This article is about Volenti Non-fit Injuria which is one of the most important Latin maxim in law of torts.
The maxim Volenti Non-fit Injuria is based on the principle of justice and good concerns because a man cannot complain of harm to which he has consented to with his full knowledge and free will. This Latin maxim means to a willing person, an injury is not done. So the person who himself voluntarily waved or abandoned his right cannot have any claim over it. Provided this doctrine is only applicable to the extent that a normally prudent person would have assumed to have suffered the risk. For example if A went for a cricket match, the batman hit a 6 and the ball lands on A’s head then A cannot claim for compensation because when A took a seat in the stadium, A accepted the risk while sitting in the stadium.
This maxim is one of the defences in tortious liability. This defence of consent is a complete defence which means if the defence is accepted there will be no liability. The defence is available where the claimant had a choice to avoid risk but continue to take the risk and therefore there is no one else liable for the harm he may have suffered. Consent however without the free will of acceptance does not become a defence.
The other side of this principle is Scienti non-fit Injuria which means that only knowledge of the risk is not enough to claim defence. There must be accepted to undergo the resultants of the risk undertaken. Thus having knowledge is only a partial fulfilment of the conditions for the application of Volenti Non-fit Injuria. For attracting this defence completely, the person must be accepted to undergo the resultant of the risk undertaken. Thus the burden to prove Volenti Non-fit Injuria is on the defendant and he must prove that he had full knowledge of the act and be consented to the risk involved in the act.
In Wooldridge vs Summer, claimant was a photographer. While taking photos of a horse race, horse rider lost control and claimant seriously injured due to that. So photographer take action against the defendant on the basis of duty of care. But the court of appeal found that there was no duty of care owned by the defendant because horse race is a fast moving sport and the rider is to concentrate on the horse rather than spectators. The claimant was a spectator and he select the place to take photograph on his own choice.
The next case is Khimji vs Tanga Mombasa Transport company limited. In that case during a flood time, driver was reluctant to continue the journey but some of the passengers including the deceased insist that the journey should be continued. The bus got drowned and on next day the deceased dead body was found. Deceased person’s relatives sued the driver but court held that driver is not liable because the deceased knew the risk involved and assumed it voluntarily so the defence of Volenti Non-fit Injuria rightly applied in this case .
Next caseis Ilott vs Wilkes. The defendant had placed spring guns in a wood on his ground for the protection of the game. The defendant with full knowledge that there were spring guns somewhere in the wood trespassed on the land of the defendant and was injured. He sued the defendant on the ground that the defendant had committed a tort against him by exceeding his right of private defence. It was held by the court that although the defendant had exceeded his right of private defence, but he was not liable because the plaintiff had notice of the gun and he having wilfully courted the danger himself. His case fell within the maxim Volenti Non-fit Injuria but the case would be different where the trespass is committed having no knowledge of existence of the guns. In such a case Volenti Non-fit Injuria will be inapplicable. This was laid down in the case of Bird vs Halbrook.
In this case Bird set up a sprinkle trapped in his garden to protect his property but he didn’t post a warning board about the trap. The spring gun trapped injured Halbrook, an innocent trespasser who was chasing a trapped bird. Here Halbrook is a trespasser but court help that the defendant was liable to make compensation for the injuries to the plaintiff on the ground that since the plaintiff had no knowledge of the danger, the maxim Volenti Non-fit Injuria had no application.
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