CONTENTS

ACKNOWLEDGEMENT
TABLE OF CASES
INTRODUCTION OF TORTS
DEFINITION OF VOLENTI NON FIT
INJURIA
DIFFERENCE BETWEEN VOLENTI NON
FIT INJURIA AND CONTRIBUTORY
NEGLIGENCE

Acknowledgement
Firstly, I would like to express my profound sense of gratitude towards
the almighty for providing me with the authentic circumstances which were
mandatory for the completion of my project.
Secondly, I am highly indebted Mrs.ManjulaBatra at Faculty of Law,
JamiaMilliaIslamia University, New Delhi for providing me with constant
encouragement and guidance throughout the preparation of this project.
My cardinal thanks are also for my parents, friends and all teachers of law
department in our college who have always been the source of my inspiration
and motivation without which I would have never been able to unabridged my
project

TABLE OF CASES
Brooklands auto racing club (1932) All
E.R. rep. 208
Padmavati vs Dugganaika (1975) 1
Kam. L.J. 93
Wooldrige vs Sumner (1963) 2 Q.B. 43
Thomas v Quartermaine (1887) Q.B.D.
685
Illot v Wilkes (1820) 3 B Ald 304
Lakshami Rajan v Malar Hospital Ltd.
III (1998) CPJ 586
Hegarty v Shine (1878) 2 L.R. IR. 273
R. v Williams(1923) 1 K.B. 340
R. v Clarence (1888) 22 Q.B.D. 23
Bowater v. Rowley regis co. (1944)
K.B. 476
Smith v. Baker (1891) A.C. 325
Imperial chemical industries v.
Shatwell (1965) A.C. 656
Dann v. Hamilton (1939) 1 K.B 509
Dawrant v. Nutt (1961) 1 W.L.R 253
Slater v. Clay cross co. Ltd. (1956) 2
All E.R 625
Hanes v. Harwood (1935) 1 K.B 146

 Wagner v. International Railways

(1921) 232 N.Y 176
Cutler v. United Dairies (1933) K.B 297
Baker v. T.E Hopkins and sons (1959)
W.L.R 966

INTRODUCTION OF TORTS

A tort is a civil wrong for which a remedy, usually compensation, is

available to the wronged person in the civil courts. In the Law of Torts, duties
are owed to persons in various circumstances, and liability for negligent or
wrongful action is imposed by law. For example, a duty of care to other road
users is imposed by law on all drivers. An occupier of property owes a duty of
care to all visitors on his premises. This is different from obligations in a
contract where the parties voluntarily agree to be bound. The occupier of
property and the driver of a vehicle cannot escape liability for breaching their
duties, although they may be able to cover losses through insurance. Where
persons are insured, the insurance company usually steps into the shoes of the
insured and, in the event of a legal action, it is the insurance company that
settles any claims. The primary function of the Law of Torts is to provide
remedies to claimants who have suffered harm, loss, or an infringement of
rights. The harm includes physical injury to persons or property, damage to
persons reputations or financial interests, and interference with persons use
and enjoyment of their land. However, just suffering such a loss does not
necessarily mean the law will provide a remedy; a claimant must show that the
person committing the tort owed them a duty of care and that the tort caused the

loss. The Law of Torts covers a range of different civil wrongs including
negligence, trespass, nuisance, and defamation. Each tort has its own rules
about liability but most torts require an element of culpability, which means that
liability is only imposed on a person who intentionally or negligently acts or
fails to act in a particular manner. However, there are some torts, called strict
liability torts, which impose liability on a person even though they have not
been at fault in any way. In some situations, a person can be held strictly liable
for torts committed by another person. This liability is called vicarious liability
and it is particularly important in the business environment as employers may
be vicariously liable for the torts of their employees.

