PAPER ON

VOLENTI NON FIT INJURIA

SUBMITTED FOR THE PURPOSE OF INTERNAL ASSESSMENT

LAW OF TORTS

FIRST SEMESTER

LL.B. (HONS.) IN INTELLECTUAL PROPERTY LAW

AT RGSOIPL – IIT KHARAGPUR

UNDER GUIDANCE OF: SUBMITTED BY:

Dr. S.R.Subramanian CHINMOY MISHRA – 17IP63011

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VOLENTI NON FIT INJURIA

INTRODUCTION
Volenti non fit injuria is a defence of limited application in tort law. A direct
translation of the latin phrase volenti non fit injuria is,'to one who volunteers, no
harm is done'. Where the defence of volenti applies it operates as a complete
defence absolving the Defendant of all liability. It is often stated that the Claimant
consents to the risk of harm, however, the defence of volenti is much more limited
in its application and should not be confused with the defence of consent in
relation to trespass. The defence of volenti non fit injuria requires a freely entered
and voluntary agreement by the claimant, in full knowledge of the circumstances,
to absolve the Defendant of all legal consequences of their actions. There is a
considerable overlap with contributory negligence and since the introduction of the
Law Reform (Contributory negligence) Act 1945; the courts have been less willing
to make a finding of volenti preferring to apportion loss between the parties rather
than taking an all or nothing approach.
The requirements of this defence are thus:
1. There should be an injury.
2. The injury should have been suffered voluntarily.
3. The injury should have been suffered in full knowledge of the nature
and extent of the risk involved.
The very essence of the defence of volenti non fit injuria lies in the presence of
consent. Consent can be of two types:
a) Express consent: Express consent is clearly and unmistakably
stated. Express consent may be oral or written
b) Implied consent: Implied consent is not expressly granted by a
person, but rather inferred from a person's actions and the facts
and circumstances of a particular situation or in some cases, also
might be inferred from a person's silence or inaction.

Applications of Volenti Non Fit Injuria

• The defence of Volenti non fit injuria has a broad spectrum of applications. Some of
the popular applications are as follows:

1. In Employment Relationships

2. In Rescue Cases

3. In Cases Of Suicide

4. In Cases Of Sporting Events

5. In Relation To Drunk Drivers

6. In Cases of Trespassers

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A. In Employment Relationships

Imperial Chemical Industries Ltd v Shatwell [1965] AC 656 House of Lords

• The claimants were, brothers & qualified shotfirers employed by the defendant. They
were injured due to an explosion at the defendant's quarry caused by the brothers’
negligence. They had insufficient wire to test a circuit to allow them to test from a
shelter. The brothers hurriedly decided to go ahead and test with the shorter wire.
Each brother claimed against the defendant based on their employer's vicarious
liability for the negligence and breach of statutory duty of the other brother. The
defendant raised the defence of volenti non fit injuria in that the brothers had full
knowledge of the risk and were acting against express instructions. At trial the judge
held that the defence of volenti could not apply where there was breach of a statutory
duty. This was upheld in the Court of Appeal.

• The appeal was allowed. The brothers had deliberately acted in defiance of the
employer's express instructions in full knowledge of the risks. The workers were
under the statutory duty not the employer. The employer had been instrumental in
bringing in the statutory regulations and ensured all workers were aware of them.
They had also previously dismissed a worker for defying the regulations.

Smith v Baker & Sons [1891] AC 325

 The Claimant sued his employers for injuries sustained while in the course of working
in their employment. He was employed to hold a drill in position whilst two other
workers took it in turns to hit the drill with a hammer. Next to where he was working
another set of workers were engaged in taking out stones and putting them into a
steam crane which swung over the place where the Claimant was working. The
Claimant was in1ured when a stone fell out of the crane and struck him on the head.
The Defendant raised the defence of volenti non fit injuria in that the Claimant knew
it was a dangerous practice and had complained that it was dangerous but nevertheless
continued. At trial the Jury found for the Claimant. The Defendant appealed and the
Court of Appeal allowed the appeal holding that the Claimant was precluded from
recovering as he had willingly accepted the risk. The Claimant appealed to the House
of Lords.

