DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

VISAKHAPATNAM, A.P., INDIA

PROJECT TITLE
DEFENCE OF VOLENTI NON FIT INJURIA

SUBJECT
LAW OF TORTS

NAME OF THE FACULTY

Dr. Sridevi. P
Associate professor

Name of the Candidate

Roll No. & Semester
M. Aruna Sri Satya, 2015067
Semester 1, Section A
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TABLE OF CONTENTS
1. INTRODUCTION.4
2. ELEMENTS OF THE DEFENCE ARE.4
2.1 KNOWLEDGE ABOUT THE RISK
2.2 ASSENT OR CONSENT
2.2.1 THE CONSENT MUST BE FREE
A) CONSENT OBTAINED BY FRAUD
B) CONSENT OBTAINED BY UNDUE INFLUENCE
C) CONSENT OBTAINED BY COMPULSION
3. KINDS OF CONSENT8
A) EXPRESS CONSENT
B) IMPLIED CONSENT
4. LIMITATIONS ON THE SCOPE OF DOCTRINE14
a) IN RESCUE CASES
b) BY THE UNFAIR CONTRACT TERMS ACT, 1977
5. CONCLUSION..20
6. BIBILIOGRAPHY21

ACKNOWLEDGEMENT:
I sincerely thank my torts prophesor Dr. Sridevi. P for giving me a golden opportunity to do a
project on volenti non fir injuria and for helping me to understand the topic more clearly. I tried
my level best to collect the information and make the topic as clear as possible.

1. INTRODUCTION
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 a complete defence absolving the Defendant of all
liability. It is often stated that the Claimant consents to 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 the introduction 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.
Volenti is sometimes described as the plaintiff "consenting to run a risk." In this
context, volenti can be distinguished from legal consent in that the latter can prevent
some torts arising in the first place. For example, consent to a medical procedure prevents the
procedure from being a trespass to the person, or consenting to a person visiting your land
prevents them from being a trespasser.1
2. ELEMENTS OF THE TORT
2.1 KNOWLEDGE ABOUT THE RISK
The plaintiff must have knowledge about the risk. He must be fully aware of the nature and
consequences of the work which he was going to do
THOMAS V. QUARTERMAINE
In this case the plaintiff, an employee in the defendants brewery, was trying to pull a lid from a
boiling vat. The lid was stuck and by the plaintiffs extra pull to it, it came of suddenly and
plaintiff fell back into the cooling vat which contained scalding liquid. Plaintiff got severely
injured. The majority of court appeal held that the defendant was not liable because the danger
was visible and the plaintiff appreciated and voluntarily encountered the same.
1http://www.duhaime.org/LegalDictionary/V/VolentiNonFitInjuria.aspx,12/10/15,6:00
pm
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IIOTT V WILKES
In this case the landowner placed spring guns in his land and he warned about the presence of the
spring guns. But a man entered his premises despite of the notice and got hurt because of the
spring guns. It was held that the defendant was not liable because in that era spring guns were
not illegal and he made a notice of the same.
SYLVESTER V CHAPMAN
The claimant reached over the barrier outside a leopard's cage to remove a cigarette smoldering
on a pile of straw. The leopard put its paw through the bars and scratched the claimant. The
claimant's claim failed as he had clearly accepted the risk, and he had not been rescuing anyone
from imminent danger.2
2.2 ASSENT OR CONSENT
When a person consents to the infliction of the some harm upon himself, he has no remedy for
that in tort. In case, the plaintiff voluntarily agrees to suffer some harm, he is not allowed to
complain for that and his consent serves as a good defence against him. No man can enforce a
right which he voluntarily waived or abandoned. Consent to suffer the harm may be express or
implied.
When you invite somebody to your house, you cannot sue him for trespass, nor can you sue the
surgeon after submitting to a surgical operation because you have expressly consented to these
acts. Similarly, no action for defamation can be brought by a person who agrees to the
publication of a matter defamatory of himself
2.2.1 THE CONSENT MUST BE FREE
For the defence to be available, it is necessary to show that the plaintiffs consent to the act done
by the defendant was free. If the consent of the plaintiff has been obtained by fraud or under
compulsion or under undue influence such consent does not serve as a good defence. Moreover,
the act done by the defendant must be the same for which the consent is given. Thus, if you
invite some person to your house, you cannot sue him for trespass when he enters your premises.
But, if the visitor goes to a place for which no consent is given, he will be liable for trespass. For
example, if a guest is requested to sit in the drawing room and without any authority or
2 http://law.justia.com/cases/washington/supreme-court/1974/428001.html,13/10/15,4:00pm
5

