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Defence of Consent (Volenti Non Fit Injuria)

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The word “Tort” is of a French origin which has been further derived from the Latin word “Tortum” meaning “to twist” and implies conduct which is tortious4or twisted. It is a species of civil injury or wrong. A tort is a wrongful act or an infringement of a right (other than under contract) leading to legal liability and for which civil courts award compensation. Section 2 of Limitation Act 163 defines it as ‘a civil wrong which is not exclusively the breach of contract or breach of trust’. For example, to stop or obstruct a person to perform his legal right is a tort. (Case Ashby v. White), In this article, we shall discuss the concept of tort and law of tort. In tort law, a defence is a legal justification or excuse that a defendant may raise to avoid liability for committing a tort (a wrongful act). These defences either negate the elements of the tort or justify the defendant’s actions under the circumstances. In this article, let us discuss the defence of consent.

General Defences in Tort Law:

In tort law, several defences are available to a defendant who is being sued for a tort. These defences can either completely absolve liability or reduce the amount of damages. Here’s a list of common defences in tort:

  • Consent (Volenti Non Fit Injuria): If the plaintiff consented to the act that caused the harm, the defendant may not be liable. Consent can be express or implied.
  • Self-Defence: A defendant can avoid liability by proving that the tortious act was necessary to protect themselves from harm. The force used must be reasonable and proportionate to the threat.
  • Defence of Others: Similar to self-defence, a defendant may claim they acted to protect someone else from harm. Again, the force used must be reasonable.
  • Defence of Property: A person is allowed to use reasonable force to protect their property. However, the force must be proportional and not excessive.
  • Necessity: This defence applies when a tortious act was done to prevent greater harm to the defendant, others, or property. For example, trespassing to escape an imminent danger may be excused under necessity.
  • Statutory Authority: If the defendant was acting under statutory authority (i.e., following the law or legal procedures), they may be excused from liability, even if harm resulted.
  • Contributory Negligence: If the plaintiff’s own negligence contributed to their injury, they may be barred from recovering damages (in jurisdictions that still recognize contributory negligence as a complete defence).
  • Comparative Negligence: Similar to contributory negligence, but in this case, damages are apportioned based on the relative fault of the plaintiff and defendant. The plaintiff’s recovery may be reduced but not entirely barred.
  • Act of God (Force Majeure): A defendant may avoid liability if the harm was caused by an extraordinary natural event (such as a flood, earthquake, or storm) that was unforeseeable and unavoidable.
  • Inevitable Accident: This defence asserts that the incident causing harm was unavoidable, even with reasonable care, and therefore, the defendant should not be held liable.
  • Mistake: A defendant may argue that the tortious act was the result of a mistake, but this defence is generally weak unless the mistake was reasonable and unavoidable.
  • Private Defence: A person may defend themselves or their property against the wrongful acts of others, provided the defence is proportionate to the threat.
  • Duress: A defendant may claim they were forced to commit a tort due to the threat of harm, making their actions involuntary.
  • Illegality (Ex Turpi Causa Non Oritur Actio): If the plaintiff was involved in illegal activity at the time of the tort, the defendant might avoid liability on the basis that a claim cannot arise from the plaintiff’s wrongful conduct.
  • Limitation Period (Statute of Limitations): A claim in tort must be brought within a specified time period. If the plaintiff files the claim too late, the defendant can raise the limitation period as a defence.

Each of these defences has its own criteria and conditions, and their applicability depends on the jurisdiction and the specific circumstances of the case.

Defence of Consent

Defence of Consent (Volenti Non Fit Injuria):

Volenti non fit injuria is a Latin legal maxim that means “to a willing person, no injury is done.” It is a fundamental principle in tort law, particularly used as a defence, where the defendant argues that the plaintiff voluntarily assumed the risk of harm and therefore cannot claim damages for injuries arising from the defendant’s actions.

Key Ingredients of Volenti Non Fit Injuria:

  • Knowledge of the Risk: The plaintiff must have had full knowledge and understanding of the risk involved. This includes not only awareness of the danger but also an appreciation of the nature and extent of the risk. It must be shown that the risk was obvious or had been explicitly communicated to the plaintiff.
  • Voluntary Assumption of Risk: The plaintiff must voluntarily accept the risk. This means the plaintiff willingly exposed themselves to the risk without any coercion or pressure. Consent to the risk can be express (explicitly stated) or implied (inferred from the circumstances). For example, a person participating in a dangerous sport like rugby may be deemed to have consented to the normal risks associated with the activity.
  • Agreement to Relinquish Legal Rights: By accepting the risk, the plaintiff is essentially agreeing to relinquish their legal right to bring a claim against the defendant for injuries arising from that risk. This agreement can be express (e.g., signing a waiver or contract) or implied (e.g., engaging in an inherently dangerous activity with full knowledge of the risk).