Held:

 The appeal was allowed. The Claimant may have been aware of the danger of the job,
but had not consented to the lack of care. He was therefore entitled to recover
damages.

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B. In Rescue Cases

Baker v TE Hopkins & Son Ltd [1959] 1 WLR 966 Court of Appeal

• Mr Ward and Mr Wileman were employed by the defendant, Hopkins, to clean out a
well which was 50ft deep and 6ft wide. Hopkins tested the atmosphere in the well by
putting a lighted candle down the well and he concluded that the atmosphere was fine.
He and Ward used a petrol motored pump down the well and left the well leaving the
engine running on its own. Before leaving the site Mr Hopkins warned Mr Ward and
Mr Wileman not to go down the well until the fumes have cleared and he had arrived
on the site. In breach of these orders Mr. Ward went down the well and was overcome
by fumes. Mr Wileman called for assistance and went down the well after him. The
claimant, Dr Baker, too went into the well to seek to rescue the two. Unfortunately all
three died of carbon monoxide poisoning. The defendant contended that the act of the
doctor acted as a novus actus interveniens and sought to invoke volenti non fit injuria.

Held:

• It was held the doctor’s actions were not a novus actus interveniens. It was
foreseeable that if a defendant by his negligence places another in peril that someone
may come to his rescue and the doctor's actions were not unreasonable in the
circumstances. The Claimant's action was not defeated by volenti non fit injuria. He
was and as such his actions did not count as freely and voluntarily accepting the risk.

Haynes v Harwood [1935] 1 KB 146

• The Defendant left a horse-drawn van unattended in a crowded street. The

horses bolted when a boy threw a stone at them. A police officer tried to stop the
horses to save a woman and children who were in the path of the bolting horses. The
police officer was injured. It was held that the Defendant owed a duty of care as he
had created a source of danger by leaving his horses unattended in a busy street.

C. In Cases Of Suicide

Where the Claimant commits suicide, originally it was held that they would be treated as
volens if they were of sound mind, but if they were of unsound mind the defence of
volenti non fit injuria would have no application.

Kirkham v CC Greater Manchester Police [1990] 2 QB 283 Court of Appeal

• Mr Kirkham was an alcoholic and suffered from depression. He had made a two
suicide attempts before being admitted to hospital but discharged himself the
following day. When he arrived home, his wife prevented him from drinking and he
became violent and started smashing furniture. The police were called and arrested
him. His wife informed them of his suicide attempts and discharging himself from
hospital and it was agreed that he should be remanded in custody for his own safety.

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However, the police failed inform the prison authorities that Mr Kirkham was a
suicide risk. He committed suicide whilst on remand at Risley Demand Centre. His
wife brought an action based on the negligence of the police in failing to pass on the
information. The Police raised the defences of volenti non fit injuria and ex turpi
causa.

Held:

• The claimant was successful. The defence of volenti non fit injuria, although normally
would apply where a person of sound mind were to take their own life, had no
application where a person of unsound mind took their life. The defence of ex turpi
causa was not limited to illegal acts but extended also to immoral acts. The court
applied the public conscience test and concluded that to allow the claimant to succeed
would not affront the public conscience, or shock the ordinary citizen.

Reeves v Commissioner of Police of the Metropolis [2000] 1 AC 360 House of Lords

• Martin Lynch committed suicide whilst in a police cell. He had attempted suicide
earlier that day in the cells at the magistrates. He had also attempted suicide on
previous occasions. He had been seen by a doctor at the police station on arrival who
reported that he was not schizophrenic or depressed but was a suicide risk. The
custody officer checked him at 1.57 pm and left the hatch open. He was found at 2.05
pm having used his shirt as a ligature secured by the open hatch. He was unable to be
resuscitated and died a week later. The defendant argued that as Lynch was of sound
mind his voluntary and informed act of suicide broke the chain of causation.