VOLENTI NON FIT INJURIA

Volenti non fit injuria is a defence of limited application in tort law. A
direct translation of the latin phrase volenti non fit injuria is, 'to one
who volunteers, no harm is done'. Where the defence of volenti applies it
operates as acomplete defence absolving the Defendant of all liability. It is
often stated that the Claimant consents to the the risk of harm, however,
the defence of volenti is much more limited in its application and should
not be confused with the defence of consent in relation to trespass. The
defence of volenti non fit injuria requires a freely entered and
voluntary agreement by the Claimant, in full knowledge of the
circumstances, to absolve the Defendant of all legal consequences
of their actions. There is a considerable overlap with contributory
negligence and since theintroduction of the Law Reform (Contributory
Negligence) Act 1945, the courts have been less willing to make a
finding of volenti preferring to apportion loss between the parties rather
than taking an all or nothing approach.
The requirements of the defence are thus:

1. A voluntary

2. Agreement
3. Made in full knowledge of the nature and extent of the risk.

1. Voluntary
The agreement must be voluntary and freely entered for the
defence of volenti non fit injuria to succeed. If the Claimant is not
in a position to exercise free choice, the defence will not succeed.
This element is most commonly seen in relation to employment
relationships, rescuers and suicide.

2. Agreement
The second requirement for the defence of volenti non fit injuria is
agreement. The agreement may be express or implied. An example of an
express agreement would be where there exists a contractual term or
notice. However, this would be subject to the controls of s.2 of the Unfair
Contract Terms Act 1977. An implied agreement may exist where the
Claimant's action in the circumstances demonstrates a willingness to
accept not only the physical risks but also the legal risks.
"Knowledge of the risk of injury is not enough. Nothing will suffice short of an agreement
to waive any claim for negligence. The plaintiff must agree expressly or impliedly to waive
any claim for any injury that may befall him due to the lack of reasonable care by the
defendant: or more accurately due to the failure by the defendant to measure up to the
duty of care which the law requires of him".

Smith v Baker & Sons [1891] AC 325

The Claimant sued his employers for injuries sustained while in the course
of working in their employment. He was EMPLOYED to hold a drill in
position whilst two other workers took it in turns to hit the drill with a
hammer. Next to where he was working another set of workers were
engaged in taking out stones and putting them into a steam CRANE
which swung over the place where the Claimant was working. The
Claimant was injured when a stone fell out of the crane and struck him
on the head. The Defendant raised the defence of volenti non fit injuria
in that the Claimant knew it was a dangerous practice and had

complained that it was dangerous but nevertheless continued. At trial the

jury found for the Claimant. The Defendant appealed and the Court of
Appeal allowed the appeal holding that the Claimant was precluded from
recovering as he had willingly accepted the risk. The Claimant appealed
to the House of Lords.
IT WAS HELD:
The appeal was allowed. The Claimant may have been aware of the
danger of THE JOB , but had not consented to the lack of care. He was
therefore entitled to recover damages.

White v Blackmore [1972] 3 WLR 296 Court of Appeal

Mr White was killed at a Jalopy car race due negligence in the
way the safety ropes were set up. A car crashed into the ropes
about 1/3 of a mile from the place where Mr White was standing.
Consequently he was catapulted 20 foot in the air and died from
the injuries received. Mr White was a driver in the race but at the
time of the incident he was between races and standing close to
his family. He had signed a competitors list which contained an
exclusion clause. There was also a warning sign at the entrance
to the grounds which stated that Jalopy racing is dangerous and
the organisers accept no liability for any injury including death
howsoever caused. The programme also contained a similar
clause. His widow brought an action against the organiser of the
event who defended on the grounds of volenti and that they had
effectively excluded liability.
Held:
The defence of volenti was unsuccessful. Whilst it he may have

been volens in relation to the risks inherent in Jalopy racing, he

had not accepted the risk of the negligent construction of the
ropes. However the defendant had successfully excluded liability
(Lord Denning MR dissenting)

Lord Denning MR:

