Introduction
Harm suffered voluntarily by the consent of the plaintiff is not actionable. This principle of law is generally known as ‘Volenti Non-Fit Injuria’ i.e., what is consented to is not an injury. It may be of two kinds which is
- Expressed consent.
- Implied consent.
- Express consent: According to Salmond, no man can force a right which he has voluntarily waive or abandoned. Every man is judge of his own interests. If he voluntarily takes risk or consents to the harm, then he cannot take action for it. For example, if I consent to undergo an operation by the surgeon and is injured and I cannot sue the surgeon because I had given express consent for it.
- Implied consent: Sometimes the consent may be implied and can be inferred from the conduct of parties. In such cases, the plaintiff does not give consent for the injury caused by the act. But he gives consent to a thing to which the injury complained of is incidental. For example, in a game of football, hockey or cricket a player impliedly consented to an injury, which are very common in such games.
In Hall versus Brooklands Auto Racing Club (1932) All ER 208, the plaintiff was a spectator in the defendant’s race club. During the race, there was a collusion between two cars and as a result one of the car was thrown on the spectators and injure the plaintiff. It was held that the defendant was not liable for the injury caused to the plaintiff as he had impliedly consented to suffer the damage which was incidental to such sports race.
Conditions for the application of Maxim
The following are the conditions for the application of maxim Volenti Non-Fit Injuria are:
Consent must be free, Act must be lawful, Maxim is Volenti, non scienti non-fit injuria.
- Consent must be free
The defence of Volenti non-fit injuria will be available to the defendant only when he proves that the plaintiff’s consent for the act done by him was obtained voluntarily. If the consent has been obtained by fraud or under compulsion or under some mistake and impression, then such consent will not be a free consent and will not be a good defence for the defendant.
- Act must be Lawful
The act to which the plaintiff gives his consent and undertakes to suffer the risk must be lawful and the method of doing it must also be lawful, otherwise even consent will not be a good defence for the defendant. Consent cannot make an unlawful act lawful. No person can give consent to others to commit a crime. For example, according to a rule of the boxing, game must be played with gloves. If a person play the game with naked hand, then it will be an unlawful act and cannot be taken as a good defence.
- Maxim is Volenti, non scienti non-fit injuria
The maxim is not scientifi non-fit injuria (knowledge implies consent) but Volenti non-fit injuria. Mere knowledge does not imply consent to take risk. It may, however make it strong or weak, according to the circumstances of the case. It is not necessary to prove that the person injured knew of the risk and voluntarily undertook it. Thus, if he willingly undertakes to do an act inherently dangerous, he cannot, even if he is injured, complain that a wrong has been done to him. For example, if a person consents to a surgical operation, and the operation is unsuccessful and that person have no right to bring an action against the surgeon. But if the operation is unsuccessful because of the surgeon’s negligence, then he can bring an action against him because he had not given consent to the risk which was the result of his negligence.
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