Held:

• The act of suicide was the very thing that the police were under a duty to prevent to
treat this as a novus actus interveniens would deprive the duty of any substance.
Therefore the defendant was liable; however damages were reduced by 50% under the
Law Reform (Contributory Negligence) Act 1945.

D. In Cases Of Sporting Events

A participant in sporting events is taken to consent to the risk of injury which occurs in
the course of the ordinary performance of the sport.

Wooldridge v Sumner [1963] 2 QB 43

 The claimant was a photographer at a horse show. He was situated within the ring of
the horse show and not behind the barriers where the spectators were housed. He was
on a bench with a Miss Smallwood who was a director of the company which
employed the Claimant. He had been taking little interest in the proceedings and was
not experienced in regard to horses. During the competition, one of the horses, Work
of Art owned by the Defendant, came galloping at great speed towards the bench

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where they were sitting. The Claimant took fright at the approach of the galloping
horse and attempted unsuccessfully to pull Miss Smallwood off the bench. He stepped
or fell back into the course of the horse which passed three or few feet behind the
bench, and was knocked down. The Claimant brought an action in negligence arguing
the rider had lost control of the horse and was going too fast. The defendant raised the
defence of volenti non fit injuria.

Held:

 There was no breach of duty so the Claimant's action failed. On the issue of volenti
non fit injuria it was held that consent to the risk of injury was insufficient. There
must be consent to the breach of duty in full knowledge of the nature and extent of the
risk.

E. In Relation To Drunk Drivers

A person accepting a lift from a drunk driver was not to be treated as volens unless the
drunkenness was so extreme and so glaring that accepting a lift would be equivalent of to
intermeddling with an unexploded bomb or walking on the edge of an unfenced cliff.

Dann v Hamilton [1939] 1 KB 509

• The Claimant was injured when she was a willing passenger in the car driven by the
Mr Hamilton. He had been drinking and the car was involved in a serious crash which
killed him. In a claim for damages the Defendant raised the defence of volenti non fit
injuria in that in accepting the lift knowing of his drunken condition she had
voluntarily accepted the risk.

Held:

• The defence was unsuccessful. The claimant was entitled to damages.

F. In Cases of Trespassers

The Occupiers' Liability Act 1984 requires all owners of property to take reasonable steps
to make their premises safe for anyone who enters them, even those who enter as
trespassers, if they are aware of a risk on the premises. However, the doctrine volenti has
been applied to cases where a trespasser exposed themselves deliberately to risk:

Titchener v British Railways Board [1983] 1 WLR 1427

• A girl who had trespassed on the railway yard was hit by a train. The House of Lords
ruled that the fencing around the railway was adequate, and the girl had voluntarily
accepted the risk by breaking through it.

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Ratcliff v McConnell [1997] EWCA Civ 2679

• A student who had broken into a closed swimming-pool and injured himself by diving
into the shallow end was similarly held responsible for his own injuries.

Tomlinson v Congleton Borough Council [2003] UKHL 47

• A man who dived into a shallow lake, despite the presence of "No Swimming" signs;
the signs were held to be an adequate warning.

Volenti Non Fit Injuria in INDIA

Kallulal v Hemchand and Others [1958] AIR 48

• The appellants were the owners of a house which had its southern wall adjacent to a
highway. Once during heavy rain, the southern wall collapsed, crushing plaintiff’s
tent and almost immediately killing his son and his daughter. The defendant tried to
defend himself by saying that, the house was actually in a good condition and needed
no repairing. The collapse of the house was as a result of the rain (vis major) and if
the appellants were aware of the risk then volenti non fit injuria would be applicable.
However, this was clearly a case of negligence on the part of the defendant.

Padmavati v Dugganaika [1975] ACJ 222

• The plaintiff voluntarily got into the car of the defendant who was drunk. The car
toppled over in an accident, the plaintiff claimed for damages. However, damages
would not be paid to the plaintiff, because they not only had complete knowledge of
the risks involved, but had also voluntarily consented to them and these factors are
sufficient to qualify it as a case of volenti non fit injuria.

