tort law- VNFI

NATIONAL LAW UNIVERSITY, ODISHA

Project on Tort Law: Volenti Non Fit Injuria-A detailed Study

Submitted by: Ankita Sen Roll No.:2013/BBA.LLB/10

ACKNOWLEDGEMENT We are very thankful to Prof. Mr. Yogesh Pratap Singh ( Assistant Professor of Law), National Law University, Odisha, for giving us a topic in which we could expand our knowledge through books, journals and old cases. This not only increased our knowledge, but also sharpened our researching skills. We are also very thankful to our classmates, who have time and again helped us by providing books and whatever possible material that came to our help. We would also like to thank all those who helped us in gathering information necessary for the making of this project, rather making this project presentable.

TABLE OF CASES-

1. INTRODUCTION The word ‘tort’ is derived from the Latin term ‘tortum’ which means ‘twisted’. Thus, a tort basically refers to an act which is wrong or twisted. Generally speaking, it is an injury that one person or entity inflicts(accidentally or intentionally) on another person. “A tort is a violation of a right of a person or a breach of duty of another towards him. The right and duty arise under the general law as between a person or persons in a particular situation.”1 A tort is, “a civil wrong for which the remedy is a common law action for unliquidated damages, and which is not exclusively the breach of a contract or the breach of a trust or other merely equitable obligation.”2 “A tort may be defined as a civil wrong independent of contract for which appropriate remedy is an action for unliquidated damages.”3 Tort law is mainly based on the legal maxim, ‘ubi jus ibi remedium’, which means, that where a right exists, there lies a remedy too. “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.” 4 When this legal right of a person is violated, the injured party can ask for remedy in the form of ‘damages’ or compensation. Now, compensation can be of a few types- compensatory 1 A Lakshminath , M Sridhar, and Ramaswamy Iyer. 2007 .The Law of Torts. 2 3 4Jones Lucy.2013. Introduction To Business Law. Accessed August 20, 2013. http://www.books.google.co.in/books? id=JZOcAQAAQBAJ&dq=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%E2%80%99+reputations&source=gbs_navlinks_s

damages and punitive damages. The former aims at compensating the injured(called ‘plaintiff’ in tort law) and the latter aims at punishing the wrong-doer(called the ‘defendant’ in tort law). Some tort cases seeks something called an ‘injunctive relief’. An injunctive relief refers to a court order that requires the defendant to do something or prevents him from doing something. “Tortious liability arises from the breach of a duty primarily fixed by law; this duty is towards persons generally and its breach is redressable by an action for unliqidated damages.”5 This brings us to distinguish between liquidated and unliquidated damages. The liquidated damages refer to the damages the value of which are fixed and had been decided beforehand. Whereas, unliquidated damages refer to those damages the value of which are not fixed and they are not predecided ones. “The origins of tort law can be found in old English procedural law. To file an action in a court, one needed a writ, which could only be obtained from the head of the judiciary, the Lord Chancellor. The law of torts is strongly influenced by its history: the focus is not primarily on rules but on the right cause of action” 6. In India, tort law has developed mainly as a part of the common law system that influenced India after India was colonized by the British. However, tort law has not developed much India. “The law of torts administered in India is the English common law of torts so far as it is available to the Indian society and circumstances.”7 Thus, the application of common law, more specifically tort law in India has a selective application. Every tort is“a cause of action, which is simply a legally accepted reason for bringing a suit” 8 But, the law of torts also provides certain ‘defences’ to the defendant by using which the defendant can escape liability. This is done mainly to ensure the just application of the principles of tort law. The word defence “...is sometimes used to refer to any argument that 5 A Lakshminath , M Sridhar, and Ramaswamy Iyer. 2007 .The Law of Torts. 6 Dam, Cees. 2013. European Tort Law. Oxford University Press. 7 Mehta, Gaurac. 2010. Universal’s Master Guide to Judicial Service Examination. Universal Law Publishing. 8 Statsky, William. 2001. Torts: Personal Injury Litigation: Personal Injury Litigation. West/Thomas Learning.

persuades the court to find that the defendant is not liable.” 9 These defences which apply to most of the torts in general, are called the ‘general defences.’ The various types of general defences include volenti non fit injuria, act of God, necessity, contributory negligence, public policy etc. In this paper, we will specifically deal in detail with the defence of ‘volenti non fit injuria.’

9 Goudkamp, James. 2011. “A Taxonomy Of Tort Law Defences.” Harvard Law School.

2.Meaning of Volenti Non Fit Injuria The legal maxim Volenti Non Fit Injuria is a Latin term. In simple language it means that one cannot complain against an injury suffered if he has voluntarily placed himself in such a position where such injury might result. It is used as a complete defence in tort law. Volenti non fit injuria refers to the voluntary assumption of risk by a person. “...assumption of risk embodies the principle that one who voluntarily assumed the risk of an injury from a known danger cannot recover in an action for negligence or when an injury is incurred.” 10 The essential elements of Volenti non fit injuria include the aggrieved party must have knowledge of the risks in full detail. Moreover, the injured party must also have freely consented to the harm suffered.However, as we go along, we will find certain intricacies in the concept of actually consenting to the risk and its consequent harm. Volenti non fit injuria, in a way attempts to protect the defendant from being unnecessarily harassed because of the plaintiff’s act of voluntarily placing himself in a position so as to be in proximity to the injury suffered. “The principle expressed by the maxim is briefly this: that no man has a right to complain of an injury to the infliction of which he has himself consented.” 11 Going back to the two components of volenti non fit injuria, it must be mentioned that knowledge of the risks include the plaintiff’s understanding, as a reasonable man would, of the nature of the risk of the act and the extent of the consequences that can follow. Here comes the question of assumption of the risk involved. “Assumption of risk traditionally was an absolute defence that completely barred a plaintiff’s claim. The rationale for the defence was expressed in the ancient maxim volenti non fit injuria- a person who consents to the doing of an act cannot maintain an action in respect of the damage which results from that act.” 12 Moreover, the consent should be free, consent that is vitiated by fraud, coercion, misrepresentation and undue influence is considered to be invalid. This is to say that the “...risk must be freely taken

