Volenti Non Fit Injuria

VOLENTI NON FIT INJURIA VOLENTI NON FIT INJURIA By Muzamil Akhtar Shabir, Advocate Supreme Court 'Volenti non fit injuria' also known as 'leave and licence' is a principle of law, which may be pleaded as a defence against an action in torts initiated by the plaintiff against the defendant. In order to understand the meaning and scope of this legal term, we have to take into consideration the definitions and explanations given by various authors and court judgments. Meaning of the Maxim 'Volenti Non Fit Injuria'. Various meanings have been given to this term or phrase, some of which are as under: i. The Osborn's law dictionary1 defines "Volenti non fit injuria" as follows:- "That to which man consents cannot be considered an injury". ii. The legal study wizard2 defines "volenti non fit injuria" as follows:-- "Voluntary assumption of risk''. This deals with cases where a party willingly assumes the risk. iii. Wikipedia the free encyclopedia3 defines "volenti non fit injuria" as under: "Volenti non fit injuria (Latin: "to a willing person, no injury is done") is a common law doctrine which means that someone who knowingly and willingly puts himself in a dangerous situation will be unable to sue for his or her resulting injuries. It is sometimes described as the plaintiff "consenting to run a risk" but should be distinguished from consent which can prevent some torts arising in the first place (for example, consent to a medical procedure preventing the procedure being a trespass to the person, or consenting to a person visiting your land preventing them being a trespasser). For example, rugby and football players consent to the incidental contact that arises from the normal conduct of those sports, including the attendant risk of physical injury. In boxing matches, participants consent to the deliberate infliction of harm by their opponent. However, if a player goes outside the usual conduct of the sport, or a match official is negligent in letting play get out of control, then a claim may arise. It may be said that the standard of care in such cases has been altered, to increase the threshold of carelessness necessary to found a claim. In some cases, volenti overlaps with the contributory negligence, which can reduce the defendant's legal responsibility to take account of the culpability of the plaintiff." iv. The maxim "Volenti non fit injuria" as mentioned by Rattan Lal and Dhiraj La14 is as follows: "Harm suffered voluntarily does not constitute a legal injury and is not actionable".5 "Where sufferer is willing no harm is done". v. The maxim was considered in a judgment of the Supreme Court of Pakistan in the case of Ali Nawaz Gardezi6 and by Lahore High Court in a recent judgment of M/s United Exports Company,7 wherein the meaning of the maxim was mentioned in the following terms: "Person cannot complain of any act he passively assents to." On the basis of above mentioned definitions, it can easily be inferred that where a person has given his consent or has volunteered to take a risk, which not only he knows but is also cognizant that injury is likely to result, and he still consents to that risk, he cannot later turn around and damages, redress or compensation for that injury. No act is actionable as a tort at a suit of any person who has expressly or impliedly assented to it; no one can enforce a right which he has voluntarily waived or abandoned. Therefore, the principle of waiver or acquiescence is a basic part of this maxim. A man cannot complain of harm caused due to the chances, of which he has exposed himself to, with knowledge and of his free will. The maxim Volenti Non Fit Injuria is founded on good sense and justice. One who has assented to an act being done towards him cannot, when he suffers from it, complains of it as a wrong8. The maxim presupposes that there is a tortuous act by the defendant. This means that the plaintiff was fully aware of the risk that he was facing and still consented to take that risk. Application of the Maxim "Volenti Non fit Injuria". The maxim applies: Firstly, to intentional acts that would otherwise be tortuous and actionable, if consent was wanting. For example, a person who trespasses on the land of another with the knowledge that there are spring guns in the wood, but he still enters and by accidentally treading on the latent wire communicating with the gun and thereby letting it off gets injured, cannot claim damages for such injury. Similarly, a person suffering injuries arising out of dangerous sports such as boxing match, motor racing, wrestling, etc., cannot claim damages for an injury suffered by him. Secondly, the maxim applies to consent to run the risk of accidental harms which would otherwise be actionable. In such type of harms, in the absence of consent of the plaintiff, the defendant would be