Talk:Volenti non fit injuria

Volenti non-fit injuria

Volenti non-fit injuria (Latin: "to a willing person, no injury is done") is a common law doctrine, which means that someone who knowingly and willingly puts him or her in a dangerous situation will be unable to sue for his or her resulting injuries. It is sometimes described as the plaintiff "consenting to run a risk" but should be distinguished from consent which can prevent some torts arising in the first place (for example, consent to a medical procedure preventing the procedure being a trespass to the person, or consenting to a person visiting your land preventing them being a trespasser).

For example, rugby and football players consent to the incidental contact that arises from the normal conduct of those sports, including the attendant risk of physical injury. In boxing, participants consent to the deliberate infliction of harm by their opponent. However, if a player goes outside the usual conduct of the sport, or a match official is negligent in letting play get out of control, then a claim may arise. It may be said that the standard of care in such cases has been altered, to increase the threshold of carelessness necessary to found a claim

The maxim has a twofold application.

• In the first place it applies to intentional acts, which would otherwise be tortuous and refers to consent to an entry on land or goods whish would otherwise be trespass.
• Secondly it also includes consent to physical harm, which would otherwise be assault as in the case of a boxing match or a surgical operation.

This can be further understood with the following cases

• Hall v. Brooklands Auto Racing Club. During the race two cars collided as a result of which one of them was thrown among the spectators and the plaintiff was injured .It was held that the plaintiff impliedly took the risk of such injury thus the defendants were not held liable.

• Padhmavati v. Dugganaika while the driver was taking the jeep for filling petrol in the tank two strangers took lift in the jeep and while going one o f the bolts came out and the jeep toppled and one the strangers died in the process. But the defense of Volenti non fit injuria was pleaded successful.

There are further many possibilities in this defense

Consent Must Be Free

For the defense to be available, it is necessary to show that the plaintiff’s consent to the act done by the defendant was free. If the consent of the plaintiff has been obtained by fraud or under compulsion or under some mistaken impression such consent does not serve as a good defense.

• In Lakshmi Rajan v. Malar Hospital Ltd the complainant a married woman aged 40 years, noticed development of a painful lump in her breast. The lump had no effect on her uterus, but during surgery, her uterus was removed without any justification. It was held that the opposite party i.e. the hospital was liable for the deficiency in service.

Consent obtained by fraud

Consent obtained by fraud is not real and that does not serve as a good defense

• In R v. Williams the accused, music teacher was held guilty of rape when he had sexual intercourse with a girl student of 16 years of age under the pretence that his act was an operation t o improve her voice.

Consent under compulsion

Consent given under circumstances when the person does not have freedom of choice is not the proper consent. A person may be compelled by some situation to knowingly undertake some risky work, which, if he had a free choice, he would not have undertaken.

In such cases the servant maybe sometimes be faced with the situation of doing a dangerous job or risk losing his job. Thus in such a situation their is no Volenti non fit injuria.

But if a workman adopts a risky method of doing a not because of any compulsion of his employer but of his own free will, he can be met with the defense Volenti non fit injuria

Mere knowledge does not imply assent

For the maxim Volenti non-fit injuria to apply, two points have to be proved:

1. The plaintiff knew that the risk is there
2. He, knowing the same agreed to suffer the harm.

If any one of these points is missing then the defense of Volenti is not available

Merely because the plaintiff knows about the harm does not mean he assents to suffer it.

• In Bowater v. Rowley Regis Corporation the plaintiff a cart driver was forced by the foreman to drive a horse, which was liable to bolt.

The horse bolted and the driver was hurt, here the defense of Volenti was pleaded but the defendants were held liable.

• In Dannn v. Hamilton a lady knowing that the car driver was drunk still traveled in it and the car met with an accident. The defendants were held liable, as the degree of intoxication was not that was as to cause any sort of accident.

Limitations on the scope of the doctrine

The scope of the application of the doctrine of Volenti Non fit injuria has been curtailed

1. Rescue Cases
2. Unfair contract terms Act 1977, England

Rescue Cases

Rescue cases form an exception to the application of the doctrine of Volenti no fit injuria. When a 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 Volenti.

• In Haynes v. Harwood Case although it was held that even though the policeman knew about the danger the defendants were held liable.

• In Wagner v. International Railway the railway company was held liable for the damages suffered by the plaintiff during a rescue.

• Also In Hyett v. Great Western Railway co in that case the plaintiff was injured in an attempt to save the railway cars from fire .It were held that the defendant was liable.

• Unfair Contract Terms Act , 1977 (England)
• Negligence Liability – (1) A person cannot by refrence to any contract term

Volenti non fit injuria and Negligence Differentiated

Volenti is a complete defense but negligence is based on the proportion of his fault in matter.

In the defense of contributory negligence both plaintiff and the defendant are negligent. In Volenti the Plaintiff may be volens but at the same time excersing due care for his own safety.

In case of Volenti .the plaintiff is always aware of the nature and extent of the danger, which he encounters. —Preceding unsigned comment added by 221.135.80.130 (talk • contribs) 01:29, 16 October 2006 (UTC)

The first two paragraphs of the above unsigned contribution are copied from our article, and the rest seems to be new material, or copied from something like a student essay (it could be a copyvio, but I have not searched for anm original source). Can some of it be used to improve the article? -- ALoan (Talk) 10:24, 16 October 2006 (UTC)

I am opposing the proposed merge

See Talk:Assumption of risk. --Coolcaesar 06:21, 19 July 2007 (UTC)

Clarification for the "voluntary" part

Hi,

IANAL but it seems like there needs to be clarification as to how not any person can put himself or herself in a position in which upon suffering a negative consequence Volenti non fit injuria may be applicable. For example, a 10 year old may not understand the dangers associated with a certain act even though he or she may voluntarily decide to do it. --Ubardak (talk) 06:13, 10 April 2008 (UTC)

Volenti in bailment cases

Would it be a good idea to include a section on the effect/possibility of volenti arguments in cases of bailment? Brabant & Co v King [1895] AC 632 comes to mind. — Preceding unsigned comment added by Tsamb (talk • contribs) 04:41, 31 May 2012 (UTC)

iniuria / injuria

AFAIK there's no letter "j" in Latin - I'm not changing it myself, for I don't know if there is any consens on using this usus on English wiki (please let me know if so). Cheers, batwing (talk, contribs) 23:47, 17 August 2012 (UTC)