10Sangco, Cezar. 1994. Philippine Law on Torts and Damages. Goodwill Trading Co. 11 VOLENTI NON FIT INJURIA-A JUDICIAL REVIEW,http://www.heinonline.org

12Lalor, and Thomas. 1990-1991. “Assumption of risk in new york under cplr 1411:complete bar or comparitive fault?” Touro law Review. Accessed August 27, 2013. http://heinonline.org/HOL/Page? handle=hein.journals/touro7&div=11&g_sent=1&collection=journals#1

for the defence to succeed. There will be no defence where the plaintiff had no choice but to accept the risk.”13

“... the defence at least includes the case where there is an agreement, not necessarily constituting a contract, between the plaintiff and the defendant under which the plaintiff foregoes, in advance, a claim for negligence which might otherwise accrue to him, that is, the plaintiff agrees that conduct of the defendant which would otherwise be actionable will not be so.”14 The defence of volenti non fit injuria often overlaps with the defence of contributory negligence. Both volenti non fit injuria and contributory negligence are based on the conduct of the plaintiff. The defence of volenti non fit injuria is a complete defence, because in this defence, the plaintiff has placed himself voluntarily in a position so as to suffer from the injury. Whereas, for the defence of contributory negligence, it has to be proved that the plaintiff has himself been negligent and has contributed to the harm that he has sufferred from. However the defendant can succeed in a case involving volenti non fit injuria, only if it can be shown that the plaintiff accepted the risk voluntarily, not under any pressure or emergency situation.

13Turner, Chris. 2010. Unlocking Torts 3. Routledge. 14A.J.E. Jaffey. 2009. “Volenti Non Fit Injuria.” The Cambridge Law Journal. Accessed September 5, 2013. http://journals.cambridge.org/action/displayAbstract? fromPage=online&aid=3081276

3. ORIGIN AND DEVELOPMENT OF VOLENTI NON FIT INJURIA The legal maxim, volenti non fit injuria, as we know, says that, if a person voluntarily consents to a risk, no liability can arise against the defendant for the same. However, there comes a need to clarify what exactly consent means. 3.1 KNOWLEDGE and CONSENT AS AN ELEMENTS OF VOLENTI NON FIT INJURIA“The essence of

the volenti defence is that the claimant voluntarily assented to the

commission of the tort and therefore cannot complain about the damage. Sometimes voluntary assent to a crucial element of the tort will appear to be enough...but such assent only works if it is imposible to separate that element from the damage sufferrred by the claimant.”15 This point becomes clear when we talk about the case of Ilott vs Wikes in 1820. The facts of the case go on somewhat like this- a trespasser who was aware of spring guns being placed in a forest, accidentally treaded on the latent wire communicating with a gun and thereby letting it off. The trespasser, now the plaintiff suffered injury. However, “ it was held that a landowner who placed spring guns on his land to keep off poachers was not liable to a trespasser.”16 This judgement was based on the fact that the plaintiff had knowledge of the placing of spring guns in the land and had voluntarily assented to the injury that he had suffered from. However, there was a storm of public disapproval after this judgement. This made the Parliament come up with an Act that said, setting of dangerous devices( like, spring guns) would constitute a crime. Later, in 1824, while deciding the case of Bird vs Holbrook 17, the judgement given in the case of Ilott v Wikes and thereby, a defendant who set up a spring gun would be held liable even to a trespasser. The main argument was that, mere knowledge 15 Edito , General,and Ken Oliphant. 2007. The Law Of Tort. Lexis Nexis Butterworths. 16 Ilott v. Wikes [1820] 3 Barn. &Ald. 304 17 Bird v. Holbrook [1828] 4 Bing 628

does not amount to consent. Knowledge means the “plaintiff must know the nature of the act or work its extent of danger or risk. If he does not know, or reasonably cannot understand the nature and extent of risk with the performance of an act, it will be presumed that he had no knowledge of the risk.”18 Thus, tort law says that volenti non fit injuria has two components, knowledge and consent. The consent given must be free .

“Ordinarily, a persons’ knowledge of the risk to which he exposes himself would lead to an inference of his consent or assumption of risk.”19And even is free consent is given it has to be understood whether the consent is direct and explicit or expressed and implied. Let us look at a case that portrays the emerging modern views regarding the entire concept of volenti non fit injuria-Yarmouth vs France20. The point contested in this case was, “ No one denied that a man who freely and voluntarily incurs

a risk of which he has full knowledge cannot

complain of injury if this risk materializes and causes him damage. The controversy was whether acceptance of the risk can(or must) be inferred from the mere fact that the man goes on working in full knowledge of the risk involved. Then came up the case of, Thomas vs Quartermaine21, in which the judge ruled, “Knowledge is not a conclusive decision in itself. But when it is a knowledge under circumstances that leave no inference but one, namely, that the risk has been voluntarily encountered, the defence is complete.”22 “Quite apart from the other requirements of the defence, knowing about a risk is not the same as being willing to accept it.”23 18 Singh, S.P. 2010. Law of tort: Including Compensation Under the Consumer Protection Act.. Universal Law Publishing.