United India Insurance v Goguloth Khanna [2001] 2 ACC 392

• A lorry (carrying goods) belonging to the plaintiff on its way gave lift to several
passengers standing on the road for transport. On the way, the lorry met with an
accident, thus killing many villagers. A suit for compensation was passed for the
injures against the owner, driver and insurer of the lorry, that is, United India
Insurance. However, it was contended by the Insurance Company that, “the
injured/deceased unauthorised entered the lorry, and the maxim/doctrine volenti non
fit injuria applied to this case as they voluntarily entered into the lorry at their own
risk.”

New India Assurance Company v Shri Satpal Singh and Others [2000] AIR 235

• The Insurance Company was held liable to pay compensation even though the
girl(plaintiff) who died was a gratuitous passenger in the truck that was insured by the
Company. However, for volenti non fit injuria to apply, it was necessary to show that

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the villagers had voluntarily entered the lorry, but there was not enough evidence to
prove consent on part of the villagers. This was unlike the case of Padmavati vs
Dugganaika, where sufficient evidence was available to qualify voluntary risk-taking
on the part of the plaintiff.

Adhikarala Jagadeeswara Rao v Gopala Krishna Transport and Others [2005] 1 ALD
111

• There was an accident due to negligence on the part of the driver, injuring the
passengers and the driver himself. The defence of volenti non fit injuria is not valid in
this case, because, there has been negligence on the part of the driver. So,
compensation was awarded to the injured.

• Lakshmi Rajan v Malar Hospital 1998

• Medical negligence is another concept, in which volenti non fit injuria is often
invoked as a defence. There were many other such case of medical negligence, where
the Courts have in general held that volenti non fit injuria though contested will not be
applicable for the main reason that patient (plaintiff in these cases) consents to the
operation and not to the injury resulting from negligence in such an operation.

Difference between Volenti Non Fit Injuria and Contributory Negligence

1. VNFI is a complete justifiable defence. The defendant is completely excluded.
Whereas in case of Contributory Negligence, It is a partial defence. The fault is
divided between the plaintiff and the defendant.

2. In “volenti”, the plaintiff knows the risk in the incident, which he is going to face. At
the same time, he takes certain precautionary steps for his safety also. However, if the
defendant is negligent, the plea of “volenti” cannot be helpful to the defendant. In
contributory negligence, both the parties, i.e. the plaintiff and defendant are negligent.

3. Both the plaintiff and the defendant know the nature, risk of the incident. Generally
the plaintiff invites the risk voluntarily. Until the incident occurs, both of them do not
know the incident, and its nature and risk. Both of them do not invite the risk.

Volenti & Scienti

• Scienti non fit injuria, which means “A wrong is not done to one who knows and wills
it”. Only knowledge of the risk is not enough to claim defence there must be
acceptance to undergo the resultants of the risk undertaken. There had to be consent
and mere knowledge is not sufficient.

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• Knowledge is not a conclusive defence in itself. But when it is knowledge under

circumstances that leave no option but one, namely, that the risk has been voluntarily
encountered, the defence is complete. It is necessary to prove that the person injured
knew of the risk, and voluntarily took it. Mere knowledge of the risk or danger is not
sufficient, knowledge of the risk is necessary but it alone cannot attract the application
of the maxim volenti non fit injuria. For application of the maxim the plaintiff must
not only have the knowledge, but also the consent to run the risk.

CONCLUSION
Volenti Non Fit Injuria, even though is just a defence of tort, has a broad spectrum of
applications. The scope of this defence is in direct relation with duty of care and the
commitment of a negligent act. The application of the defence over time similarly depend on
the what is a negligent act in that period of time, as the application of this defence cannot be
limited or fixed for a given situation. Due to these variables, we can also conclude that with
the changing times, situations, society, law, country, etc., this concept can never stop
developing. Hence, it is safe to say that the defence of Volenti Non Fit Injuria will continue
to evolve, be interpreted and be applied in various ways over the course of time.

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