WHAT IS VOLENTI NONFIT INJURIA?
Volenti non fit injuria is one of the defence under the law of torts in which the person who has committed a wrong is exempted from liability because the victim of such a wrong gives his consent to the commission of such an act and such a consent must be free for the successful application of this defence in a case.
For example – In a cricket stadium team A and B are playing cricket and if the players get injured while playing then they could not sue for their injuries.
In a Horse race court B is the jockey, and if he fell from the horse and get injured then he could not get his legal damages.
ELEMENTS OF VOLENTI NONFIT INJURIA
There are two elements of Volenti non fit injuria –
- The plaintiff should have the knowledge of the risk.
- suffer the harm.
BURDEN OF PROOF
In volenti nonfit injuria burden of proof lies on the defendant and he has to prove that the plaintiff has full knowledge of the act and he had consented for it and also defendant have to prove that the plaintiff was aware of the risk involved in that.
For example, A undergoes a leg surgery, where doctor fails to inform him about losing his leg due to operation. A was not aware of the risk and while undergoing the surgery he lost his leg. Here, doctor cannot take the defence of volenti nonfit injuria.
EXPRESS OR IMPLIED CONSENT
It is not required that the consent to be expressed, the consent can even be given by the defendant’s conduct.
CONSENT OF THE PLAINTIFF MUST BE FREE
The consent given by the plaintiff for the act should be free from coercion, fraud etc.
CONSENT BY FRAUD
If the plaintiff consent is obtained by fraud, then the defendant could not take the defence of volenti nonfit injuria and will also be liable for the wrong done by him.
LIMITATIONS ON THE APPLICATION OF VOLENTI NONFIT INJURIA
- Rescue cases – in this the plaintiff voluntarily encounters a risk to rescue somebody from an imminent danger created by the wrongful act of the defendant, he cannot have the defence of volenti nonfit injuria.
- Illegal act – if the consent is given for the illegal act, but all the essentials of volenti nonfit injuria is unfit than also the liability cannot be escaped and thus the defence becomes inappropriate.
NEGLIGENCE LIABILITY
Volenti nonfit injuria’s defence cannot be applicable where the defendant has been negligent.
VOLENTI NONFIT INJURIA AND CONTRIBUTORY NEGLIGENCE
Volenti nonfit injuria as well as contributory negligence are used for defence by the defendant to escape from the liability but they are different from each other.
Contributory negligence the plaintiff when suffered is also at fault along with the defendant and thus this is the partial defence available to the defendant.
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