Application in Torts:

  • Sports Injuries: One of the most common applications of volenti non fit injuria is in sports. Players who participate in contact sports like rugby or football are deemed to have consented to the ordinary risks of the game (e.g., physical injuries), provided the injuries arise from the normal course of play.
  • Dangerous Activities: When individuals willingly participate in activities that carry inherent risks, such as skydiving, rock climbing, or motor racing, they are often considered to have accepted the risk, barring any negligence or unusual risks that were not part of the activity.
  • Medical Procedures: In medical law, if a patient gives informed consent to a surgical procedure after being fully informed of the risks, they generally cannot sue the doctor for injuries resulting from those risks unless there was negligence involved.

Limits and Exceptions:

  • No Consent to Illegal Acts: Volenti does not apply if the plaintiff consents to an illegal activity. For instance, if the defendant’s act was unlawful, the defence may not be valid, particularly in criminal acts or serious breaches of law.
  • Knowledge Alone is Not Sufficient: Merely knowing the risk is not enough to invoke volenti; the plaintiff must have voluntarily accepted it. If the plaintiff had no reasonable alternative but to accept the risk (e.g., in an emergency situation), the defence may not apply.
  • Exceeding the Scope of Consent: If the defendant’s actions go beyond the risk that the plaintiff consented to, the defence of volenti may not apply. For example, in a sport, consent to tackle does not imply consent to violent or excessive force outside the rules of the game.
  • Employer-Employee Relationship: In many cases involving workplace injuries, volenti is limited. Employees are often seen as having limited freedom to refuse dangerous work conditions, and courts are reluctant to imply that they voluntarily assumed the risk of injury in unsafe working environments.

Case Laws:

In Hall v. Brooklands Auto-Racing Club, [1933] 1 KB 205 case, where a spectator at a motor race was injured by a car that went off the track. The court held that by attending the event, the spectator voluntarily accepted the risk of such an accident, and therefore, the defence of volenti applied.

In Wooldridge v. Sumner, [1963] 2 QB 43 case, where a photographer at a horse race was injured when a horse ran out of control. The court ruled that the photographer had accepted the ordinary risks of being close to the action, and since there was no negligence on the part of the rider, the defence of volenti applied.

In ICI Ltd v Shatwell, [1965] AC 656 case, where two brothers, who worked as explosive handlers, ignored safety protocols and were injured. The court held that by willingly ignoring safety instructions, they had voluntarily assumed the risk, so the defence of volenti was successful.

In Padmavati v. Dugganika, MFA 242 of 1971 case, where a driver gave a lift to two strangers in a jeep while going for a petrol filling. Suddenly one of the bolts fixing the right front wheel to the axle came out and the Jeep went out of control resulting in the accident. Both the strangers were tossed away and one of them died while the other suffered serious injuries. It was held by the Karnataka High Court that the defendants cannot be held liable for the act as it was a sheer accident and the plaintiff voluntarily entered into a Jeep. Hence, the defence of Volenti non-fit injuria can be successfully pleaded.

In Lakshmi Rajan v. Malar Hospital Ltd, 1998 3 CPJ 586 case, where the complainant had a painful lump in her breast. The lump had nothing to do with the uterus but during surgery, her uterus was removed without any prior justification or consent. The defendant took the defence of Volenti non-fit injuria but was rejected. It was held by the court that the defendants were liable. As the court said that the patient’s consent for the said operation does not amount to the removal of the uterus.

Volenti non fit injuria is a powerful defence in tort law, but it is applied cautiously by courts. The key considerations are whether the plaintiff had full knowledge of the risks and whether they voluntarily accepted those risks. If these conditions a

Conclusion:

The defence of consent, encapsulated by the legal maxim volenti non fit injuria (“to one who consents, no harm is done”), plays a crucial role in tort law. It allows a defendant to avoid liability by proving that the plaintiff willingly consented to the risk of harm or the tortious act itself. Consent can be explicit, such as through written or verbal agreement, or implied, where conduct suggests acceptance of risk. For the defence to succeed, the consent must be informed and voluntary, meaning the plaintiff must have full knowledge of the risk involved and freely accept it without coercion.

However, consent is not a blanket defence. It is ineffective in cases where the consent is obtained through fraud, misrepresentation, or where the activity is illegal (e.g., consenting to serious bodily harm in illegal activities). Moreover, the scope of consent is critical—if the defendant’s actions go beyond what the plaintiff consented to, the defence fails.

Overall, consent serves as an important defence in balancing personal autonomy and legal responsibility. It reflects the idea that individuals have the right to control their involvement in activities that might harm them, but only when done with full awareness and willingness. Courts carefully scrutinize claims of consent to ensure fairness and accountability.

Related Topics:

General Defences in Tort Law

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