public good.

Surocco v Geary, San Francisco[25]: As the fire raged nearby, the plaintiff was trying to remove items from his home. In order to halt the plaintiff’s home fire and stop it from spreading to other structures, the defendant (Mayor) gave the go-ahead for it to be demolished. In his lawsuit, the plaintiff asserted that if his house hadn’t been bombed, he may have gotten back more of his belongings. The court decided that the right to necessity is a function of natural law and is unaffected by society or the state. Individual liberties have to yield to the supreme law of imminent necessity. Here, extinguishing the Plaintiff’s residence was required to quell the flames.

IMPORTANT CASE LAWS

Cope v Sharpe[26]:  In order to stop the fire from spreading to the next land, over which the defendant’s master had the right to shoot, the defendant entered the plaintiff’s property. The defendant was found not responsible because the action was deemed to be reasonably reasonable to protect the game from an actual or immediate threat.

R. v Bourne[27]: In this instance, a young girl was sexually assaulted, leading to her pregnancy. With her parents’ permission, the defendant, a gynecologist, performed an abortion on the victim because he thought a rape victim might not survive if she were allowed to give birth.

It was unclear if the defendant had committed the crime of forging a miscarriage. The court determined that the defendant had used his professional judgment and had acted in good faith. The girl’s physical and emotional well-being would have suffered as a result of the pregnancy’s potential outcome.

The court determined that physicians have a responsibility to proceed with an operation if, on reasonable grounds and with sufficient awareness of the implications, they are not required to wait until the patient is in immediate danger of death.

Because the doctor performed the illegal act in a circumstance where the pregnant girl’s life or health was deemed to be in danger, the court found that the doctor was not guilty despite having performed the illegal act in order to save the girl’s life.

CONCLUSION

One of the defenses under tort law is called Volenti non fit Injuria, which absolves the perpetrator of liability when the victim of the wrong gives his or her consent to the commission of the wrong; however, this consent must be free in order for the defence to be successfully applied in a particular case.

Therefore, in order to grant this defense, courts must make sure that all of its requirements are met and that the act in question does not fall within any of its restrictions.

According to the notion of necessity, a one who does an act that results in injury but does it in good faith in an effort to prevent harm is not held accountable. This is true as long as the harm resulting from an act performed out of necessity is not deliberate. Furthermore, it need to be limited to situations where the goal is to stop more serious injury from occurring in the event that the defendant is not at fault for the minor harm.

REFERENCES

• Given by Salmond R.K. Bangia page no 4 2016
• Given by R.K. Bangia page no 28 2016 edition
• R.K. Bangia page no 28 2016 Edition
• https://articles.manupatra.com/article-details/Volenti-Non-Fit-Injuria-An-Analysi
• https://articles.manupatra.com/article-detail
• https://articles.manupatra.com/index.html
• R.K Bangia page no 33 2016 Edition
• Lakshmi Rajan v Malar Hospital (1998) CPJ 586 (Tamil Nadu SCDRC)
• R.K. Bangia page no 31 2016 edition
• R v Williams 1923 1 KB 340 https://ipsaloquitur.com/criminal-law/cases/r-v-williams-owen-richard
• (1965) AC 656 https://www.casemine.com/judgement/uk/5a8ff8c960d03e7f57ecd69e
• R.K. Bangia page no 32 EDITION 2016
• https://blog.ipleaders.in/volenti-non-fit-injuria/ WRITTEN BY ADARSH SINGH THAKUR
• 1891 AC 325 https://www.barelaw.in/case-brief-of-smith-v-charles-baker-and/
• (1944) K.B 476 https://ipsaloquitur.com/tort-law/cases/bowater-v-rowley-regis/#google_vignette
• (1956) 2 ALL E.R. 625 https://swarb.co.uk/slater-v-clay-cross-co-ltd-1956/
• R.K. Bangia page no 36 EDITION 2016
• (1948) 1 KB 345 https://chambers.com/articles/can-an-injured-rescuer-su
• Wheeler v New Merton Boards (1933) 2 KB 669     
• https://www.legalserviceindia.com/lega
• R.K. Bangia page no 47 EDITION 2016
• IPC KD GOUR SECTION 81
• (1910) https://law.justia.com/cases/minnesota
• Surocco v Geary Francisco 3 Cal 69 (1853) https://www.casebriefs.com/blog/law/evidence
• (1891) 1 KB 496 https://legalvidhiya.com/cope-vs-sharpe
• (1938) 3 ALL ER 615

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[1] R.K. Bangia 3 Allahabad law Agency 2016

[2] Given by Salmond R.K. Bangia page no 4 2016

[3] Given by R.K. Bangia page no 28 2016 edition

[4] R.K. Bangia  page no 28 2016 Edition

[5] https://articles.manupatra.com/article-details/Volenti-Non-Fit-Injuria-An-Analysi

[6] https://articles.manupatra.com/article-details

[7] https://articles.manupatra.com/index.html

[8] R.K Bangia  page no 33 2016 Edition

[9] Lakshmi Rajan v Malar Hospital (1998) CPJ 586 (Tamil Nadu SCDRC)

[10] R.K. Bangia page no  31 2016 edition

[11] R v Williams 1923  1 KB 340 https://ipsaloquitur.com/criminal-law/cases/r-v-williams-owen-richard/

[12] (1965) AC 656 https://www.casemine.com/judgement/uk/5a8ff8c960d03e7f57ecd69e

[13] R.K. Bangia page no 32 EDITION 2016

[14] https://blog.ipleaders.in/volenti-non-fit-injuria/ WRITTEN BY ADARSH SINGH THAKUR

[15] 1891 AC 325 https://www.barelaw.in/case-brief-of-smith-v-charles-baker-and/

[16](1944) K.B 476 https://ipsaloquitur.com/tort-law/cases/bowater-v-rowley-regis/#google_vignette

[17] (1956) 2 ALL E.R. 625  https://swarb.co.uk/slater-v-clay-cross-co-ltd-1956/

[18] R.K. Bangia  page no 36 EDITION 2016

[19] (1948) 1 KB 345 https://chambers.com/articles/can-an-injured-rescuer-su

[20] Wheeler v New Merton Boards (1933) 2 KB 669         

[21] https://www.legalserviceindia.com/legal

[22] R.K. Bangia page no 47 EDITION 2016

[23]  IPC KD GOUR SECTION 81

[24] (1910) https://law.justia.com/cases/minnesota

[25] Surocco v Geary Francisco  3 Cal 69  (1853) https://www.casebriefs.com/blog/law/evidence

[26] ( 1891) 1 KB 496 https://legalvidhiya.com/cope-vs-sharpe/

[27] (1938) 3 ALL ER  615

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