justification, he enters the bedroom, he would be liable for trespass and he cannot take the
defence of your house. Similarly, a postman has the implied consent of the resident of a building
to go up to a particular place to deliver the letters or goods. For his entry upto the particular, he
cannot be made liable. If the postman goes beyond that limits and enters the rooms of the house,
he would be liable for trespass
LAKSHMI RAJAN V. MALAR HOSPITAL LIMITED
In this case the complainant a married women, aged 40 years, noticed development of a painful
lump in her breast. The lump had no effect on her uterus, but during surgery, her uterus was
removed without any justification. It was held that the opposite party, i.e., the hospital, was liable
for deficiency in service. It was also held that the patients consent for the operation did not
imply her consent for the removal of the uterus.
When a person is incapable of giving his consent because of his insanity or minority, consent of
such patients guardians or parents is sufficient. Thus, a surgeon performing a surgical operation
of a child with the guardians consent is protected even though the child protests against the
operation.3
a)CONSENT OBTAINED BY FRAUD
Consent obtained by fraud is not real and that does not serve as a good defence. In the Irish case
of HEGARTY V. SHINE it was held that mere concealment of facts may not be such a fraud as
to vitiate consent.
HEGARTY V. SHINE
In this case the plaintiffs paramour infected with venereal disease and she, therefore, brought an
action for assault. The action failed partly on the grounds that mere non disclosure of facts is not
such a fraud as to vitiate consent, and partly on the ground ex turpi causa non oritur action it
means that from an immoral cause, no action arises. In some criminal cases it has been held that
mere submission to an intercourse does not imply consent, if the submission had been procured
3http://www.articlesbase.com/law-articles/general-defenses-in-tort3464984.html,14/10/15,9:00pm
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by fraud which included mistake in the mind of the victim as to the nature of the real nature of
the act done.
R. V. WILLIAMS
The accused, a music teacher, had sexual intercourse with a girl student of 16 years of age under
the pretence that his action was an operation to improve her voice. If, on the other hand, the
mistake done, it cannot be considered to be an element as vitiating the consent. He was held
guilty of rape.
R. V. CLARENCE
In this case the husband failed to make his wife aware of his condition and when the intercourse
with his wife he infected her with venereal disease. The wife brought an action against his
husband. But the court held that the husband was not liable even though he failed to inform his
wife about his condition. 4
b) CONSENT OBTAINED BY UNDUE INFLUENCE
Consent given under undue influence i.e. giving consent under the influence of others.
KASE V. FRENCH
French and his wife (D) bought a grocery store. French made a delivery to the home of Mrs.
Williams, a women in her eighties, and discovered that she had been injured in a fall. French and
his wife later agreed to take care of Mrs. Williams until she died. Williams later agreed to sell her
house and property to them for $ 40,000 at 1% interest with no down payment. The contract was
consummated with the knowledge of Mrs. Williams attorney and against his advice.
Kase (P), the administrator of Williams estate, sued to nullify the contract and to recover various
cash transfers occurred through undue influence. The trail court upheld the validity of the
contract on the basis that no confidential relationship was present between Mrs. Williams and
French. Kase appealed