19 Lakshminath , A, and M Sridhar, Ramaswamy Iyer. 2007. The Law of Torts. LexisNexis Butterworths. 20 Yarmouth vs France [1887] 19 QBD 647 21 Thomas vs Quartermine [1887] 18 QBD 685 22 PER BOWEN, L.J in Thomas vs Quartermine 23 Lakshminath , A, and M Sridhar, Ramaswamy Iyer. 2007. The Law of Torts. LexisNexis Butterworths

3.2 IMPLIED CONSENTThe case of Thomas vs Quartermine was referred to while deciding the case of Smith vs Baker24. In this case, Thus, more precisely, the case lays down the rule of ‘implied consent’. This means that, when the plaintiff undertakes voluntarily to do something that is intrinsically dangerous, he also automatically consents to the harm and risks inevitably accompany the act. This holds true even if the defendent has taken reasonable care to avoid the harm as much as possible. Let us now talk about the case of Hall vs Brookland Auto Racing Club25, an accident took place in a racing track, wherein two speeding cars hit into the crowd of spectators, killing two and injuring one. In this case, the court ruled that the defence of volenti non fit injuria will apply, because by being present at the racing event, the spectators had indirectly consented to the risks that could arise as a result of being present there. This was clearly a case of ‘implied consent’ and it is this concept of ‘implied consent’ that is very commonly confused with mere knowledge of facts. In the year 1963, a case was decided in a manner similar to the case of Hall vs Brookland Auto Racing Club, that took place thirty years back. This was the case of Woolridge vs Sumner26. In this case, the plaintiff, a photographer attended a horse show. During the competition, he was knocked down and injured by a horse owned by the first defendant and droven by the second defendant. The court held that in this case, the defence of volenti non fit injuria will apply because, it was not a matter of mere knowledge, by being present at the horserace, the plaintiff had actually consented to the possible harms. Moreover, the defendant was expected to concentrate on the race and not on the spectators. In both the above cases, the the amount of knowledge the plaintiff had, was considered enough to qualify as consent. In the case of Culter vs United Dairies27, the plaintiff went to a field in order to calm down some horses and suffered injury as a result of that. He had complete knowledge of the risks involved, but he went to the field, even after knowing that the horses were not posing an immediate threat to anyone present there. Volenti non fit injuria clearly applied in 24 Smith vs Baker [1891] AC 325 25 Hall vs Brookland [1933] 1 KB 205 26Wooldridge vs Sumner [1962] 3 WLR 616 27 Culter vs United Dairies [1933] 2 KB 297

this case. However, this was different from a subsequent case in the year 1935, Haynes v Harwood28. In the case of Dan vs Hamilton29, where, the plaintiff enters into a car being driven by the defendant who is in a drunken state and then the car meets with an accident. In this case the plaintiff can clearly not ask for compensation because the defendant will successfully claim the defence of volenti non fit injuria because the very fact that the plaintiff had knowledge of the drunken state of the defendant, satisfies the condition of knowledge accompanied with consent, whether expressed or not. This again qualifies implied consent if not expressed.

3.3 KNOWING AND WILLINGNESSNow, knowledge as we have discussed earlier, is a subjective concept. It is a loose idea. For example, we know of the risks and dangers that can be there in our homes, in the office area or in other places. We know of car drivers being negligent 30, or may be we have even seen drivers who are habitually careful and steady, becoming negligent sometimes31. However, if such general knowledge is considered to be a qualifying criteria for the defence of volenti non fit injuria, then no situation will remain in which a plaintiff can successfully sue the defendant for the tort of negligence. But, the plaintiff must have the full knowledge of the nature and extent of the risk. This was highlighted in the case of Osborne vs London and North Western Railway Co.32 So,it is important that the “actual knowledge of the risk must be

28Haynes vs Harwood [1935] 2 KB 297 29 Dann vs Hamilton [1939] 1 KB 509 30 Membery v Great Western Rly Co [1889] 14 AC 179 31 Woodley v Metropolitan District Railway Co [1877] 2 Ex D 384 32 [1888] 21 QBD 220

proved, not just negligence.”33For instance, in the case, Nettleship v Weston 34, Lord Denning has stated, “Knowledge of the risk of the injury is not enough. Nor is a willingness to take the risk opf injury . Nothing will suffice short of an agreement to waive any claim for negliugence. 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.”35 However, this concept is not accepted in all cases. 36In the case of White v Blackmore 37 in the year 1972. In this case, the plaintiff, Mr. White was killed in a car race, due to negligence on the part of the defendant. The issue was that, the plaintiff was aware of the risks that could be present in a car race, but that does not mean, he consented to the harm suffered as a result of the negligence of the defendants. This confusion between mere knowledge and consent is very common. Sometimes, when a football player is hurt during the course of the game, he can claim compensation only if he can show that the other player was excessively aggressive that was beyond the rules of the game. 38 Let us think about the landmark case of Morris v Murray39, in which the plaintiff and the defendant had been drinking, then the plaintiff had voluntarily boarded the airplane of the defendant. This was a case of volenti non fit injuria, fulfilling the criteria for consent, because he was not forced to board the plane, it was completely out of his own free will. Let us now look at the aspect that for volenti non fit injuria to act as a defence, the consent given must be free. However, there have been cases where consent has been vitiated by many 33 Smith vs Austin Lifts Ltd [1959] 1 WLR 100 34 [1971] 2 QB 691 35 Edito , General,and Ken Oliphant. 2007. The Law Of Tort. Lexis Nexis Butterworths.

36 Imperial Chemical Industries Ltd v Shatwell [1965] AC 656 37[1972] 3 WLR 296 38 Condon vs Basi [1985] 1 WLR 866 39 Morris vs Murray [1991] 2 QB 6

factors and is not considered to be free. There have been factors in which consent is vitiated by factors like undue influence and coercion The factor of undue influence is even more evident in a master-servant relationship, in fact in these cases, “volenti non fit injuria is a dead or dying defence.”40 The defence of volenti non fit injuria as a whole becomes null when negligence on the part of the defendant is proven. But, undue influence and coercion are certain factors that nullify the application of volenti non fit injuria. This should also include coercion in the form of economic pressure. This was brought about in the case of Semble contra Latter vs Braddell41, in the form of threatening an employee to dismiss him. For instance, in the case of Bowater v Rowley Regis Corp 42, the plaintiff was forced by his master to drive injurious horses and as a result of that, he ended up injuring people. But, the plaintiff’s consent in this case cannot be considered as a prerequisite for volenti non fit injuria because, he falls under the undue influence of the master. As Scott LJ had pointed out in this case, “For the purpose of the rule...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 conditioned, so that 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 freedom of his will.”43 In the year 1956, there came up the case of Slater v Clay Cross Co. Ltd 44, where a lady while walking through a tunnel was struck by a train. In this case, volenti non fit injuria as a defence did not apply, because there was negligence on part of the defendants. To give another example of the effect of undue influence on consent, we can talk about the landmark case of R v Williams45. In this case, a minor girl was raped by her music teacher, on the advice of the teacher that such an activity would improve her voice quality. The problem with 40Lunney, Mark, and