liable for a breach of duty of care. Consent exempts the defendants from the duty of care and hence excludes his liability for negligence. These include watching as a spectator motor racing9 or show jumpine10. Spectators of cricket, football, hockey, and polo matches, at motor races and flying meetings take upon themselves the risk of such peril as may reasonable be expected to occur at such meeting as well as the risk of improbable accidents11. Here by accident, if some injury is caused to the spectator, he cannot claim damages for such injury. Voluntary Assumption of Risk. Free will defences are only employable against agents who have the capacity to assume the risk12 Voluntary assumption of risk is of two types: . Defence of consent- where there is an agreement to assume the risk. . Volenti non fit injuria- where a party willingly assumes the risk. The element of Consent in the maxim "Volenti non Fit Injuria" Consent is the agreement of the plaintiff, express or implied, to exempt the defendant from the .duty of care which he otherwise would have owed.13 Express Consent: Consent is express, where a person submits to a surgical operation or invites a person to enter his premises. He cannot sue the surgeon for battery or the guest for trespass. Implied Consent: Consent will be implied where the injury complained of was incidental to the thing consent to. A player of a game of football or hockey cannot sue another for assault or injury arising in the course of the game. If, however, the injury was due to foul play or to a wilful assault not incidental to the game, it is actionable. However, the consent will not be implied when the risk is not necessary or unavoidable and is due to breach of duty as in the case of an employer to his servant e.g. to use due care to provide competent fellow servants and a safe system of work.14 The true questions for determination in every case are: Did the plaintiff give real consent to the assumption of the risk without compensation; did the consent really absolve the defendant from the duty to take care? Whether such consent has in fact been given is a question of fact for the jury, not of law for the Judge.15. The following principles are applicable to consent in the maxim "Volenti Non Fit Injuria". i. The consent must be voluntary and free. ii. Knowledge does not necessarily imply consent. iii. Consent must not be generally to illegal acts. iv. Consent or waiver must be in clear terms. v. Consent may be through passive assent. i. The consent must be voluntary and free. It means that if the plaintiff had no free choice or his consent had been obtained by fraud, coercion, misrepresentation, undue influence or mistake the maxim "Voleni non fit injuria" will not apply. The element of free choice is one of the pre-requisites for the application of the maxim. Lord Hudson in Imperial Chemical Industries Limited v. Shatwell16 observed as follows: "a man cannot be said to be truly willing unless he is in a position to choose freely and freedom of choice predicates not only full knowledge of the circumstances on which the exercise of choice is condition, so that they 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". There is no consent where a man acts under the compulsion of legal or moral duty.17 ii. Knowledge does not necessarily imply assent or consent. The claimant expressly (by his statement) or impliedly (by his actions) should have consented to waive all claims for damages: His knowledge of the risk is not sufficient: sciens non est volens ("knowing is not volunteering").18 It is said that the right maxim is "volenti non fit injuria" and not "scienti non fit injuria". This is to say that mere knowledge of the risk or danger is not sufficient. Knowledge of the risk is necessary but it alone cannot attract the application of the maxim. For application of the maxim, the plaintiff must not only have the knowledge but also the consent to run the risk. That is to say, "to be sciens is not enough. The plaintiff must also volens that is to say a real consent to the assumption of the risk without compensation must be shown by the circumstances19. For example, if the claimant had to exit a grocery store, and there was a sign warning of a wet floor by the exit, it is not usually a defence to say that the claimant knew of the risk of the wet floor, if the claimant had no other way to leave the store, and thus had to walk across the slippery surface in any event.20 Thus the maxim is not Scienti Non Fit Injuria but volenti. In the case of Smith v. Baker21. The plaintiff was employed by railway contractors to drill holes in a rock, where nearby a crane worked by men in the employment of the contractors. The crane lifted stones and at times swung over the plaintiffs head without warning. The plaintiff was fully aware of the danger to which he was exposed