"The Act preserves the doctrine of volenti non fit injuria. It says in
Section 2(5) that: "the common duty of care does not impose on
an occupier any obligation to a visitor in respect of risks willingly
accepted as his by the visitor".
No doubt the visitor takes on himself the risks inherent in motor
racing, but he does not take on himself the risk of injury due to
the defaults of the organisers. People go to race meetings to
enjoy the sport. They like to see the competitors taking risks, but
they do not like to take risks on themselves, even though it is a
dangerous sport, they expect, and rightly expect, the organisers
to erect proper barriers, to provide proper enclosures, and to do
all that is reasonable to ensure their safety. If the organisers do
everything that is reasonable, they are not liable if a racing car
leaps the barriers and crashes into the crowd - see Hall v.
Brooklands (1933) 1 K.B. 206. But, if the organisers fail to take
reasonable precautions, they cannot excuse themselves from
liability by invoking the doctrine ofvolenti non fit injuria: for the
simple reason that the person injured or killed does not willingly
accept the risks arising from their want of reasonable care,
see Slater v. Clay Cross Co.(1956) 2 Q.B.20B;Wooldridge v.
Summer (1963) 2 Q.B. at page 69; Nettleship v. Weston (1971) 2
Q.B.
"In its application to questions between the EMPLOYER and the
employed, the maxim as now used generally imports that the
workman had either expressly or by implication agreed to take upon
himself the risks attendant upon the particular work which he was
engaged to perform, and from which he has suffered injury. The
question which has most frequently to be considered is not whether
he voluntarily and rashly exposed himself to injury, but whether he

agreed that, if injury should befall him, the risk was to be his and
not his masters.

3. Knowledge
The Claimant must have knowledge of the full nature and extent of the
risk that they ran:

Wooldridge v Sumner [1963] 2 QB 43

The claimant was a photographer at a horse show. He was
situated within THE RING of the horse show and not behind the
barriers where the spectators were housed. He was on a BENCH
with a Miss Smallwood who was a director of the company which
employed the Claimant. He had been taking little interest in the
proceedings and was not experienced in regard to horses. During
the competition, one of the horses, Work of Art owned by the
Defendant, came galloping at great speed towards the bench
where they were sitting. The Claimant took fright at the approach
of the galloping horse and attempted unsuccessfully to pull Miss
Smallwood off the bench. He stepped or fell back into the course
of the horse which passed three or few feet behind the bench,
and was knocked down. The Claimant brought anaction in
negligence arguing the rider had lost control of the horse and was
going too fast. The defendant raised the defence of volenti
non fit injuria.
Held:
There was no breach of duty so the Claimant's action failed. On
the issue of volenti non fit injuria it was held that consent to the
risk of injury was insufficient. There must be consent to the
breach of duty in full knowledge of the nature and extent of the
risk.

Diplock LJ:
"The maxim in English law presupposes a tortious act by the
defendant. The consent that is relevant is not consent to the risk
of injury but consent to the lack of reasonable care that may
produce that risk and requires on the part of the plaintiff at the
time at which he gives his consent full knowledge of the nature
and extent of the risk that he ran"

The test for this is subjective and not objective and in the context of an
intoxicated Claimant, the question is whether the Claimant was so
intoxicated that he was incapable of appreciating the nature of the risk:

Morris v Murray [1991] 2 QB 6

The Claimant and Defendant had been drinking all day. The
Defendant, who had a pilot licence and a light aircraft, suggested
that they took the aircraft for A FLIGHT . The Claimant agreed
and drove them both to the airfield. They started the engine and
the Defendant took off but crashed shortly after. The Defendant
was killed and the Claimant was seriously injured. An autopsy
revealed that the Defendant had consumed the equivalent of 17
Whiskeys. In an action for negligence, the Defendant raised the
defence of volenti non FIT injuria.
Held:
The defence was allowed. The ACTIONS of the Claimant in
accepting a ride in an aircraft from an obviously heavily
intoxicated pilot was so glaringly dangerous that he could be
taken to have voluntarily accepted the risk of injury and waived
the right to compensation.