Ken Oliphant. 2008. Tort Law: Text and Materials

41 Latter v. Braddel [1880] 50 LJQB 166 42 Bowater v. Rowley Regis Corp [1944] KB 476 43Edito , General,and Ken Oliphant. 2007. The Law Of Tort. Lexis Nexis Butterworths. 44 Slater v. Clay Cross Co. Ltd[1956] 2 QB 264

coercion and is that, these factors render the consent given by the plaintiff(under these circumstances) null and void. To give an example, “employees who have no choice but to comply with their employers’ instructions do not count as having consented willingly.” 46 Factors like fraud and misrepresentation also vitiate consent or rather free consent, that is, if the consentor does not have full information of what he is consenting to. In this respect we can refer to the case of Chatterton vs Gerson.47 Once we have talked abot the fact that consent must be free, we must also keep in mind another point regarding consent, that is, the capacity to consent. For instance, it was argued in the case of Gillick v Norfolk Wisbech Area Health Authority 48, that minors at the age of sixteen are under the capacity to consent and so operating them for contraception by the doctor’s directions would involve no consent at all, as the capacity to consent is actually vested in the parents. The factor of capacity to consent also holds true for people who are mentally ill, this is illustrated in the case, Kirkhom v Chief Constable of Greater Manchester Police.49 3.4 EXCEPTIONS TO THE MAXIM Discussing the relation between negligence and the application of volenti non fit injuria, it can be said that where a work is dangerous and the plaintiff has been subjected to some kind of risk, whether he has been injured or not, if the risky situation has been created or enhanced by the negligence of the defendant, then the defendant will not be considered to have consented to the risk. However, the defence of volenti non fit injuria does not work as a defence in rescue cases. With respect to this, let us take the example of the case of Chadwick v British Railway Board50. In this case, the plaintiff’s husband had gone from his 45 R. v. Williams [1987] 3 All ER 411 46 Burnett v. British Waterways Board [1973] 2 All ER 631 47Chatterton v. Gerson [1981] 1 All ER 257 48Gillick v. Norfolk Wisbech Area Health Authority [1986] AC 112 49 Kirkhom v. Chief Constable of Greater Manchester Police [1990] 2 QB 283 50 Chadwick v. British Railway Board [1967] 2 All ER 945

home to the scene of a major railway disaster and played a very important role in the rescue operations. But, after this incident, he became a psychoneurotic. In this case, the plaintiff had voluntarily gone to offer help in the rescue operations, but even then the defence of volenti non fit injuria will not apply because his voluntary involvement in the case was regarding rescue cases. Likewise, in the case of Wagner v International Railways 51, due the negligence of the railway authority, a person fell out of the train. A second person also got injured in an attempt to save the first person. The International Railway claimed that the second person had voluntarily participated in the risk, which led to him getting injured. However, just like the decision that came in the case of Chadwick v British Railway Board, the Court held that the International Railways were entirely liable to compensate the rescuer or the second person. The reason why this defence does not apply in rescue cases, mainly because in these cases, the consent of the claimant is considered to be incomplete as the claimant had been in a dilemma of choice. In this respect, we can refer to the case of Baker v TE Hopkins & Sons Ltd.52 The defence is not available to professional rescuers like firemen 53 because it is considered that, even though they have got involved in great heights of risks, they have not necessarily consented to the torts. Moreover, during an emergency, it is assumed that people will come forward to offer help and a society would always encourage that. Law of tort is not obsolete yet. For instance, Lord Denning’s opinion has been upheld in a recent case, Reeves v Metropolitan Police Comr 54, in which Lord Hobhouse has said that, volenti “is probably best confined to cases where it can be said that the plaintiff has expressly or impliedly agreed to exempt the defendant from duty of care which he would otherwise have owed.”55 51 Wagner v. International Railways [1921] 133 NY 437

52Baker v. TE Hopkins and Sons Ltd. [1959] 3 All ER 225 53 Ogwo v. Taylor [1988] AC 431 54 Reeves v. Metropolitan Police Commissioner [2000] 1 AC 360 55 Edito , General,and Ken Oliphant. 2007. The Law Of Tort. Lexis Nexis Butterworths.

4. VOLENTI NON FIT INJURIA IN INDIAOne of the earliest tort law cases in India took placed in the year 1915,Ganda Singh v Chuni Lal.56 The defendant had left his horse, that was proved to be a vicious animal, this horse bit the plaintiff. In a claim for compensation it was held that the plaintiff would get compensation because he was not aware of the vicious nature of the defendant’s horse, so the volenti non fit injuria would not apply, though initially there appears to be a scope for the maxim to be applied. This case was followed by the case of Bai Monghibai vs Doongersey Lakhmidas57 in 1917. In this case, the plaintiff was residing in a godown as a tenant. Without any apparently visible cause, the southern wall of the building collapsed and the godown full of rice bags also collapsed. A great number of these rice bags fell against the plaintiff’s wall causing the damage . This might be thought of as a qualifying case for volenti non fit injuria in the way that, the plaintiff “ occupied the demised premises fully aware of their dilapidated and unsafe condition...”58 However, the defence of volenti non fit injuria does not qualify here, because, even though the plaintiff had knowledge , such knowledge was vitiated by the fact that the defendant(the landlord) had promised the plaintiff ‘s husband that he would repair the building wherever needed, but had failed to do so. This was a clear case in which fraud had vitiated the application of volenti non fit injuria as a defence. An important case came up in the year 1923, where, not mere knowledge, but knowledge from the perspective of a reasonable man became important- South Indian Industries Ltd vs Alamelu Ammal 59. In this case, the defendants were carrying on the business of breaking up of cast iron, which involved dropping of heavy weight on the iron. This caused the broken iron pieces to fall at a distance of around 4-5 yards. One of these pieces struck the plaintiff who was standing at a distance of even more than 70 yards. The defendant was held liable in, because, he could not prove that at such a distance, the plaintiff had knowledge of the risk, freely and voluntarily accepted the risk. It was held that, “ the defendant can successfully plead volenti non fit injuria only when he proves that the person injured knew of the danger, appreciated it and 56 Ganda Singh v. Chuni Lal [1915] 29 Ind Cas 862 57 Bai Monghibai v. Doongersey Lakhmidas [1917] 19 BOMLR 887 58 MANU/MH/0044/1917 59South Indian Industries Ltd v. Alamelu Ammal [1923] 45 MLJ 53

