When a plaintiff brings an action against the defendant for a wrongful act under the tort, the defendant is held liable, but there are certain defences that the defendant can take to protect himself or herself from tortious liability.
VOLENTI NON-FIT INJURIA
One of the key defences that the defendants can take to protect themselves is the “consent” of the plaintiff. This defence is often reflected in the legal maxim volenti non-fit injuria which translates to “to a willing person, it is not wrong”. This principle was the common law basis for the assumption of the risk doctrine.[1] When a person gives his or her consent to the infliction of some harm upon himself or herself, he or she cannot claim any remedy or damages for such act by the defendant. The defendant shall not be held for tortious liability. No person shall be allowed to enforce a right that he or she has voluntarily given up. This consent of the person may be expressed or implied.
An expressed consent is that in which a person verbally through spoken words or writing gives their consent for some act. For instance, trespass (entering someone’s property without their permission) is a tort for which the defendant can be held liable. However, the plaintiff cannot claim damages if he or she himself or herself has invited someone to his or her house. Similarly, a person cannot sue their surgeon for performing a surgical procedure on them as the person has himself or herself provided consent to be operated upon.
An implied consent is that which can be inferred from the act of the conduct of the parties. For instance, sportspersons who have chosen to play sports in which some harm is most likely to occur in the usual course of the sport of game. Examples of such sports may be cricket, football, rugby, etc. Similarly, a spectator who buys a ticket to watch a game of cricket has given. His or her implied consent to the harm caused by the ball.
In the case of Hall v. Brooklands Auto-Racing Club (1933),[2] The plaintiff was a part of the audience of a car race held on a track at Brooklands which was owned by the defendant. While the race was being held, two of the race cars struck with each other, resulting in one of the cars being flown off to the spectators’ gallery and resulting in an injury to the plaintiff. The court, in its judgement, expressed that the plaintiff himself gave his implied consent to being injured as in such a scenario the risk was not unforeseen and the plaintiff voluntarily gave his free consent to be in danger.[3]
Furthermore, in the case of Padmavati v. Dugganaika (1975),[4] a jeep driver was carrying a few litres of petrol to a project site. On the way, two strangers asked for the lift and boarded the jeep. In the course of the journey, one of the front wheel axles broke and both the strangers were tossed out of the jeep resulting in death on the spot for one of them. The court in its judgement expressed that neither the driver nor his employer can be held accountable because the two strangers had themselves given their consent to the potential risk by getting into the jeep.[5]
LIMIT OF THE CONSENT
The consent of the plaintiff must be free. This means that the consent obtained through undue influence, coercion, fraud, misrepresentation, mistake, etc will not be considered as free consent. It must also be noted that the defendant can claim the defence of consent if the harm has happened within the scope of the consent. If the harm is beyond the scope of the consent, the defendant cannot claim the defence. For instance, during a football game, if a player gets hurt during the usual course of the game, the player cannot claim damages as he or she had given his or her consent to it, however, if another player deliberately inflicts harm on the plaintiff, the wrongdoer cannot claim defence of consent and shall be appropriately liable.
IF THE PLAINTIFF IS INCAPABLE OF PROVIDING CONSENT?
When the person is incapable of providing consent to medical treatment because the said person is a minor, or of unsound mind or any other incapability, consent of the parent or guardian shall be obtained. Such consent is sufficient even if the said person is protesting against such treatment.
SCIENTI NON-FIT INJURIA
It becomes difficult to predict the scope of the consent in such cases where the person had the knowledge of the risk but might not have given consent to run the risk of harm. Therefore, the legal maxim of scienti non fit injuria, says that mere knowledge of the risk does not always amount to consent. The maxim supports that the plaintiff had knowledge of the risk and gave his or her consent based on that knowledge.[6]
In the landmark case of Thomas v. Quartermaine (1887),[7] The plaintiff was a worker in the brewery of the defendant. While trying to separate a cap from a boiling tank of water, the cap got stuck and the plaintiff had to apply an extreme amount of force to remove the cap. While adding the extra amount of pressure, the plaintiff got thrown into the vessel that had the burning hot fluid. As a result, he suffered some serious injuries due to the same. It was asserted by the defendants that the plaintiff had been known of the potential risks of working in such a workplace. But we must note that even though the plaintiff had full knowledge of the risk, he did not give his consent to being harmed. However, the court applied the principle of volenti not fit injuria and held that the defendant cannot be held accountable for the injury endured by the plaintiff.
However, this decision of the court was rectified in the case of Smith v. Baker & Sons (1891),[8] In which the plaintiff was an employee of Baker & Sons. The plaintiff worked in a rock-cutting site near a crane which often held heavy stones over the working site without issuing a proper warning to the workers. Both the plaintiff and his supervisors were aware of the potential risk involved, that is, the falling of stones from the crane. One day, while working on the site, the plaintiff suffered some injuries caused by the stone which fell from the crane. The defendant argued that the principle of “volenti non-fit injuria” should be applied (as in the previous case of Thomas v. Quartermaine (1887)[9] Held by Baron Bowen) in this case, as the plaintiff, Smith was aware of the risk involved in the work and voluntarily assumed the risk. However, the House of Lords emphasised that just because someone is aware of the risk involved in a scenario, it does not automatically imply their consent to that risk. In this case, the plaintiff’s knowledge of the danger does not imply that he accepted the harm caused by it. Therefore, the defendant was made accountable for the injury endured by the plaintiff, Smith.[10]
CONCLUSION
In conclusion, it is essential to differentiate between the two concepts of volenti non-fit injuria and scientists non fit injuria to determine the extent of the consent of the plaintiff. By this, the courts can ensure that persons involved in a case are held liable for their actions and promote justice and equity.
Author(s) Name: Xara Behzaad (Alliance University, Bengaluru)
References:
[1] ‘Volenti Non-Fit Injuria’ (Legal Information Institute) <https://www.law.cornell.edu/wex/volenti_non_fit_injuria#:~:text=Volenti%20non%20fit%20injuria%20is,assumption%20of%20the%20risk%20doctrine.> accessed 13 June 2024
[2] Hall v Brooklands Auto-Racing Club [1933] 1 KB 205
[3] Ltd AA, ‘Hall v Brooklands Auto-Racing Club’ (Law Teacher, 6 November 2023) <https://www.lawteacher.net/cases/hall-v-brooklands.php> accessed 13 June 2024
[4] Padmavati v Dugganaika [1975] ACJ 222
[5] ‘Padmavathi v. Dugganaika, Karnataka High Court, Judgment, Law, Casemine.Com’ (https://www.casemine.com) accessed 13 June 2024
[6] Manupatra, ‘Manupatra’ (Articles) <https://articles.manupatra.com/article-details/Volenti-Non-Fit-Injuria-An-Analysi> accessed 13 June 2024
[7] Thomas v Quartermaine [1887] 18 QBD 685
[8] Smith v. Baker & Sons [1891] AC 325
[9] Thomas v Quartermaine (n 7)
[10] (Law of torts – chapter 5) <http://student.manupatra.com/Academic/Abk/Law-of-Torts/Chapter5.htm> accessed 13 June 2024