4 http://www.thestudentroom.co.uk/showthread.php?t=1159318,20/10/15,7:00pm
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The court found that the trail court had been mistaken and that a confidential relationship
between P and D, which arose from Ds promise to take care of Williams. However, Mrs.
Williams was able to take care for herself and was mentally alert competent and has consulted
with the legal counsel prior to the sale. The properties was appraised at $35,000 and while in the
interest and down payment were favorable, Mrs. Williams was permitted to live there rent free
for two years. The court held that D had not taken unfair advantage of Mrs. Williams and let the
judgment of the trail courts stand.
c) CONSENT OBTAINED BY COMPULSION
Consent given under circumstances when the person does not have freedom of choice is not the
proper consent. A person may be compelled by situation to knowingly undertake some risky
work which, if he had a free choice, he would not have undertaken. That situation generally
comes in master servant relationship. The servant may sometimes faced with the situation of
either accepting the risky work or losing his job. If he agrees to the first alternative, it does not
necessarily imply that he had agreed to suffer the consequences of the risky job which he has
undertaken. Thus a man cannot be said to be truly willing unless he is an position to choose
freely, and freedom of knowledge predicates, not only full knowledge of the circumstances on
which the exercise of choice is conditional, so that he may be able to choose wisely, but the
absence of any feeling of constraint so that nothing shall interfere with the freedom of his will.
Thus, there is no volenti non fit injuria, when a servant is compelled to do some work in spite of
his protests. But, if a workman adopts a risky method of work, not because of compulsion of his
employer but of his own free will, he can be met with the defence of volenti non fit injuria.5
BOWATER V. ROWLEY REGIS CORPORATION
The plaintiff a cart driver was asked by the defendants foreman to drive a horse which to the
knowledge of both was liable to bolt. The plaintiff protested but ultimately took out the horse on
the obedience to the order. The horse bolted and the plaintiff was injured thereby. It was held that
maxim of volenti non fit injuria did not apply and the plaintiff was entitled to recover damages
3. KINDS OF CONSENT ARE
5 http://www.gyancentral.com/forum/law-preparation/legal-aptitudepreparation/7454-volenti-non-fit-injuria-legal-reasoning.html,20/10/15,9:00pm
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a) EXPRESS CONSENT
Explicit consent means clear and specifically stated Unambiguous and not implied. Openly
stated, usually made clear in a writing
SMITH V BAKER AND SONS
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 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 that it was a dangerous practice and had complained that it was dangerous but
nevertheless continued. At the trail the jury found for the complaint. 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. 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.6
b) IMPLIED CONSENT
Many a times, consent may be implied or inferred from the conduct of the parties. For example, a
player in the games of cricket or football is deemed to be agreeing to any hurt which may be
likely in the normal course of the game. Similarly, a person going on a highway is presumed to
consent to the risk of pure accidents. In the same way, a spectator at a cricket match or a motor
race cannot recover if he is hit by the ball or injured by a car coming on the track.
HALL V BROOKLAND
In this case the plaintiff was a spectator at a motor car race being held at Brooklands on a track
owned by the defendant company. During the race, there is a collision between two cars, one of
which was thrown among the spectators, there by injuring the plaintiff. It was held that the

6http://www.safetyphoto.co.uk/subsite/case%20q%20r%20s
%20t/smith_v_baker__sons.htm,21/10/15,5:00pm
9

plaintiff impliedly took the risk of such injury, the danger being inherent in the sport which any
spectator could foresee, the defendant was not liable.
PADMAVATI V DUGGANAIKA
In this case while the driver was taking the jeep for filling petrol in the tank, two strangers took
lift in the jeep. Suddenly one of the bolts fixing the right front wheel to the axle gave way
toppling the jeep. The two strangers were thrown out and sustained injuries, and one of them
died as a consequence of the same.
It was held that neither the driver nor his aster could be made liable, firstly, because it was a case
of sheer accident and, secondly, the strangers had voluntarily got into the jeep and such, the
principle of volenti non fit injuria was applicable in this case
WOOLDRIDGE V SUMNER
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 the regard 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 flight 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 an action 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. But there was no breach of duty so the claimants 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 that he was
involved in the work done by him.7
IMPERIAL CHEMICAL INDUSTRIES LTD V. SHATWELL