voluntarily took the risk. That the defendant had some knowledge of the danger is not sufficient. A man cannot be said to have voluntarily undertaken a risk the extent of which he does not appreciate.”60 In the year, 1937, came up the case Secretary of State vs Rukhmini Bai61. In this case, the plaintiff’s husband worked under the GIP Railway. Due to negligence on the part of a third employee, the plaintiff got killed in an accident. However, in this case, the defence of volenti non fit injuria did not hold, because the plaintiff was acting like a servant following the orders of the employer. Even after India gained independence, the law of torts continued to operate in India.In the case of Kallulal vs Hemchand 62 and Others, the appellants were the owners of a house which had its southern wall adjacent to a highway. Once during heavy rain, the southern wall collapsed , crushing plaintiff’s ‘thela’ and almost immediately killing his son and his daughter. The defendant tried to defend himself by saying that, the house was actually in a good condition and needed no repairing . The collapse of the house was as a result of the rain(vis major). However, this was clearly a case of negligence on the part of the defendant.It was held that, “So far as the question of negligence is concerned it is the positive duty of the owner of a building adjoining a highway not permit the existence of a danger therein as the public has an absolute right of access to the highway. In such a case, notice to the Plaintiff, however ample, and however clearly it may bring home the extent of the danger to his mind, does not get rid of the duty towards him so as to raise a defence on the ground of volenti non fit injuria ”63In the case of Smt. Mukul Dutta Gupta and Othrs vs Indian Airlines Corporation64, in 1962, the plaintiff was Mukul Dutta Gupta , wife of Sanat Dutta Gupta who died in a aeroplane crash, involving the aircaraft of the Indian Airlines Corp. The most important debate in this was, whether the plaintiff had knowledge of the conditions of the carriage and had consented to it. The concept of ‘implied consent’ was rassised on this point . It was said that, by the act of buying the tickets, the deceased, Sanat Dutta Gupta had impliedly consented to all the conditions of the carriage. The question was 60Singh, SP. 2010. Law of tort: Including Compensation Under the Consumer Protection Act.

61Secretary of State v. Rukhmini Bai [1937] AIR 354 62Kallulal v. Hemchand [1958] AIR 48 63 M. Michael, A. Jones, Clerk and Lindsell. 2012. Torts. 64 Smt. Mukul Dutta Gupta v. Indian Airlines Corporation [1962] AIR 311

whether volenti non fit injuria will apply as a defence, however, even though the concept of implied consent was justified, a new concept of ‘statutory negligence’ 65 came up. In this case, the defendant had been negligent in fulfilling the statutory duty of safe carriage of all its passengers and so, the defence of volenti non fit injuria will not apply. The rule given in this case goes as this,for “...an action of statutory duty neither the defence of volenti non fit injuria nor common employment affords a good defence.”66 Talking about the defence of volenti non fit injuria in the Indian context, it is imperative for us to discuss the landmark case of Padmavati vs Dugganaika 67. In this case, the plaintiff voluntarily got into the car of the defendant who was drunk. The car toppled over in an accident, the plaintiff claimed for damages. However, damages would not be paid to the plaintiff, because they not only had complete knowledge of the risks involved, but had also voluntarily consented to them and these factors are sufficient to qualify it as a case of volenti non fit injuria. Let us now talk about the case of Nasibdar Suba Fakir vs Adhia Company 68 and Others, that took place in 1984. In this case, the plaintiff was travelling in a hired truck to transport his goods from Bombay to Thane. During this journey(because of the excessive speed), the truck meets with an accident, thus injuring the plaintiff. The question was as to whether a person who is travelling as a passenger in a hired vehicle for the transportation of his goods can also be said travelling in the vehicle for hire or reward or not and subsequently whether he will be paid compensation or not. This might be in tune with the old maxim of volenti non fit injuria, indicating that the a passenger who has undertaken to travel with the owner of cannot make complaint about the injury that he has suffered from because he had voluntarily undertaken or accepted the risk. But, this maxim has not been accepted as a universal rule and the Courts have necessarily made numerous exceptions keeping in mind the facts of each case. However, while deciding the aforementioned case, we can refer to the 65 Cohen, Kenneth. 2008. Expert Witnessing and Scientific Testimony: Surviving in the Courtroom.