by thus working near the crane without any warning being given, and had been thus employed for months. A stone having fallen from the crane injured the plaintiff and he sued his employers in the County Court under the Employers Liability Act, 1880. It was held by the House of Lords, reversing the decision of the Court of Appeal (Lord Bramwell dissenting), that the mere fact that the plaintiff undertook and continued in the employment with full knowledge and understanding of the danger arising from the systematic neglect to give warning did not preclude him from recovering; that the evidence would justify a finding that the plaintiff did not voluntarily undertake the risk of injury; that the maxim "Volenti non fit injuria" did not apply; and that the action was maintainable. iii. Consent to Illegal acts. If a person is charged with a criminal offence, he cannot avoid his liability on the ground that the victim consented to commission of a crime. That is to say the maxim of Volenti Non Fit Injuria will not apply in such a case22 in which Swift J observed in the case of R. v. Donavon, "no person can license another to commit a crime". iv. Consent or waiver must be in clear terms. Consent or Waiver of liability must be in clear terms and not presumed., Waiver might be by (i) Exclusion clauses; (ii) Notice of disclaimer of responsibility. However the notice or clause must make it clear that the parties waive legal rights, not just agree to run the risk. In Nettleship v. Weston23 wherein the claimant agreed to give driving lessons to a learner. The learner crashed and the claimant was injured. The court held that the defence of Volenti non fit injuria was not available. v. Consent may be through passive assent. The maxim was considered by the Supreme Court and the Lahore High Court in the judgments passed in Syed Ali Nawaz Gardezi25 and M/s United Exports Company,26 wherein the meaning of the maxim was mentioned in the following terms: "Person cannot complain of any act he passively assents to." The Supreme Court of Pakistan in the case of Syed Ali Nawaz Gardezi observed as under: "Of course mere passive in action is not enough for finding of connivance but as was said by House of Lords in Gipps vv. Gipps27, 'conniving' means 'not merely refusing to see an act of adultery but also abstaining from any step to prevent adulterous course which, from what passed before the husband's eye must reasonably accept, will occur'. In Halsbury's Laws of England, Vol. 12, Third Edition, para 589, at page 297, it states that connivance is not limited to active conduct. "It includes the case where a spouse acquiesces in the adultery alleged, that it to say, where the spouse is aware that a certain result will follow, if he does nothing and desires the result to come about. On the principle of volenti non fit injuria a person cannot complain of any act he passively assents to". 28 Exceptions to the rule of the Maxim "Volenti non fit Injuria" i. Where there is no consent. ii. Where there may be consent but it is not free consent. iii. Act must not go beyond consent. iv. Consent to an illegal Act. v. The maxim does not apply to the cases of negligence. vi. The maxim does not apply where one's consent has not absolved the other from duty to take care. vii. The Maxim does not apply to rescue cases. . i. Where there is no consent. For the maxim of "Volenti non fit Injuria" to be applicable, consent of the defendant in the tortuous act is necessary. Where he has not consented to the injury, this defence is not available. The consent may be express or must be spelt out from the circumstances of the case. For application of the maxim, the plaintiff must not only have the knowledge but also the consent to run the risk. That is to say, "to be sciens is not enough. The plaintiff must also volens, that is to say a real consent to the assumption of the risk without compensation must be shown by the circumstances"29. Thus the maxim is not Scienti Non Fit Injuria but volenti non fit injuria. ii. Where there may be consent but it is not free consent. Lord Hudson in Imperial Chemical Industries Limited v. Shatwel130 has observes as follows "a man cannot be said to be truly willing unless he is in a position to choose freely and freedom of choice predicates not only full knowledge of the circumstances on which the exercise of choice is condition, so that they 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". There is no consent where a man acts under the compulsion of legal or moral duty31. iii. Act must not go beyond consent. In Laxmi Rajan v. Malar Hospita132, 1998, a 40 year old woman noticed a painful lump in her breast. The woman consented for a surgery to remove a lump from her breast. But the hospital removed her uterus as well without any genuine reason as it had no connection with the lump. It was held