7 http://swarb.co.uk/wooldridge-v-sumner-ca-1963/,21/10/15,6:00pm
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In that case, two brothers, George Shatwell and James had been working in the defendants
quarry. They tried to test some detonators without taking requisite precautions and their act was
in contravention of statutory provisions and also the employers orders in the matter. The same
resulted in the explosion causing an injury to the plaintiff, George Shatwell. He brought an action
against the defendants (appellants) on the ground that his brother was equally responsible with
him for the accident and that the appellants were vicariously liable for his brothers conduct. One
of the defence pleaded by the appellants was volenti non fit injuria. The plaintiff argued that the
defence of volenti non fit injuria is not applicable where there is a breach of statutory obligation.
The House of Lords, however, rejected the respondents plea and granted the defence of volenti
non fit injuria.8
CONDON V. BASI
The claimant suffered a broken leg during a tackle from the defendant during a football match.
The claimant was playing for whittle wanderers and the defendant for the Khalso football club.
Both clubs were in the Leamington local league. The question for the court was the standard of
care expected of a football player. The court held that the standard of care varies according to the
level of expertise the player has. The defendant was in breach of duty as the tackle was reckless
even with regards the standard expected of a local league player. Whilst a participant can be
taken to accept the risks of injury inherent to such sporting activities they do not accept the risk
of injury which occurs outside the rules of the game.
BLAKE V. GALLOWAY
The claimant, a 15 year old boy, was out with four of his friends including the defendant. The
boys started throwing pieces of bark chippings and twigs at each other. The claimant did not join
in at first but then threw a piece of bark chipping at the defendant hitting him in the leg. The
defendant picked it up and threw it back at the claimant. The piece of bark struck the claimants
eye resulting in serious injury. The claimant brought an action contending that the injury was
caused by the battery and or negligence of the defendant. The defendant raised volenti non fit
injuria. The trail judge rejected the defence of volenti but held that the damages should be
reduced by 50% under the law reform act 1945.
8http://journals.cambridge.org/action/displayAbstract?
fromPage=online&aid=2953624,22/10/15,9:00pm
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MORRIS V. MURRAY
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. The court held that 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.9
PITTS V. HUNT:
The claimant, Mr. Pitts (aged 18), and Mr. Hunt (aged 16), were friends. They had been out for
an evening together. Mr. Hunt gave the claimant a lift on the back of his trail motorbike which
was a Suzuki 250cc. He had no license to ride the bike on the road, indeed the engine capacity
limit for a 16 year old to ride legally would be 5occ. He also had no tax or insurance. The pair
consumed alcohol at their destination and r Hunt was twice over the legal limit for driving.
Nevertheless, the pair embarked on their journey home on the motorcycle. Witnesses gave
evidence that the two were obviously very drunk and Hunt was driving recklessly and erratically.
He was zig zagging down the centre of an A road at great speed, with both the parties shouting
and jeering. Mr. Pitts was jeering Mr. Hunt on and encouraging the dangerous driving. At one
time, Mr. Hunt drove dangerously close to a witness in order to scare them. Unfortunately Mr.
Hunt hit an oncoming car when he was travelling at speed on the wrong side of the road. Mr.
Hunt was killed and the claimant was left permanently partially disabled. He brought an action
for the injuries sustained against the personal representatives of Mr. Hunt. In their defence they
raised the defenses of volenti non fit injuria, contributory negligence and ex turpi causa. The trail
judge held that the claimant could not recover based on the fact that ex turpi causa operated to
preclude the imposition of a duty of care and also that the claimant was 100% responsible for his
own injuries under the law reform (contributory negligence) act 1945. On the issue of volenti he
9http://catalogue.pearsoned.co.uk/assets/hip/gb/hip_gb_pearsonhighered/samplech
apter/Cooke_C09.pdf,23/10/15,7:00pm
12

held that s. 148(3) of the road traffic act1972 precluded the application of the defence. The
claimant appealed. It was held that ex turpi causa and public policy did operate to preclude the
imposition of a duty of care. The trail judge was wrong in principle in finding that the claimant
was 100% contributory negligence since the wording of the act precluded such a finding. S.
148(3) of the road traffic act did preclude the application of the defence of volenti non fit injuria.
NETTLESHIP V. WESTON
The defendant was a learner driver. She was taking lessons from a friend. The friend checked
that the defendants insurance covered her for passengers before agreeing to go out with her. On
one of the lessons Mrs. Weston turned a bend Mr. Nettleship told her to straighten the wheel but
Mrs. Waston panicked and failed to straighten the wheel. She approached the pavement and Mr.
Nettleship grabed the handbrake and tried to straighten the wheel but it was too late. She
mounted the pavement and hit a lamp post. Mr. Nettleship fractured his knee. The defendant
argued that the standard of care should be lowered for learner drivers and she also raised the
defence of volenti non fit injuria in that in agreeing to get in the car knowing she was a learner,
he had voluntarily accepted the risk. The court held that a learner driver is expected to meet the
same standard as a reasonable competent driver. Volenti did not apply as he had checked the
insurance cover which demonstrated he did not waive any rights to compensation. His damages
were reduced by 50% under the law reforms act 1945 to reflect the degree to which he was also
at fault.10
TITCHENER V. BRITISH RAILWAYS BOARD
The claimant a 15 year old girl was out walking with her boyfriend who was 16 years old. They
took a shortcut across the railway line and they were both hit by a train. He was killed and she
was seriously injured. There was a gap in the fence at the place where they crossed and there was
a pathway leading to this gap which suggested that there was repeated trespass. Also it was
accepted that either the defendant was aware of the gap or would have been aware upon
reasonable inspection. The defendant raised the defence of volenti under s.2 (3) of the occupiers
liability act 1960. It was held that the scope of the duty owed to trespassers varies on the