66Salmond, John. Salmond on Torts. 67 Padmavati v. Dugganaika [1975] ACJ 222 68Nasibdar Suba Fakir v. Adhia Company [1984] 1 ACC 105

judgement given by a Division Bench of the Gujarat High Court in the case of Sakinabibi wd/o Belim Gulamhusson Mohammadmiya & Ors 69. In this case, the Court had restricted itself to the traditional meaning of volenti non fit injuria and held that the plaintiff supplying milk from Amul Dairy, Anand, to the Umreth Consumers Co-operative Society will not be compensated. However, this judgement of the Gujarat High Court was toned down, though not overruled by a Supreme Court judgement in the year 1977 in the case of Pushpabai Purushottam Udeshi and others v. M/s. Ranjit Ginning & Pressing Co. Pvt. Ltd 70. In this case, the Court held that whoever is the insurer and is supposed to take responsibility for any injury is liable to compensate any passenger of the vehicle, irrespective of his riding the vehicle just for the transportation of goods. After this decision by the Supreme Court, the Madras High Court in the year 1979, in the case of Channappa Chanavirappa Katti and another v. Laxman Bhimappa Bajantri and Others71(deceased Somappa Mallappa was carrying his goods in a hired truck and on the way, the truck met with an accident due to the negligence of the driver) gave a judgement similar to the one given by the Supreme Court in the case of Pushpabai. Another very similar case was decided in the same year by the Andhra Pradesh High Court, Meesala Suryanarayana v. Goli Satyavathi and others72. This case was decided in a manner similar to the one decided by the Karnataka High Court. In all the above cases, the defence of volenti non fit injuria did not apply owing to the fact that the plaintiff was actually working under a contract of employment while carrying the goods and also in some cases, due to the negligence of the driver. Consent, which is one of the most important elements that is required to fulfil the criteria for the defence of volenti non fit injuria. No such line can be drawn which clearly demarcates the ending boundary of consent. In the case of Lakshmi Rajan v Malar Hospital73, consent has played an important role. In this case, the complainant was a married woman, Lakshmi Rajan. She was suffering from a pain in the breast. In this 69Sakinabibi wd/o Belim Gulamhusson Mohammadmiya and Ors. [1947] 15 Guj LR 428 70 Pushpabai Purushottam Udeshi and Others v. M/s. Ranjit Ginning and Pressing Co. Pvt. Ltd. [1977] 3 SCR 377 71Channappa Chanavirappa Katti and another v. Laxman Bhimappa Bajantri and Others [1979] AIR 93 72Meesala Suryanarayana v. Goli Satyavathi and Others [1979] ACC CJ 513

scenario, a doctor of the Malar Hospital, while treating her for a lump in the breast, removed her uterus without any justification. The defence of volenti non fit injuria is clearly available in this case, because removal of the uterus was beyond what she had consented for. This shows that the defence of volenti non fit injuria can be used to escape liability in cases of negligence, it cannot be used to escape liability in cases of gross negligence, specially in cases of medical negligence. These type of negligence cases include, prescribing wrong medicine that has led to an injury 74, blood transfusion involving incompatible75 , leaving a mop in the abdomen of the patient after the operation76, not providing anaesthesia to a patient during an operation77, etc. In the year 2001, came up a case called United India Insurance v Goguloth Khanna 78. In this case, a lorry(carrying goods) belonging to the plaintiff on its way gave lift to several passengers standing on the road for transport. On the way, the lorry met with an accident, thus killing many villagers. A suit for compensation was passed by the injures against the owner, driver and insurer of the lorry, that is, United India Insurance. However, it was contended by the Insurance Company that, “ the injured/deceased unauthorisedly entered the lorry, and the maxim/doctrine volenti non fit injuria applied to this case as they voluntarily entered into the lorry at their own risk.”79 This was contrary to the judgement given in the case of New India Assurance Company v Shri Satpal Singh and Others 80, where, the Insurance Company was held liable to pay compensation even though the girl(plaintiff) who died was a gratuitous passenger in the truck that was insured by the Company. However, for 73Lakshmi Rajan v. Malar Hospital[2007] 2 CPJ 17 74 Spring Meadows Hospital v. Hajrol Ahluwalia [1998] AIR 1801 75Kalra Satyanarayana v. Lakshmi Nursing Home [2003] 1 CPJ 262 76 Achutrao Haribhao Khodwa v. State of Maharashtra [1996] 2 SCC 634 77 PN Rao v. G. Jayaprakasu [1950] AIR 201 78United India Assurance v. Goguloth Khanna [2001] 2 ACC 392 79United India Assurance v. Goguloth Khanna [2001] 2 ACC 392 80 New India Assurance Company v. Shri Satpal Singh and Others [2000] AIR 235

volenti non fit injuria to apply, it was necessary to show that the villagers had voluntarily entered the lorry, but thjere was not enough evidence to prove consent on part of the villagers. This was unlike the case of Padmavati vs Dugganaika, where sufficient evidence was available to qualify voluntary risk-taking on the part of the plaintiff. The present case could not even be decided on the lines of the decision in the case, V Gangamma vs New India Assurance Co.81, where, compensation was not payable because the plaintiffs were not passengers but trespassers. But, in the present case, it could not be shown that the injured had entered the lorry forcibly with any threat to the driver. So, volenti non fit injuria as a defence did not apply(also because, by boarding the truck, they had not consented to meet with an accident and suffer from injury) and the Insurance Company had to pay compensation. In the year 2002, came up the case, Puppala Seetaramaiah v Superintendent Sub Jail 82, where, the petitioner’s son was staying in jail custody and had committed suicide. It was contested that the jail authorities were negligent in trying to help him prevent suicide, but volenti non fit injuria applied here, because it was due to the wrongful act of the prisoner that he was in jail. Let us now talk about the case of Adhikarala Jagadeeswara Rao vs Gopala Krishna Transport and Others83, where, there was an accident due to negligence on the part of the driver, injuring the passengers and the driver himself. The defence of volenti non fit injuria is not valid in this case, because, there has been negligence on the part of the driver. So, compensation was awarded to the injured. Subsequently in the year 2005,e up the case of Ali Khan v Vijay Singh and Others84. In this case, the deceased was sitting near a cabin at a bus stand on the Barmer-Jaisalmer Road. And he was then hit by the sudden flying off of a tyre from a vehicle nearby.The plaintiff, Ali Khan(son of the deceased) files a suit against the defendant, Vijay singh(owner of the vehicle). Though apparently it might seem that volenti non fit injuria can be taken as a defence, on a closer look, we will see that, “it has to be

