In law of torts, there exists a general defence known as Volenti Non Fit Injuria.
It is a Latin legal maxim that translates to "Injury is not done to one who
consents." This principle is a fundamental concept in tort law and the law of
civil wrongs. It suggests that if an individual willingly and knowingly consents
to a certain act or risk, they cannot later claim that they were wronged or
injured by that act. The principle is based on justice and good conscience.
In legal terms, this concept often arises in cases where individuals voluntarily
participate in activities or situations with inherent risks, such as sports,
medical procedures, or even some contractual agreements. In most cases,
individuals who partake willingly in said scenarios or activities are unable to
assign blame onto others for any resulting harm or injuries.
Legal limitations and exceptions can arise when consent is procured fraudulently
or through coercion. Instances like these may result in the consent being deemed
invalid under law.
In summary, "volenti non fit injuria" emphasizes that individuals who willingly
agree to participate in certain activities or assume certain risks cannot later
claim that they were wronged or injured by those activities or risks.
Essentials of Volenti Non Fit Injuria
- There must be an express or implied consent to face the risk. The consent must be free. If the consent of the plaintiff is obtained by fraud, compulsion, or mistake induced by the defendant, then it is not consent and it does not act as a defence also.
- The injury or loss must not be caused by the wilful intention of the defendant.
- The defendant should not be negligent. If he is negligent, this doctrine is not applicable.
- This doctrine is not applicable to illegal acts, e.g., illegal gunfight, sword fight etc.
- This maxim is not applicable to rescue cases or cases of saving persons in danger.
Participating in contact sports, such as mixed martial arts, boxing, or
football, come with known physical dangers. In the event of injuries sustained
during gameplay, it is not typically possible for the injured individual to file
a lawsuit against the opposing player involved in the legal match.
Patients often sign consent forms before undergoing medical
procedures or surgeries. This consent acknowledges the potential risks and
complications. If a known risk materializes and results in injury, the patient
generally can't claim injury due to their prior informed consent.
Activities like bungee jumping, skydiving, or even
certain theme park rides require participants to sign liability waivers. By
signing these waivers, individuals acknowledge the risks involved, and they
cannot typically sue the operator for injuries sustained during the activity.
Entering into a business contract often means agreeing
to specific risks and liabilities. But should one suffer financial losses or
other harm as a result, filing a lawsuit may not be a justified legal action,
especially if the party willingly entered into the contract.
One may not be able to sue the other for the injuries
sustained during the altercation, if two individuals engage in a consensual
fight in certain jurisdictions. This principle is often referred to as "consent
in mutual combat."
Exceptions to Volenti Non Fit Injuria
While "volenti non fit injuria" is a fundamental legal principle suggesting that
individuals who willingly consent to known risks cannot later claim injury or
wrong, there are several exceptions and limitations to this principle. These
exceptions are designed to ensure fairness and justice in various legal
situations. Some common exceptions are noted below:
Fraud or Misrepresentation:
If consent is obtained through fraud,
misrepresentation, or deceit, the principle of "volenti non fit injuria" may not
apply. If one party deliberately conceals or misrepresents important information
about the risks involved, the consent may be invalidated.
Consent obtained under duress or coercion is generally not considered
voluntary. If someone is forced or threatened into consenting to a particular
action or risk, their consent may not be valid, and they can claim injury if
If the consented activity is illegal, the principle may not apply.
For example, if someone consents to participate in an illegal activity and is
harmed during its commission, they may not be barred from seeking redress.
Exceptional situations call for exceptional measures, especially
when it comes to rescue cases. The doctrine of volenti non fit injuria takes a
backseat in instances where the plaintiff willingly puts themselves in harm's
way to save someone from the perilous effects of defendant's wrongful and
negligent actions. In such cases, the rescuer holds the right to claim a remedy,
and the defendant's defence of volenti non fit injuria shall not hold water.
Negligence of the defendant:
The defendant cannot invoke this defence if their
negligence caused the plaintiff's injury. The act for which the plaintiff
granted consent must match the act for which the defence is sought. If the
plaintiff consents to a certain degree of risk, it is assumed that the defendant
will not act negligently.