MERE KNOWLEDGE DOES NOT IMPLY ASSENT

For the maxim volenti non fit injuria to apply, two points have to be
proved:
1. The plaintiff knew that the risk is there.
2. He,knowing the same agreed to suffer the harm.
If only first of these points is present,i.e. there is only the knowledge of
the risk,it is no defence because the maxim is volenti non fit
injuria.Merely because the plaintiff knows of the harm does not imply
that he assents to suffer it.

COURT OF APPEALBOWATER v ROWLEY REGIS

CORPORATION [1944] KB 476
March 27 1944
FACTS
The plaintiff, a carter employed to collect road sweepings by
amunicipal corporation, was ordered by his foreman to take
out a horsewhich, to the knowledge of both of them, had run
away on at least
two previous occasions when driven by a fellow employee. The carter
protested, but the foreman said that it was an order of the boroughsur
vey or. Some weeks later, the horse ran away and the
plaintiff was thrown from his cart and suffered personal
injuries. In an action againstthe corporation by the plaintiff,
alleging that they had failed in their dutyto provide him with a
horse which was safe and suitable for the work which he
had to perform.
SCOTT LJ
: With regard to the doctine volenti non fit injuria I
would add one reflection of a general kind. That general
maxim has to be applied withspecially careful regard to the
varying facts of human affairs and

humann a t u r e i n a n y p a r t i c u l a r c a s e j u s t b e c a u s e i
t i s c o n c e r n e d w i t h t h e intangible factors of mind and
will. For the purpose of the rule, if it be arule, a man cannot be
said to be truly willing unless he is in a position tochoose freely, and
freedom of choice predicates, not only full knowledgeof the
circumstances on which the exercise of choice is conditioned,
sothat he may be able to choose wisely, but the absence from
his mind of any feeling of constraint so that nothing shall
interfere with the
freedomo f h i s w i l l . W i t h o u t p u r p o r t i n g t o l a y d o w
n a n y r u l e o f u n i v e r s a l application, I venture to doubt
whether the maxim can very often apply incircumstances of an injury
to a servant by the negligence of his master
GODDARD LJ
: The maxim volenti non fit injuria is one which in the case of
master
Imperial Chemical Industries Ltd v Shatwell [1965] AC
656 House of Lords
The claimants were brothers who were qualified shotfirers
employed by the defendant. They were injured as a result of an
explosion at the defendant's quarry caused by the brothers'
negligence. They had insufficient wire to test a circuit to allow
them to test from a shelter. Another worker had gone to fetch
more wire but the brothers decided to go ahead and test with the
shorter wire. Each brother claimed against the defendant based
on their EMPLOYER'S
vicarious liability for the negligence
and breach of statutory duty of the other brother. The defendant
raised the defence ofvolenti non FIT injuria in that the brothers
had full knowledge of the risk and were acting against express
instructions. At trial the judge held that the defence
of volenti could not apply where there was breach of a statutory
duty. This was upheld in the Court of Appeal.
Held:
The appeal was allowed. The brothers had deliberately acted in

defiance of the EMPLOYER 's express instructions in full

knowledge of the risks. The workers were under the statutory
duty not the employer. The employer had been instrumental in
bringing in the statutory regulations and ensured all workers were
aware of them. They had also previously dismissed a worker for
flouting the regulations.

Limitations of the scope of Doctrine

The scope of application of the doctrine of volenti
non fit injuria has been curtailed
1.In rescue cases
2.By the Unfair contract terms Act 1977
In spite of the fact that the plaintiff has consented to
suffer the harm,he may still be entitled to his action
against the defendant in the exceptional cases
RESCUE CASES
A rescuer is not regarded as having freely and
voluntarily accepted the risk

Haynes v Harwood [1935] 1 KB 146

The Defendant left a horse-drawn van unattended in a
crowded street. The horses
bolted when a boy threw a stone at them. A POLICE
OFFICER
tried to stop the horses to save a

woman and children who were in the path of the

bolting horses. The police officer was injured. It was
held that the Defendant owed a duty of care as he had
created a source of danger by leaving his horses
unattended in a busy street.10
Cutler v United Dairies [1933] 2 KB 297
The Claimant was injured when he ENTERED a field to calm some horses.
His claim for compensation was unsuccessful as the horses presented no
immediate danger to persons or property and there was no need for him
to intervene. He was thus held to be volens.