that removing of her uterus exceed beyond what she had consented for. iv. Consent to an illegal Act. If a person is charged with a criminal offence, he cannot avoid his liability on the ground that the victim consented to commission of a crime. That is to say the maxim of Volenti Non Fit Injuria will not apply in such a case33 in which Swift .1- observed in the case of R. v. Donavon, "no person can license another to commit a crime". iv. The maxim does not apply to the cases of negligence. The plea of volenti non fit injuria can succeed if the defendant establishes that the plaintiff consented to run the risk. But even when it is shown that the plaintiff assented to bear the risk, usually it does not include the negligence of the defendant. For example in Slater v. Clay Cross Co. Ltd.34, the plaintiff was struck by a train while she was lawfully walking along a narrow tunnel on a narrow railway track owned and occupied by the defendants. She was struck and injured due to the negligence of the driver. The defendants were held liable. Denning L.J observed: "When this lady walked in the tunnel, although it may be said that she voluntarily took the risk of danger from the running of the railway in the ordinary and accustomed way nevertheless she did not take the risk of negligence by the driver". Similarly if a person consults (or undergoes the treatment of) a medical practitioner and suffers some injury or harm, the medical practitioner will not be liable because the patient is deemed to consent to run the risk. But if the doctor is guilty of breach of duty to take necessary care or is otherwise negligent, he will be liable.35 In Wooldridge v. Sumner 1963, the plaintiff a photographer was taking photographs at the National Horse Show, during which one horse rounded the bend too fast. As the horse galloped furiously, the plaintiff was frightened and he fell in the course. He was seriously injured by one of the horses. The sole question was whether the rider had taken reasonable care. It was held that the defendants had taken proper care in closing the course and the plaintiff, by being in the show, agreed to take the risk of such an accident. The defendants were not held liable. Imposing of Liability requires a reckless regard for the spectator in such circumstances. 36 v. The maxim does not apply where one's consent has not absolved the other from duty to take care. Mr. Justice A. R. Sheikh in case titled Ghulam Qadir v. Hafiz Azim Bakhsh37 held that the Maxim 'Volenti non fit injuria' is not applicable where one's consent has not absolved the other from duty to take care. The facts of the case were that the house of the plaintiff was in front of the house of the defendant. A settlement was reached between the parties before Conciliation Court, whereby the defendant had constructed a cemented drain behind the back of the plaintiff's house for removing waste water from the house of the defendant. Although the drain was cemented, it caused damage to the property of the plaintiff due to leakage and seepage. Plaintiff filed a suit for damages and permanent injunctions, the defendant took the plea of consent for construction of drain. The court held that the plaintiff had no doubt agreed to the construction of the drain at the back of his house, but he had nowhere agreed to have a drain which is not leak proof or which would result in regular percolation and seepage of water in the foundations of his house resulting in cracks. Resultantly, the case of the plaintiff was decreed. . vi. The Maxim does not apply to rescue cases. Volenti non fit injuria does not apply to rescue cases. In a rescue case although the plaintiff voluntarily takes a risk to save somebody from the danger caused by the wrongful act of the defendant, yet the defendant will not succeed on the plea of Volenti non fit injuria. In Haynes v. Hardwood38 the defendant left a horse-drawn van unattended on the highway. A mischievous boy threw a stone at the horses. The horses started running suddenly. A policeman (plaintiff) saw the horses and in order to save several persons on the street who were in danger of being injured, he darted out and seized one of the horses and succeeded in pulling them up. But in doing so he himself was seriously injured. It was held that the defendant was liable. The defence of Volenti non fit injuria does not succeed in the rescue cases due to the following reasons: i. Firstly, it is now clear that he founds upon a duty owed directly to himself by the defendant, and not upon one derived from that owed to the person imperiled, for he may recover notwithstanding that the person imperiled is a trespasser and has no claim. ii. Secondly, a rescuer acts under the impulse of duty, legal, moral or social which is essential to the success of the defence. iii. Thirdly, the plaintiff does not assent to