The maxim “Volenti non fit injuria” means “that to which a man consents, cannot be complained of as an injury”. It means that no act is actionable as a tort at the suit of any person who has expressly or impliedly assented to it. A person who makes an agreement with another, either expressly or by implication, to run the risk of injury caused by that other, will not be permitted to complain and claim damages for any of the risks that he had to undergo.
The maxim has a two fold application:-
- It applies to intentional acts which would otherwise be tortious and refers to consent to an entry on land or goods, which would otherwise be trespass. It also includes consent to physical harm which would be assault as in the case of a boxing match or a surgical operation [R v. Donovan; (1934) 2 KB 498], or consent to the publication of a defamatory statement which would otherwise be actionable [Chapman v. Lord Ellesmere, (1939) 2 KB 431].
- It applies to consent to run the risks of accidental harm which would otherwise be actionable.
Thus spectators at sports meeting take upon themselves the risk of the perils thereat whether reasonably to be expected or improbable. In Hall v. Brooklands Auto Racing Club, (1933) 1 KB 205, where the plaintiff was a spectator at a car race and the defendant was owner of the truck, during the race two cars collided and one of them was thrown among the spectators as a result of which, the plaintiff got hurt. It was held that the plaintiff impliedly took the risk. The danger was inherent in the sport which any spectator could foresee. the defendants were held not liable.
For the defence of volenti non fit injuria to be invoked, the act causing the harm should not have gone beyond the limit of what had been consented to. The defence for volenti non fit injuria was successfully pleaded in the following cases:-
- Padmavati v. Duggaraika, where two strangers took lift in the jeep being taken by the driver to the petrol pump. On its way, the axle of the jeep gave away and the two strangers sustained injuries. One of them latter succumbed to the injuries. The court held that neither driver nor the master could be held liable because it was a case of pure accident and the two strangers had got into the jeep voluntarily.
- Wooldridge v. Sumner, where the plaintiff was a photographer and was taking photographs of a horse show standing at the boundary of the arena, the defendant was the owner of a horse participating in the show. The defendant’s horse rounded the bend too fast and galloped furiously. Plaintiff was frightened and fell into the horse’s course and was seriously injured. The court held that the defendants were not liable, since they had taken due care. The spectators of such events take the risk of such damage even though there may have been an error of judgment or lapse of skill. The duty of the defendant is that of due care and not of skill.
For the defence to be invoked, it is a must to establish that the plaintiff’s consent to take the risk was free and fair. If the consent is obtained by fraud or coercion the defence is not available. Also, the act done by the defendant must be the same for which the plaintiff had given his consent. Persons who are not capable of giving consent, i.e. the insane, the minor etc., their parents or guardians can give the consent.