10 http://caselawcracker.com/2013/11/24/nettleship-v-weston/,24/10/15,5:00pm
13

circumstances. On the facts of this case the defendant did owe a duty of care the defence of
volenti under s.2 (3) would succeed.
According to Lord Ross: In my view the pursuers own evidence referred to above, along with
the other evidence in the case, is, in my opinion, sufficient to establish the defence of volenti non
fit injuria. Such defence is open to the defenders under section 2 (3) of the occupiers liability act
1960 and no duty under section 2 (1) of the act is imposed upon an occupier to a person entering
on the premises in respect of risks which that person has willingly accepted as his. The pursuer
here on her evidence was fully aware of the danger of crossing a line on which trains ran and in
my opinion she must be have taken to consented to assuming the risk. The person who takes a
chance necessarily consents to take what comes.
DANN V. HAMILTON:
The claimant was injured when she was a willing passenger in the car driven by Hamilton. He
had been drinking and the car involved in a serious crash which killed him. In a claim for
damages the defendant raised the defence of volenti non fit injuria in that in accepting the lift
knowing of his drunken condition. She had voluntarily accepted the risk. But the defence was
unsuccessful. The claimant was entitled to damages. According to Asquith J: there may be cases
in which the drunkenness of the driver at the material time is so extreme and so glaring that to
accept a lift from him is like engaging in an intrinsically and obviously dangerous occupation
intermeddling with an unexploded bomb or walking on the edge of unfenced cliff. It is not
necessary to decide whether in such a case the maxim volenti non fit injuria would apply for in
the present case. I find as a fact that the drivers degree of intoxication fell short of this degree.
4. LIMITATIONS ON THE SCOPE OF DOCTRINE
a) IN RESCUE CASES
Rescue cases form an exception to the application of the application of the of volenti non fit
injuria. When the plaintiff voluntarily encounters a risk to rescue somebody from an imminent

14

danger created by the wrongful act of the defendant, he cannot be met with the defence of volenti
non fit injuria.11
BAKER V. TE HOPKINS&SON LTD
Mr. Ward and Mr. Wileman were employed by the defendant Hopkins. They had been called to
clean out a well. The well was 50ft deep and 6ft wide Hopkins tested the atmosphere in the well
by putting a lighted candle down the well. The candle returned still lighted and thus he concluded
the atmosphere was fine. He and Ward then took a petrol motored pump down the well and
started it up and left the well leaving the engine running on its own. The motor ran for 1 hours
before it stopped of its own accord. Before leaving the site Mr. Hopkins told Mr. Ward and Mr.
Wileman not to go down the well until the fumes have cleared. The following morning Hopkins
again told the two not to go down the well until he had arrived on the site. In breach of these
orders Mr. Ward went down the well and was overcome by fumes. Mr. Wileman called for
assistance and went down the well after him. The claimant Dr. Baker then arrived on the scene.
He too went into the well to seek to rescue the two. Unfortunately all three died of carbon
monoxide poisoning. The defendant contended that the act of the doctor acted as a novus actus
interveniens and sought to invoke volenti non fit injuria. It was held that the doctors actions
were not a novus actus interveniens. It was foreseeable that if a defendant by his negligence
places another in peril that someone may come to his rescue and the doctors actions were not
unreasonable in the circumstances. The claimants action was not defeated by volenti non fit
injuria. He was and as such his actions did not count as freely and voluntarily accepting the risk.
According to Morris LJ: It was said that Dr. Baker had been unreasonably brave. If a rescuer
acts with a wanton disregard of his own safety. It might be that in some circumstances it might
be held that any injury to him was not the result of the negligence that caused the situation of
danger. Such a contention cannot be here asserted. Dr. Baker tied a strong rope round his body
and arranged for the rope to be held by those on the surface and arranged to maintain oral
communication with them. It must be remembered also that the chances of success of his attempt
would diminish moment by moment if he tarried. He in no way acted recklessly or negligently.
11
http://catalogue.pearsoned.co.uk/assets/hip/gb/hip_gb_pearsonhighered/samplecha
pter/Cooke_C09.pdf,24/10/15,7:00pm
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In this judgment the learned judge came to a correct conclusion in regard to the claim made by
his executors.12
CULTER V. UNITED DIARIES:
The claimant was injured when he entered a field to calm some horses. He then brought a claim
for compensation. But his claim for compensation was unsuccessful as the horses presented no
immediate danger to persons or property and there was no need for him intervene. So it is
considered as volenti non fit injuria.13
OGWO V. TAYLOR:
The defendant attempted to burn off from the fascia boards beneath the eaves of his house with a
blow lamp and in so doing set fire to the premises. The fire brigade were called and the claimant
an acting leading fireman and a colleague entered the house wearing breathing apparatus and the
usual firemans protective clothing and armed with a hose. The two firemen were able with the
aid of a step ladder to squeeze through a small hatch to get into the roof space. The heat within
the roof space was intense. The claimant suffered serious burn injuries to his upper body and face
from scalding steam which must have penetrated his protective clothing. It was held that a duty
of care was owed to professional fireman. There was no requirement that the risk be exceptional.
The defence of volenti had no application.
HAYNES V. HARWOOD:
The defendant left a horse drawn van unattended in a crowned street. The horses bolted when a
boy threw a stone of 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.