the defendants negligence at all, and indeed, may be wholly ignorant or if at the time, all he knows is that someone is in a position of peril, which calls for his intervention as a rescuer.39 Application of the Maxim "Volenti Non fit Injuria" to other laws. Usually the scope of the Maxim volenti non fit injuria' is applied to cases of Tort, the courts have extended its scope to other laws as well. For instance the same has been used by the Pakistan Courts in Tax and Criminal matters as well. The application of the Maxim to other laws by courts is discussed below: (a) Criminal Cases: Before the Islamization of Criminal Law in Pakistan, the Principle of 'volenti non fit injuria' was applied in a criminal case titled Ali Nawaz Gardezi v. Muhammad Yousaf,40 arising out of a private complaint by the husband of a woman who was enticed away for the purpose of adultery. While acquitting the accused person of charge of Adultery with wife of the complainant, under section 497 P.P.C., where there was connivance on the part of the complainant, although the accused was convicted under section 498, P.P.C. relating to enticing and taking away the wife of the complainant for the purpose of adultery. The Court observed as under:-- "With regard to the charge under section 497 P.P.C. it may be observed that the respondent has apparently committed adultery with , when she was the wife of the complainant, the charge must fail on the ground that there was connivance on the part of the complainant The letter which he wrote to her when they had reached Quetta, is tell tale evidence of his connivance to the adultery which he knew was being committed with his wife but took no step to prevent On the principle of volenti non fit injuria, a person cannot complain of any act, he passively assents to. It is to be remembered that in the letter, the complainant even wished his wife happiness in new life, knowing that she was living in adultery with the respondent. In the circumstances it is difficult to maintain that the respondent was guilty of an offence under section 497, P.P.C. After the Islamization of Criminal law in Pakistan, the afore-referred legal position may not be available in a case arising out of offence of adultery or other offences of the like nature. The defence of volenti non fit injuria may, however, still be available in cases arising out of other offences, relating to personal wrong, where the cause to file complaint vests solely in the complainant as the offence is not against the State or General public (where any person can initiate the process of law). (b) Tax Cases: In a case titled M/s United Exports Company, Karachi v. Regional Tax Officer41, the principle of 'volenti non fit injuria' has been applied to a matter arising out of Sales Tax Act, 1990. In this case the Company was an assessee of Sales Tax and had evaded sales tax by filing undervalued returns and become a defaulter and liable to payment of sales tax, additional tax and penalty along with liability to be prosecuted for offences prescribed under the Sales Tax Act. During the pendency of the proceedings an amnesty scheme was issued wherein any assessee availing the benefit of scheme would be exempt from criminal prosecution if the principal tax along with prescribed portion of additional tax is paid by it. However, one of the clauses of the scheme was that if any amount in excess of the amount of portion of tax as calculated as per incentive scheme has already been paid, same shall not be refunded. The assessee availed the scheme and resultantly was saved from clauses prosecution for criminal offences. However, in a suit filed the assessee auditors were appointed by the court, who calculated that excess amount had been paid by the assessee and resultantly the assessee raised demand for refund on the ground that the refund was legally available to him as per law and the amnesty scheme could not be, a hurdle in its way. The court by taking into consideration the principle of `volenti non fit injuria' held that 'person cannot complain of an act he has passively assented to'. While applying relief in the amnesty scheme the company was aware of the fact that amount in excess of what was due under the scheme had already been paid and therefore, the assessee had passively assented to non-refund of the same amount while availing the scheme and being protected from criminal prosecution as per terms of the scheme. Now, after taking the benefit of the scheme he cannot turn around and say that the refund was legally available to the Company under the law and hence the same should be allowed to it. The petition of the assessee relating to refund was dismissed in circumstances. DISTINCTION BETWEEN CONSENT AND CONTRIBUTORY EGLIGENCE. The effect of consent is to negative a duty of care on the part of the defendant to avoid the particular