Volenti non fit injuria

Author – Piya Chaudhary

Volenti non fit injuria is a latin word which means “to a willing person, injury is not done’’. It is a defense that is taken under law of Torts, where a person willingly accepts the risk of doing something which he has prior knowledge that harm might be inflicted on him then he would be unable to bring a claim against the other party.  Volenti also means ‘voluntary assumption of risk’.  Giving consent to an action one is doing by his own will comes under volenti non fit injuria.

There are 2 essentials for the defense of volenti non fit injuria

1. The plaintiff has the knowledge of the risk.
2. Knowing the risk plaintiff has agreed to suffer the harm.

But if both these are not satisfied then the defendant cannot use this as a defense. Just because a person has a knowledge about the risk does not mean he has given consent to suffer the consequences of it. Consent given can be implied consent and expressed consent.

For e.g. there is a cricket match in an open stadium, where one of the batsman called Dhoni hits a helicopter shot and the ball lands on your head in the spectator stand. You suffer serious injuries from the hit and that has caused you to spend too much money on hospital bills. Frustrated by this you sue Dhoni for damages or compensation. But here you will lose the case as when you were buying the sticker to watch a match in the stadium, the ball in normal circumstances is likely to sometimes go to the crowd sitting as spectators, and it would mean that you gave an implied consent for the same.  And hence Dhoni can take the defense of volenti non fit injuria.

An important issue in this defence is that if the defendant takes the defense of this maxim the burden of proof is on him. He has to prove that the plaintiff had full knowledge about the action and gave his consent voluntarily. For e.g. a woman was suffering from an eye infection the doctor suggested a surgery. But before the surgery would begin the patient was informed about the complications that she might even lose her eyesight if they go ahead with the surgery, the woman agreed to the consequences and signed the consent papers. After the surgery the woman lost the eyesight in one of her eyes and sued the doctor. Now the burden of proof was on the doctor to proof that she was briefed about the surgery and her consent was taken. She would lose the lawsuit. Here the consent was expressed.

Consent given must be without fraud and should be by free will.

Limitations for the application of volenti non fit injuria.

1.  If it’s a rescue case- if the plaintiff has full knowledge of the act he’s about to do but it’s a rescue act then this defense cannot be taken and the defendant will be held liable. E.g – a fire was caused due to negligence of A because of which B’s life was in danger seeing that C went inside the fire to save B. C did the act even after knowing the risk of the same. And suffered severe burns in saving B’s life. A is liable for paying damages it was his negligence that caused the fire and will pay C compensation.
2. If the act is Illegal- if the consent is given for an act which is illegal and is not supported by law of a particular country then that action will not get the defence for volenti non fit injuria. For e.g if A and B decide to fight with a sword with each other’s consent but if this act goes against the law of the land then they can use this application.
3. Negligence of the defendant- if the defendant himself is negligent in his action to the plaintiff then the defence cannot be taken into account. For e.g a doctor while operating on his patient left scissors inside his stomach which led to his death. The family members sue the doctor. The defense cannot be used as the doctor himself was negligent.