12https://emergencylaw.wordpress.com/2013/03/20/rescuers-do-not-contribute-totheir-own-injury/, 25/10/15,8:00pm
13http://www.bitsoflaw.org/tort/negligence/revision-note/degree/absolute-defenceconsent-volenti-non-fit-injuria,25/10/15,9:00pm
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b) BY THE UNFAIR CONTRACT TERMS ACT, 1977

The Unfair Contract Terms Act 1977 applies only to liability arising in the course of a business.
It does not therefore provide comprehensive protection against unfair terms. Also it provides for
specific instances of unfair terms. In particular, penalty clauses are outside its remit. The Unfair
Contract Terms Act provides different levels of protection. Some provisions provide absolute
protection whereas some will be subject to a consideration of whether the term was a reasonable
one to include. The Unfair Contract Terms Act extends beyond liability arising from contracts
and extends to tortious liability arising from negligence or liability arising from the Occupiers
Liability Act 1957.
The main provisions cover in this are:
s.2 - Exclusion of liability for negligence
s.3 - Exclusion of liability for breach of contract
s.4 - Liability to pay an indemnity
s.6 - Exclusion of liability in contracts for the sale of goods and hp
s.7 - Exclusion of liability in hire contracts
s.8 - Exclusion of liability arising from a misrepresentation
s.11 - Sets out the reasonableness test
Sch 2 - Provides further guidance on application of the reasonableness test where the contract is
a non-consumer contract and ss 6 or 7 are under consideration.
s.2 EXCLUSION LIABILITY FOR NEGLIGENCE
S.2 (1) provides that a business cannot exclude or restrict liability for death or personal injury
arising from negligence. This provision is absolute and not subject to the requirement of
reasonableness.