harm consented to by the plaintiff Conversely, a finding of negligence implies that there was no consent.42 On the other hand, the defence of contributory negligence assumes that there was negligence or a breach of duty of the defendant but denies the casual connection between the breach of duty and plaintiff's injury.43 The two defences may however, overlap in particular cases Decision of House of Lords given in ICI v. Shatwell is an illustration of the defence of consent being upheld against a workman who deliberately defied the employer's orders and statutory regulations. If it was merely a case of careless conduct of two workmen, the defence of contributory negligence to the claim of one of them against the employer would involve him in vicarious liability to the extent of negligence of the other workman; but the defence of consent becomes a complete answer to the claim.44 The dividing line between the principles of 'volenti non fit injuria' and 'contributory negligence' has not been precisely established, however, the basic difference may be summed up as follows: (a) In volenti non fit injuria the plaintiff truly consented to the risk to which he was exposed; (b) In contributory negligence the defendant failed to take reasonable care for his own safety. ____________________________________________________________________ 1. The Osborn's concise Law Dictionary, sixth edition by John Burke published by Sweet & Maxwell. 2. The legal study wizard. www.studywizard.org/tort/volenti.html. 3. Wikipedia the free encyclopedia. en.wikipedia.org/wiki/Volentinonfit_injuria. 4. The law of Torts by Ratan Lal and Dhiraj Lal as revised by Munir Ahmad Khokhar Advocate, published by Irfan Law Book House. 5. The same meaning is assigned to this term by the High Court West Pakistan (Bahawalpur Circuit-at Baghdad-ul-Jadid) delivered in the case titled Ghulam Qadir v. Azim Bakhsh, PLD 1969 BJ 20 while discussing the applicability of this principle to the case under discussion. 6. Syed Ali Nawaz Gardezi v. Lt. Col. Muhammad Yousaf PLD 1963 SC 51. 7. M/s United Exports Company v. Regional Tax Officer 2011 PTD 1128. 8. Smith v.. Baker & Sons (1891) AC 325, HL. Imperial Chemical Industries Ltd. v. Shatwell (1965) AC 656 = (1964) 3 WLR 329 (HL). 9. Hall v, Brookland Auto Racing Club (1933) 1 KB 205. 10. Wooldridge v. Sumner (1963) 2 QB 43 also reported as (1962) 2 All ER 978. 11. "PLD 1969 BJ 20 Ghulam Qadir v Hafiz Azim Bakhsh etc. 12. The legal study wizard. www.studywizard.org/tort/volenti.html 13. Salmond's Law of Torts (Tenth Edition) pages 33 & 34. Also referred to in PLD 1969 BJ 20 Ghulam Qadir v. Hafiz Azim Bakhsh. 14. Williams v. Birmingham Battery Co. (1899) 2 QB 388 (failure to provide a ladder for plaintiff working On an elevated tram), D'Urso v. Sanson (1939) 4 All ER 26 (watchman burnt to death when going inside a building on fire due to employee's negligence), Baker v. James (1921) 2 KB 647 (supplying a defective motor car MI commercial tranvellers). 15. ibid 16. Imperial Chemical Industries Ltd. v. Shatwell (1965) AC 656 = 3 WLR 329 (HL). Also in an earlier case reported as (1944) KB 476 at page 479. 17. Hanes v. Harwood (1935) 1 KB 146. 18. en.wikipedia.org/wiki/Volenti_non_fit_injuria 19. Merrington v. Iron Bridge Metal Works (Ltd.) and others (1952) 2 All ER 1101 at page 1103. 20. http://en.wikipedia.org/wiki/Sciens 21. Smith v. Baker and Sons (1891) AC 325. 22. R. v. Donavan (1934) 2 KB 498 at Page 537. 23. Nettleship Vs. Weston (1971) 2 QB 691 = (1971) 3 WLR 370. 25. Syed All Nawaz Gardezi vs Lt. Col. Muhammad Yousaf PLD 1963 SC 51. 26. M/s United Exports Company vs. Regional Tax Officer 2011 PTD 1128 27. Gipps v. Gipps (1864) 11 H L C 3. 28. Halsbury's Laws of England, Vol. 12, Third Edition, para 589, at page 297. 29. Merrington v. Iron Bridge Metal Works (Ltd.) and others (1952) 2 All ER 1101 at page 1103. 30. Imperial Chemical Industries Ltd. v. Shatwell (1965) AC 656 = (1964) 3 WLR 329 (HL). Also in an earlier case reported as (1944) KB 476 at page 479. 31. Haynes v. Harwood (1935) 1 KB 146. 32. Lakshmi Rajan v. Malar Hospital III (1998) CPJ 586 33. R. v. Donavan (1934) 2 KB 498 at Page 537. 34. Slater v. Clay Cross Company Ltd. (1956) 2 QB 264. 35. Dr. Laxman Balkrishna Joshi v. Dr. Trimbak Bapu Godbole AIR 1969 SC 128. 36. Wooldridge v. Sumner (1963) 2 QB 43 also reported as (1962) 2 All ER 978. 37. Ghulam Qadir v. Hafiz Azim Bakhsh etc. PLD 1969 BJ 20 38. Haynes v. Hardwood (1935) 1 KB 146. 39. Baker v. T.E.Hopkins & Sons Ltd. (1956) 1 WLR at page 976 per Morris J. 40. Syed Ali Nawaz Gardezi v. Lt. Col. Muhammad Yousaf PLD 1963 SC 51. 41. 2011 PTD 1128 United Exports Company v. RTO 42. Pollock, Torts, p 131. 'The whole law of negligence assumes the principle of volenti non fit injuria not to be applicable'. 43. Per Bowen Li, in Thomas v. Quartermaine (1887) 18 QBD 697.