81V Gangamma v. New India Assurance Co. [1993] 1 ALT 353 82Puppala Seetaramaiah v. Superintendent Sub Jail [2003] 2 ALD 584 83Adhikarala Jagadeeswara Rao v. Gopala Krishna Transport and Others [2005] 1 ALD 111 84 Ali Khan v. Vijay Singh and Others [2007] ACJ 350

ensured by the owner of the vehicle that the tyres and for that matter every part of the vehicle remains in proper repairband does not go off from the vehicle.”85 Sometimes, strict liability overpowers the application of volenti non fit injuria. This happened in the case of Smt. Manjula Devi Widow of Awadhesh Kumar vs Commercial Motors 86.In this case, the deceased was travelling in a truck, on the way he gets hurt by a group of unruly boys and dies subsequently. There was no negligence as such on the part of the defendant, Commercial Motors, so volenti non fit injuria was one of the defences asked for, but this defence will not save the defendants from liability, because they will be liable under the principle of no fault liability. In the year 2008, comes up a case, that is different from the similar cases of volenti non fit injuria going on for a long time in India, Somnath Chhabra and Others v The Commissioner and Others 87where, a petition was filed against an advertisement issued by the Sub Division Officer, inviting applications for allotment of 70 stamp vendors. The petition was filed by the already working stamp vendors, who felt that taking in more vendors will marginalize their profit. However, it was held that, the petitioners(licensed stamp vendors) were serving people. Volenti non fit injuria will be applicable in this case, because, the injury that the petitioners may suffer(reduced profit) is actually valid under legal processes , as it involves the larger public interests that they are themselves serving. The petition was dismissed. A similar set of cases came up in the year 2012. In the case, United India Insurance Company v Abdul Rashid and Others 88, the deceased Mohd Umar suffered from fatal injuries due to the bursting of tyre of the vehicle in which he was tavelling. The defence of volenti non fit injuria was clearly not applicable, because the accident and hence the injury was due to the negligence of the defendant. A very similar case that can be cited in this respect, Smt Khaushnuma Begum and Others vs The New India Insurance Company Ltd.89 Another case that came up in the year 2012 and was decided on lines similar to the two cases mentioned above, is the case of National Insurance 85Ali Khan v. Vijay Singh and Others [2007] ACJ 350 86Smt. Manjula Devi wd/o Awadhesh Kumar v. Commercial Motors [2007] AIR 122 87Somnath Chhabra and Others v. The Commissioner and Others [2008] 2 PLR 659 88 United India Insurance Company v. Abdul Rashid and Others [2013] 1 All MR 73

Company v Rajbir Singh and others 90. In this case, it was said that, negligence was proved because there was evidence that the Esteem car was driven at very high speed in a rash and negligent manner. So, volenti non fit injuria clearly did not apply.

5. RECENT TREND OF CASES INVOLVING VOLENTI NON FIT INJURIA IN INDIAWith the passage of time, the defence of volenti non fit injuria has become restricted in its scope. New concepts have been intermingled with the concept of this maxim. For example, in the case of Nasibdar Suba Fakir vs Adhia Company, the concept of a passenger travelling in a vehicle for hire or reward has come up. The principle of contract for employment has also come up which has shown indicated that , the plaintiff has suffered from injury by placing himself in such a position as was required by the contract. The judgement of this case was basically influenced by the judgement of the Supreme Court in the Pushpabai case. However, a Division Bench of the Gujarat High Court in a similar case had given a contrasting judgement, the effect of which was toned down after the Supreme Court judgement. The trend set by the Supreme Court was also followed by the Madras High Court and the Andhra Pradesh High Court in two other cases. Medical negligence is another concept, in which volenti non fit injuria is often invoked as a defence. A landmark case in this field was the case of Lakshmi Rajan vs Malar Hospital in the year 1998. There were many other such case of medical negligence, where the Courts have in general held that volenti non fit injuria though contested will not be applicable for the main reason that patient(plaintiff in these cases) consents to the operation and not to the injury resulting from negligence in such an operation. The case of Goguloth Khanna in 2001 once again tightened the scope of volenti non fit injuria as a defence. Unlike the old usage of the maxim, it is now not enough to just say that the plaintiff had placed himself in a position so as to suffer harm. Factors like evidence to show whether the passenger had actually consented to enter the vehicle, whether there was 89 Smt. Khaushnuma Begum and Others v the New India Insurance Company Ltd. [2001] 2 SCC 9 90 National Insurance Company v. Rajbir Singh and Others [2013] ACJ 1403

voluntary risk-taking on their part also have to be considered. However, the application of volenti non fit injuria differs from case to case, the judgement of this case was contrary to the judgements given in the cases of Padmavati vs Dugganaika and V Gangamma vs New India Assurance Co. on different grounds. Negligence on the part of the driver of a vehicle has attracted similar judgements. Such cases include the case of Smt Khaushnuma Begum and Others vs The New India Insurance Company Ltd. In 2001, Adhikarala Jagadeeswara Rao vs Gopala Krishna Transport and Others in 2004, Ali Khan vs Vijay Singh and Others in 2005, Smt. Manjula Devi Widow of Awadhesh Kumar vs Commercial Motors in 2007, and United India Insurance Company vs Abdul Rashid and Others in 2012. The case of Puppala Seetaramaiah vs Superintendent Sub Jail discussed the application of the defence with respect to prisoners, who have been imprisoned due to their wrongful acts. No case similar to this has come up subsequently. But in cases with similar facts, we have seen that the courts have followed a uniform trend of judgement, differing only if crucial deciding facts of the cases differ.