In some cases, public policy considerations may limit the
application of "volenti non fit injuria." For instance, certain activities may
be considered so inherently dangerous or against public policy that even with
consent, liability is not absolved. As for example, extreme and dangerous
activities that stretch beyond the usual risks associated with a sport, such as
Due to youth, mental incapacity, or intoxication, some individuals
may be unable to legally give informed consent. This renders the principle
inapplicable. Genuinely consenting from the perspective of the law is irrelevant
for individuals who are either mentally incapacitated, heavily intoxicated, or
If one party exploits the other party's lack of knowledge
or weaker bargaining position, contractual agreements could be deemed invalid on
the basis of an unjustifiable deal. This can also result from taking advantage
of the other party's vulnerable situation.
If the harm suffered was due to a risk that was
unforeseeable and not part of the inherent risks that were consented to, the
principle may not apply. Consent typically covers foreseeable risks, but not
Difference between Volenti Non Fit Injuria and Scienti Non Fit Injuria
The legal concepts of "scienti non fit injuria" and "volenti non fit injuria" in
the realm of tort law are distinct in terms of the plaintiff's relationship to
harm and consent. The former applies when the plaintiff, despite being aware of
the risk, does not consent or willingly subject themselves to it, thus giving
them the opportunity to seek compensation for negligence.
In contrast, "volenti
non fit injuria" applies where the plaintiff knowingly accepts the risk, thus
forfeiting the right to make a negligence claim. To summarize, "scienti non fit
injuria" relates to harm without consent, while "volenti non fit injuria"
pertains to active agreement to the risk. The case of Dann v. Hamilton noted
below exemplifies this situation.
Hall v. Brooklands Auto Racing Club
Hall was a spectator in a car race. Two cars collided and Hall was injured in
the collision. In an action for damages, he was found not entitled to recover
damages since he had given implied consent to run the risk.
R v. Williams
Under the guise of improving a student's voice, a music teacher committed rape
after gaining the student's consent through deceit. Specifically, this
16-year-old female student was misled into believing that the sexual intercourse
was a necessary surgical procedure and thus the consent given was not truly
understood. Here, the music teacher is liable to pay damages.
Bowater v. Rowley Regis Co.
The defendant's foreman asked the plaintiff, a cart driver, to operate a horse,
despite the fact that both plaintiff and defendant were aware of the animal's
tendency to bolt. Though the plaintiff refused, he eventually acquiesced to the
order. Tragically, the horse ended up bolting, causing injury to the plaintiff.
The court ruled that the plaintiff's consent was given under duress, rendering
the defendant's defence inapplicable.
Lakshmi Rajan v. Malar Hospital Ltd.
Malar Hospital Ltd. was sued by Lakshmi Rajan, a married woman. She had
discovered a painful lump in her breast. Despite the fact that the lump had no
effect on her uterus, it was removed for no apparent reason during the surgery.
The hospital was found to be responsible for inadequate service. The court found
that the patient's agreement to the procedure did not suggest a willingness to
have her uterus taken out.
Dann v. Hamilton
Deciding to travel with a drunk driver, the plaintiff - a woman - was well aware
of the potential for an accident. The plaintiff's fears came true when the
driver's negligence caused her to sustain serious injuries. Even though the
driver had died in the accident, damages were still awarded to the plaintiff
through his representative. It is essential to understand that the plaintiff's
awareness of the driver's intoxicated condition does not indicate approval of
the hazards arising from his careless behaviours.
Individuals have the right to make their own choices and be held accountable for
the consequences, as evident in the Latin maxim "volenti non fit injuria". This
principle helps mitigate frivolous lawsuits and upholds contractual agreements,
while promoting personal responsibility. However, there are exceptions to this
doctrine when public safety concerns or extreme recklessness override personal
consent. Ultimately, this principle strikes a delicate balance between personal
autonomy and safety.
- Law of Torts, Usha Jaganath Law Series