17

S.2 (2) provides that a business may exclude or restrict liability for other types of loss only if it is
reasonable to do so. The question of what is reasonable is decided by applying the
reasonableness test set out in s.11.
S.2 (3) provides that where a person is aware of an exclusion clause this is not to be taken as a
voluntary acceptance of risk.14
S.3 EXCLUSION LIABILITY FOR BREACH OF CONTRACT
S.3 applies where one party deals as a consumer or where there exists a standard form contract.
The provisions are subject to the reasonableness test in s.11 and provide restrictions on the other
party to the contract's ability to:
Exclude or restrict liability for breach of contract
Provide substantially different performance to that reasonably expected
Provide no performance at all
S.4 UNREASONABLE INDEMNITY CLAUSES
A person dealing as a consumer cannot be made to pay an unreasonable indemnity arising from
liability incurred as a result of breach of contract or negligence. - Subject to the reasonableness
test under s.11.
s.6 EXCLUSION OF LIABILITY IN CONTRACTS FOR THE SALE OF GOODS AND HP
S.6 is applies to contracts for the sale of goods and contracts of hire purchase. The provisions
relate to liability arising under the implied terms under the Sale of Goods Act 1979 and the
Supply of Goods (Implied Terms) Act 1973.
S.6 provides:
A party can never exclude liability relating to title - absolute - applies to both consumer and nonconsumer sales. In consumer sales a party can never exclude liability relating to description,
quality, fitness for purpose or sample - absolute.
14 http://www.legislation.gov.uk/ukpga/1977/50,26/10/15,8:00am
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In non-consumer sales a party can only exclude liability relating to quality, description, fitness
for purpose or sample where it is reasonable to do so. Reasonableness is judged under s.11
reasonableness test and the factors set out in Sch 2.15
S.7 EXCLUSION OF LIABILITY IN CONTRACTS OF HIRE
S.7 applies to contracts of hire and provides:
In consumer contracts provisions relating to description, sample, quality and fitness for purpose
cannot be excluded - absolute
In non-consumer sales the above provisions can only be excluded in so far as it is reasonable to
do so - reasonableness is decided by reference to the reasonableness test under s.11 and the
factors set out in sch 2.
Provision relating to title under s.2 Supply of Goods and Services Act 1982 cannot be excluded absolute.
S.8 LIABILITY ARISING FOR MISREPRESENTATION
S.8 amends s.3 of the Misrepresentation Act 1967 and makes provision for exclusion or
restriction of liability arising from a misrepresentation, subject to the requirement of the
reasonableness test under s.11 UCTA
S.11 THE REASONABLENESS TEST
The term is required to be a fair and reasonable one to include in the contract.
This is judged by all the circumstances which were known, or ought to have been known or in
the contemplation of the parties. The fairness and reasonableness is decided at the time the
contract is entered - not with hindsight knowing of the events which in fact occurred. Where the
term is restricting rather than excluding liability regard is to be had to the resources of the party
seeking to rely on the term and the availability of insurance. The burden is on the party seeking
to enforce the term to show that it was fair and reasonable.16

15http://christianlawfirm.co.uk/blog/?p=541,26/10/15,4:00pm
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Sch 2
Sch 2 provides the factors for the court to consider in applying the reasonableness test when
looking at non-consumer sales in relation to s.6 & 7 UCTA. The factors are:
The strength of the bargaining positions of the parties taking into account alternative suppliers
available to the purchaser. Whether the customer received an inducement to accept the term. Eg
were they given the opportunity to pay a higher price without the exclusion clause.
Whether the customer knew or ought to have known of the term and whether such terms are in
general use in a particular trade. Where exclusion relates to non performance of a condition
whether it was reasonably practicable to comply with the condition. Whether the goods were
made or adapted to the special order of the customer.
5. CONCLUSION
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 a complete defence absolving the Defendant of all
liability.
Volenti will arise only where the circumstances are such that it is clear that the plaintiff, knowing
of the virtually certain risk of harm, in essence bargained away his right to sue for injuries
incurred as a result of any negligence on the defendant's part.
The acceptance of risk may be express or may arise by necessary implication from the conduct of
the parties, but it will arise, in cases such as the present, only where there can truly be said to be
an understanding on the part of both parties that the defendant assumed no responsibility to take
due care for the safety of the plaintiff, and that the plaintiff did not expect him to.
Common sense dictates that only rarely will a plaintiff genuinely consent to accept the risk of the
defendant's negligence. 17

16 http://e-lawresources.co.uk/Unfair-Terms---Regulation-bystatute.php,26/10/15,7:00pm
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It is often stated that the Claimant consents to 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 the introduction of the Law Reform 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.
7. BIBILOGRAPHY:

R.K.Bangia (law of torts)-twenty second edition,2010-Allahabad Law Agency

Ramaswamy iyers the law of torts, tenth edition,2007-Lexis Nexis Butterworths

Wadhwa

Ratan lal and dheerajlal ,twenty sixth edition,2010- Nexis Butterworths Wadhwa

17 http://www.gyancentral.com/forum/law-preparation/legal-aptitudepreparation/7891-volenti-non-fit-injuria.html,27/10/15,6:00pm
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