6. CRITICAL EVALUATIONAll the components of volenti non fit injuria must be met in order to apply it successfully as a sdefence. As a corollary, it can be said that whenever the defence of volenti non fit injuria is not met, ity is evident that all the elements have not been satisfied. If we consider knowledge to be thwe first essential factor, we will see how this factor keeps changing from case to case. It is very difficult to understand what ‘knowledge’ should contain. As we have seen in the study, in the case of Ilott vs Wikes, volenti non fit injuria was applicable on the ground that the plaintiff had the knowledge of the spring guns placed in the forest. the presence of knowledge implies that a man who has full knowledge of a risk cannot complain of the injury. However time and again it has been contested that knowledge does not fulfil the criteria of consent. This actually implies that the maxim itself is “volenti non fit injuria” and not “sciens non fit injuria” where ‘sciens’ refers to knowledge and it is believed that knowing is not equivalent to volunteering(sciens non est volens). “The maxim, ‘be it observed’, is not scienti non fit

injuria, but volenti.”91 This has been found true for the cases like Smith vs Baker, Membery v Great Western Railway Company , Woodley v Metropolitan District Railway Company etc. If we look at the development of “volenti non fit injuria” cases we will find that “volenti non fit injuria” is much more restricted now than it previously was. There was a time when courts were all too ready to find that the plaintiffs had voluntarily accepted the risks in question, particularly where the plaintiff had suffered injury in the course of employment. But, now “volenti non fit injuria” had many restrictions the major one being- there is a difference between accepting the risk of injury, and accepting the legal consequences of the injury. However, in certain cases, knowledge is considered sufficient to constitute consernt. When knowledge is considered to be sufficient for constituting free and voluntary consent, it is actually the doctrine of “assumption of risk” that comes to play. “The real question under the doctrine of voluntary assumption of risk is what is the danger that is normally to be anticipated from the position taken up.”92 For instance, “ the duty of an occupier of premises which have an element of danger upon them reaches its vanishing point in the case of those who are cognizant of the full extent of the danger and voluntarily run the risk”93 . This is because when a person has full knowledge of the facts and circumstances of the future risks of an act, he is assumed to have considered the risks and thus consented to the harm and injuries. To give an instance of a situation when consent is considered to be present, even though it is not said explicitly is where the concept of “implied consent” comes. Like it is rightly pointed out in the case of Smith v Baker by Lord Herschell, “One who has invited or assented to an act being done towards him cannot when he suffers from it, complain of it as a wrong. The maxim has no special application to the case of employer and employed though its application may well be involved in such a case.”94 91 Lakshminath , A, and M Sridhar, Ramaswamy Iyer. 2007. The Law of Torts. LexisNexis Butterworths 92 UNIVERSITY OF PENNYSYLVANIA LAW REVIEW AND AMERICAN LAW REGISTER,http://www.jstor.org/stable/3313086

93Thomas vs Quartermine [1887] 18 QBD 685 94Smith v. Baker [1891] AC 325

The same principle of implied consent has been enforced in the cases of Hall v Brookland , Wooldridge v Sumner , Cutler v United dairies , Dann v Hamilton. The defence of volenti non fit injuria also has exceptions in the form of the doctrine ‘non actus intervenions’ or in a layman’s term, volenti non fit injuria does not work for rescue cases. This has been used in the cases of Haynes v Harwood , Chadwick v British Railway Board, Wagner v International Railways. It is considered that a person who voluntarily goes to a rescue site and gets involved in the risks and has no choice as such. In this respect it is considered that, “the person who puts at risk his own safety to save another should be afforded a remedy if harmed.”95 Negligience on part of defendant is a nullifier for volenti non fit injuria because the plaintiff consents to the consequences of a particular act but not to the consequences that result from negligence on the part of the defendant.. For instance, Smoldon v Whiteworth and Nolan96, the lord Bingham had pointed,“The plaintiff had of course consented to the ordinary incidents of a game of rugby of the kind in which he was taking part...he cannot possibly said to have consented to a breach of duty on the part of the official whose duty it was to apply the rules and ensure so far as possible whose duty it was to apply the rules...”97Such cases of negligence also include the cases of medical negligence, where, the patient suffers an injury that has never been consented to and that has taken place solely due to the negligence of the doctor or the hospital authorities. However, we should not restrict ourselves by talking only about the negligence of third parties.The question is “...would it make any difference if a person due to his own wrongful act is in imminent danger and the plaintiff in trying to rescue him is injured. On principle, there ought not to be any difference and therefore he ought to be held liable in the one case as in the other.”98 This was highlighted in the case of Baker vs T.E Hopkins and Sons Ltd.

95 Vivienne Harpwood, Principles of Tort Law 4(2002) 96 Smoldon v. Whiteworth and Nolan [1997] PIQR 133 97 Jenny Steele, Tort Law, Text, Cases and Materials 2(2010) 98 Singh, SP. 2010. Law of tort: Including Compensation Under the Consumer Protection Act.

“In the defence of volenti non fit injuria consent must be free. When consent is obtained by fraud, undue influence or coercion, it is not free.”99 As consent is not free, requirements of volenti non fit injuria are not met and so the defence does not apply. This has been seen in cases like R vs Williams and Bowater vs Rowley Regis Corp. So, we see that the “maxim is put to its proper use when it is employed as one among other tests for the solution of the question whether the defendant under all the circumstances of a particular case was or was not guilty of negligence.”100

7. CONCLUSIONAfter the entire study on the defence of volenti non fit injuria, we can conclude that this defence is very important in cases involving negligence. However, on taking a closer look at the maxim, we have seen that it has a scope little wider than this. There are certain situations when (even when all the requirements are met) the defence does not apply and these situations are seen as exception to the maxim. These, as discussed earlier include, rescue cases, fraud, coercion, misrepresentation and also statutory obligation. Talking in the Indian context, this defence has a lot more to develop. In the present scenario, it is not very widely used in India, one of the reasons being, it is a part of tort law, that is uncodified. So, like other tort law principles, this defence is used in India as and when suited to the Indian society. In this study, we have discussed both the English cases and the Indian cases. From the study it is clear that, English society uses this defence more spontaneously than the Indian society. However, in future years, volenti non fit injuria might develop in India, keeping in mind the increasing negligent attitude in the common man, that would lead to disputes which would in turn call for settling of disputes. This would now invoke the defence of volenti non fit injuria.

99 Universal's Guide to All India Bar Examination: Covering Complete Syllabus10 (2011) 100 JURIDICAL REVIEW 17(1905)http://www.heinonline.org/HOL/Page? handle=hein.journals/jure17&div=8&g_sent=1&collection=journals#47