In the law of tort, there are certain defenses available to the defendant to avoid the liability of that tort and these defenses are volenti nonfit injuria, Act of God, Inevitable accident, private defense, mistake, necessity, and Plaintiff, the wrongdoer. These are the general defenses that can be applied against action for several wrongs.
When the plaintiff brings an action against the defendant, the defendant will be liable if all the essentials are proved. To protect the interests of the defendant, these general defenses are available to avoid liability. General defenses are a set of defenses or ‘excuses’ that you can undertake to escape liability in tort.
MEANING OF VOLENTI NON-FIT INJURIA
Volenti nonfit injuria is Latin for “to a willing person, it is not wrong.” This legal maxim means that a person who is willing undertakes the risk cannot claim damages. In the law of torts, there is a duty to protect the rights of others and to take reasonable care and if someone voluntarily agrees to the breach of duty, no action arises.
In case the plaintiff voluntarily agrees to suffer some harm, he is not allowed to complain. Volenti nonfit injuria is also called the defense of consent. If there is consent to risk, no suit can arise. No man can enforce a right that has been voluntarily waived or abandoned.
For example, if a person owes a duty to safely take the passenger and the passenger knowing the driver is drunk enters the vehicle; there will be no action for damages as the passenger has willingly taken the risk. Similarly, you cannot sue someone for trespass when you invited them into your house.
ELEMENTS OF VOLENTI NON-FIT INJURIA
There are two essential elements of volenti nonfit injuria. These are:-
- The plaintiff knows the risk
- The plaintiff has voluntarily agreed to take the risk.
Both of these elements must be present and if any of the elements are not present, defense of volenti nonfit injuria cannot be taken.
At times, the plaintiff might be aware of the risk, but he may not have consented to it. Mere knowledge does not imply consent to the risk.
The concept of mere knowledge is known as scienti nonfit injuria and it means that mere knowledge of risk is not sufficient. It is also necessary that the risk should not go beyond the consent. If a player consented to injuries during the game, the injuries should not be a result of deliberate pushing. It is so because the player did not consent to such injuries.
In Dann v. Hamilton, a lady knowing the driver was drunk chose to travel in it. Due to the driver’s negligent driving, an accident occurred which resulted in the death of the driver and injuries to the lady, and an action for damages, the defendants took the plea of volenti nonfit injuria.
The plea was denied and it was observed that the level of intoxication was not much. So, it cannot be apprehended that driver may cause an accident. Although the lady knew a drunken state, she did not consent to the injury.
Hall v. Brooklands Auto Racing Club is a leading case in the defense of consent. The plaintiff was a spectator at a motor car race being held at Brooklands on a truck owned by the defendant. During the race, a collision between cars led to injury to the plaint, iff, and the defendant took the defense of consent. The defense was granted and it was observed that the plaintiff impliedly took the risk as the sport was inherently dangerous. The defendant was held not liable.
In Smith v. Baker & sons, the plaintiff was an employee of the defendant, and the site where he used to work had a crane that carried rocks over their heads. The plaintiff had also complained to the defendant about it. One day plaintiff was injured because of these rocks falling on him and thus he sued the defendant for damages. It was held that the defendant was liable and had to pay damages because the plaintiff had consented to the danger of the job but not to the lack of care.
CONSENT MUST BE FREE
It is necessary to prove that the consent obtained for the risk was free. This implies that consent should not have been obtained by fraud, coercion, or misrepresentation. Consent should also be for the same act which defendant has done.
For example, if the consent is to enter the living room, the stranger should not enter the bedroom. In case the consent of a person is not free, the defendant cannot claim this defense to escape liability and he will be held liable for damage caused.
There is a case of Lakshmi Rajan v. Malar Hospital Ltd.. The plaintiff, a 40-year-old woman observed the development of a painful lump in her breast. The lump did not affect the uterus, yet it was removed during surgery. The defendant was held liable because the plaintiff did not consent to the removal of the uterus.
In the case of Padmavati v. Dugganaika, the plaintiffs had asked for a lift in the jeep of the defendants. While traveling in it one of the screws of the wheel of the jeep fell out, as a result, the jeep crashed and it caused the death of one of the plaintiffs. In the case, the Court held that the defense of violent nonfit injuria will apply. Thus, the defendants were not liable because by sitting in the jeep the plaintiffs had assumed the risk of being injured in an accident.
CONSENT OBTAINED BY FRAUD
Consent obtained by fraud is not real and serves as a good defense. In cases of consent having been obtained by fraud, the defense of violent nonfit injuria will not apply and the defendant will be held liable for the wrong by him.
The consent by fraud must be in respect of the act done by the defendant. Mere concealment of facts does not amount to fraud to vitiate consent. If a person consented to intercourse, infection with the venereal disease does not vitiate consent.
The music teacher in R v. Williams, was held guilty of rape. He had sexual intercourse with a girl 16 years old under the pretense that his act was a ration to improve her voice. The consent was obtained fraudulently by mistake by the teacher. The real nature of the act was not known to the girl.
CONSENT OBTAINED BY COMPULSION
Consent given under circumstances when the person does not have the freedom to choose is not free. It is the situations like, doing a risky job or losing the job. In such cases, the person is bound to give consent to risk as he does not have free choice.
The situation generally arises in a master-servant relationship. A man cannot be said to be under free consent when his consent is obtained by compulsion. Thus, there is no volenti nonfit injuria when a servant is compelled to do some work even if he was not willing to.
An important element is a compulsion. A person should be unwilling to do the task. Yet, he was compelled to do so. If a workman adopts a risky measure willingly, the defense of consent will be granted.
The plaintiff, a cart driver, in Bowater v. Rowley Regis Co. was asked the y defendant’s foreman to drive a horse. Both defendant and plaintiff knew that horse is liable to bolt. The plaintiff protested but ultimately went in obedience to the order. The horse bolted and the plaintiff was injured. It was held that consent was under compulsion, so the defense will not apply.
EXCEPTION TO RULE OF VOLENTI NON-FIT INJURIA
There is an exception for rescue cases to the defense of consent. If the consent was given to rescue someone because of negligent acts of the defendant, the defendant will be held liable. When the plaintiff voluntarily encounters a risk to rescue somebody from an imminent danger created by the wrongful act of the defendant, he cannot be met with the defense of consent.
Haynes v. Harwoodis an important authority on this point. The servant of the defendant brought two horses into the town and left them to do some other work. The horses were upset by the children and they broke free. Seeing them in rage the plaintiff who was a police officer went to stop the horses and in doing so he got injured.
He brought a case against the owner for damages. The court held the defendant liable because the defense of violent non-fit injuria did not apply in a rescue case.
If a person stops a horse that creates no danger will be without remedy.
Volenti nonfit injuria is a tort law defense in which the person who has committed a wrong is excused from accountability because the victim of such a wrong offers his permission to the commission of such an act, and such assent must be free for this defense to be effective in a case.
This defense is also subject to restrictions, such as rescue instances and the defendant’s carelessness, in which the defendant is held accountable even if the plaintiff gives consent.
Thus, when permitting this defense, courts must confirm that the elements of the defense are met and that the act does not come within the limitations set on it.
 Dann v. Hamilton (1939) 1 K.B. 509.
 Hall v. Brooklands Auto Racing Club (1932) All E.R. 221
 Smith v. Baker & sons, (1891) AC 325
 Lakshmi Rajan v. Malar Hospital Ltd. 1998 CPJ 586.
 R v. Williams (1923) 1 K.B. 340.
 Bowater v. Rowley Regis Co. (1994) K.B. 476.
 Haynes v. Harwood (1935), 1 KB 146