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Legal Maxim In Tort

In the law of tort, if a person does a wrongful act which causes injury to another person, he is held liable and has to pay damages or provide some other remedy. But in some cases if a person suffers some loss due to the act of another person, he cannot claim damages from that person because of the operation of the defense of the tort.

What Is Volanti Non-Fit Injuria?

In the law of tort, every person has a duty to act with reasonable care so as to avoid any damage which may be caused by his failure to exercise such care. This is the general rule in tort law but there are some exceptions which are allowed in these cases and these are called defense to tort.

Volanti non-fit injuria is one such defense available to the defendant. If a person consents to the doing of an act by which he is injured, he cannot claim any damages from that person, even though the injury may have been caused by that person, because the act was one for which He willingly consented.

This expression is applied to those acts which are intentionally or purposely done, which can be called painful in other ways, such as - suffering in boxing or operation. Pulling out a person's teeth without asking him will be an attack on him, but pulling out teeth after asking will be considered as an act taken with consent.

R vs Williams

The appellant in this suit was a music teacher of a 16 year old girl. The teacher had sexual intercourse with the 16 year old girl on the pretext that he was working to improve her voice. The girl did not know that he was going to rape her, otherwise she would not have given consent for him; because she did not understand the nature of the act. The court held the music teacher guilty of rape.

Essential Elements of Volanti Non-fit Injuria:

There are 2 essential elements in this defense:

  1. The plaintiff has knowledge of the risk
  2. The plaintiff has voluntarily agreed to bear the loss with knowledge of the risk.

Thus, whenever the plaintiff is aware of the possibility of damage which is likely to be caused by an act and when he accepts to do that act and therefore agrees to cause the injury, the defendant has becomes free from liability.

But mere knowledge about the risk is not sufficient to invoke this defence, this is known as scienti non fit injuria, which means mere knowledge means consent to the risk. Thus having knowledge is a partial fulfillment of the condition of volenti non fit injuria.

Plaintiff's consent must be free

In volenti non fit injuria the consent of the plaintiff is very important because only when he has voluntarily given his consent to an act, the defendant can take up this defence. When a litigant gives his consent to an act, such consent must be free from any coercion, fraud or any other means by which free consent is likely to be affected.

Padmavati v/s Dugganika

In this case, the plaintiff had sought a lift in the jeep of the defendants and while traveling in it, a wheel bolt of the jeep fell off, resulting in the accident of the jeep and the death of one of the plaintiffs. In the case, the Court held that the defense of volunti non fit injuria would apply and thus the defendants were not liable because the plaintiff, by sitting in the jeep, had assumed the risk of being injured in the accident.

Consent may be expressed or implied

In cases of this defence, the consent of the defendant need not be given explicitly and even his consent may be inferred from his conduct.
Limitations on the application of volenti non fit injury rescue cases.

When the plaintiff is hurt in consequence of doing an act which he knows is likely to cause him harm, but which is an act of saving someone, this defense will not apply and the defendant will be held liable.

Banthan v. Osborne Garrett & Co.

In this suit, Vadini and her husband were buying some goods in the shop. At the same time the glass of the roof skylight of the shop was broken which was constructed by a contractor and was broken due to his carelessness. The mirror fell on Vadini's husband and he was hurt. When Vadni bent her leg in an attempt to save her husband from that mirror, he bent like that. The plaintiff filed a suit for damages against the contractor. The court held that the contractor is liable as this clause does not apply in the defense case.

Illegal Act:
If consent is given to an act which is not permitted by law, even if all the necessary conditions of this defense are met, the liability cannot be avoided and thus in such cases, this defense becomes inoperative defendant's negligence.

The defense of volunti non fit injuria does not apply in a case where the defendant has been negligent. Thus only where there is no negligence on the part of the defendant, he can claim this defense to avoid liability.

Written By: Jyoti Prajapati, Pursuing Law (Ll.B. 3rd Year) From Dr. Harisingh Gaor Vishwavidhyala, Sagar M. P. India
Email id- [email protected]

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