When the defendant by his negligence has created

danger to the safety of A and he can foresee that
somebody else say B is likely to rescue A out of
danger , the defendant is liable to both A and B.each of
them can bring an action independently of the other.

VOLENTI NON FIT INJURIA AND CONTRIBUTORY

NEGLIGENCE....
At common law, contributory negligence acted as a complete
defence. However, contributory negligence operates as a partial
defence whereby the courts can apportion loss between the
parties. This makes it a more attractive option to the courts than
other defences which can operate harshly and absolve a
defendant of liability no matter how much at fault they may be.
Consequently the defences of volenti non fit injuria and ex turpi
causa are perhaps of less significance. Contributory
negligence will often succeed where other defences fail.

VOLENTI NON FIT INJURIA is a omplete defence.sice the passing

of the law reforms the defendents liability,in the case of
contributory negligence,is based on the proportion of his fault in
the matter. In such a case,therefore the damage which the
plaintiff can claim will be reduced to the extent the laimant
himself was to blame for the loss.

Slater v Clay Cross Co Ltd [1956] 2 QB 264

DENNING LJ:
In Derbyshire there has been for well over a hundred years a railway line
owned by the defendants. We were told that George Stephenson himself
made it. The defendants use it so as to carry limestone from their
quarries at Crich down to Ambergate. It is a small gauge line, only three
feet, three inches wide, and is 2 1/2 miles long. On that small line there
are two tunnels. One of them, with which we are concerned, is only
about eight feet or nine feet high, and it is just sixty-six yards long. On 12
February 1953, the plaintiff was walking through the tunnel when she
suddenly realised that a train was coming up behind her. She got down
on to the ground to seek what safety she could, but unfortunately the
train ran over one of her legs and cut it off. She now claims damages
against the defendants saying that it was their fault.
If she were a trespasser on this railway, she would, of course, have no
cause of action; but she says that the defendants had acquiesced for
years in the villagers of Crich walking along this railway down to
Ambergate and back. It was a short cut for them. The defendants had
done nothing at all to show that they resented the villagers using it, and
the villagers had in fact used it for years. The judge has found, and I
think there can be no doubt, that she was what we call in law a licensee not a trespasser who was unlawfully there, but a person who was
permitted and allowed by the owners to be there - not for any matter in
which they had an interest, but only for her own purposes.

BIBLIOGRAPHY

R.K BANGIA 23 edition 2013

E-lawresources.co.uk/vnfi
www.wikipedia.com
www.indiankanoon.org

VARIOUS DEFENCCES IN TORTSThere are mainly eight general defences in law

of torts which are as follows.
I.
II.
III.
IV.
V.
VI.
VII.
VIII.

VOLENTI NON FIT INJURIA

PLAINTIFF WRONGDOER
INEVITABLE ACIDENTS
ACT OF GOD
PRIVATE DEFENCE
MISTAKE
NECESSITY
STATOTORY AUTHORITY

When the plaintiff brings an action against the defendant for

a particular tort,providing the existence of all essential of that
torts,the defendant would be liable for the same.
The defendent may,however even in such a case avoid his
liability by taking the plea of some particular wrong,for eg in an
action for defamation, the peculiar to some particular wrong.

LAW OF TORTS

VOLENTI NON FIT INJURIA

Submitted to:dr.MANJULA BATRA

BY: MOHD RIYAZ AHMAD
B.A.L.L.B(HONS)
SEMESTER 1ST