Volenti Non Fit Injuria

2016 B.A.LL B131

Inspecting the scope of VOLENTI NON FIT INJURIA TORT’S PROJECT TAUGHT BY KAVITA SINGH MA’AM SUBMITTED BY JAY SINGHEE

Acknowledgement I have taken efforts in this project. However, it would not have been possible without the kind support and help of many individuals and organizations. I would like to extend my sincere thanks to all of them. I am highly indebted to Kavita Singh Ma’am for her guidance and constant supervision as well as for providing necessary information regarding the project & also for her support in completing the project. I would like to express my gratitude towards all staff member of National Law Institute University, Bhopal for their kind co-operation and encouragement which help me in completion of this project and providing us with all the resources required to make this project. My thanks and appreciations also go to my colleague in developing the project and people who have willingly helped me out with their abilities.

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TABLE OF CONTENTS Table of Contents ......................................................................................................... 2 1

Statement of Problem ............................................................................................ 4

2

Research Objectives ............................................................................................... 5

3

Hypothesis ............................................................................................................. 6

4

Research Methodology .......................................................................................... 7

5

Introduction .......................................................................................................... 8

6

7

8

5.1

Torts ............................................................................................................... 8

5.2

General Defences .......................................................................................... 10

The Meaning Of Volenti Non Fit Injuria ................................................................ 12 6.1

Voluntary ...................................................................................................... 12

6.2

Agreement .................................................................................................... 12

6.3

Knowledge .................................................................................................... 14

The origin and development of Volenti non fit injuria........................................... 15 7.1

Knowledge And Consent As An Elements Of Volenti Non Fit Injuria ................ 15

7.2

Implied Consent ............................................................................................ 16

7.3

Knowing And Willingness ............................................................................... 17

7.4

Exceptions To The Maxim .............................................................................. 20

The various applications of Volenti non fit injuria ................................................ 22 8.1

Volenti non fit injuria in Employment Relationships ....................................... 22

8.2

Volenti non fit injuria in Rescue Cases ........................................................... 22

8.3

Volenti Non Fit Injuria In The Cases Of Suicide ............................................... 24

8.4

Volenti Non Fit Injuria In The Case Of Sporting Events ................................... 26

8.5

Volenti Non Fit Injuria In Relation To Drunk Drivers ....................................... 27

8.6

Volenti Non fit Injuria in the Case of Trespassers ........................................... 28

8.7

Volenti Non fit Injuria and Exclusion Clauses in a Contract ............................. 29 Inspecting the scope of VOLENTI NON FIT INJURIAPage | 2

9

Volenti non fit injuria In India .............................................................................. 30 9.1

Recent Trend Of Cases Involving Volenti non fit injuria In India ...................... 35

10

Contributory Negligence and Volenti non fit injuria........................................... 37

11

Conclusion ........................................................................................................ 38

12

Bibliography ..................................................................................................... 39

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1 STATEMENT OF PROBLEM By the means of this project we hope to explore the scope of the general defence Volenti Non Fit Injuria and how it has, over the years of it being propounded, become a defence with one of the broadest scope of applications in comparison with the rest of the defences. But with the help of research we would like to determine the scope of the defence and also investigate whether the defence, over time increase its application. Also we will explore why was the concept of ‘consent as a defence’ and which cases led to its development. Also we will research on the similarities and the differences between the Volenti Non fit Injuria and Contributory Negligence. What was need of differentiating between the two.

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2 RESEARCH OBJECTIVES The following are the key objectives that were kept in mind while making the research paper. These are the core areas the paper will cover:         

To understand and explain the concept of ‘Law of Torts’ and it’s ‘General Defences’. To understand and explain the meaning of ‘Volenti Non Fit Injuria’. To understand and explain the development of ‘Volenti Non Fit Injuria’. To explore its scope and various applications. To understand and explain the need of the defence. To check the how well developed and interpreted the concept is and to the need, if any, for it to be further explored and developed. To determine the possible future of the concept, its importance as a defence. To understand how the concept has such a broad application in cases of negligence by the means of studying some landmark cases of the defence. Conclusively prove the hypothesis.

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3 HYPOTHESIS “Can the scope of Volenti Non Fit Injuria be further expanded with time?” “Will the application of Volenti Non Fit Injuria change too over time?” “Is this concept fully developed or can it be subject to further developed?”

These are some of the questions that come to our mind when we are inspecting the defence. My view on this, prima facie, is that this defence has a broad scope but it is only limited to the cases of negligence. So the expansion of its scope is dependent on negligence. Negligence is basically performance or non-performance of some act which the person had the duty of care ‘to not do’ or ‘to do’. This ‘duty of care’ varies from place to place, country to country and even situation to situation. Hence, we can at the outset is that Volenti Non Fit Injuria doesn’t have a fixed scope altogether! So it can expand be broadened or even be narrowed depending on the situation. The concept has been developed over the course of almost two centuries. It is pretty safe to say that the concept is one of the better developed defences of torts making it clear where it can apply and where it would not. But as pointed out before, as the scope of this defence changes in relation with the change in the duty of care of the person in various situations. The applications of this defence will change with time as the duty of care is not a fixed one, it changes even in the same situation over time. With the help of the research that follows, the above hypothesis will be test and in accordance with the research done, valid conclusions will be drawn.

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4 RESEARCH METHODOLOGY The research methodology followed in making of this project is the DOCTRINAL MEATHOD.

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5 INTRODUCTION 5.1 T ORTS 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 or 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 or “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 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 seek 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.

A Lakshminath, M Sridhar, and Ramaswamy Iyer. 2007. The Law of Torts. http://www.legalserviceindia.com/articles/torts_s.html 3 http://www.lawteacher.net/free-law-essays/contract-law/contract-liability.php 4 Jones Lucy.2013. Introduction to Business Law. Accessed August 20, 2013. 1 2

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“Tortious liability arises from the breach of a duty primarily fixed by law; this duty is towards persons generally and its breach is redress able by an action for unliquidated 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 predefined 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 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.’

A Lakshminath, M Sridhar, and Ramaswamy Iyer. 2007. The Law of Torts. 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. 9 Goudkamp, James. 2011. “A Taxonomy of Tort Law Defences.” Harvard Law School . 5 6

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5.2 GENERAL DEFENCES Some specific defences are available in a suit for tort. These defences are specific and find application in relation to a fixed nature of tort. Other defences are general in nature and can be classified as:       

The defence of Consent When plaintiff is the wrongdoer Inevitable Accident Act of God Act in relation to Private Defence Necessity Act in respect to Statutory Authority

The defence of Consent: This defence is based on the principle of ‘Volenti non fit injuria’. A person, who has voluntarily agreed to suffer harm, cannot claim damages for such harm. This consent to suffer harm can be either express or even implied. How-ever, such consent must be given freely and not obtained by fraud or any other illegal means. When plaintiff is the wrongdoer: This defence is based on the maxim ‘Ex turpi causa non oritur actio’ which means ‘no action rises from an immoral cause’. So, when the action of the plaintiff is unlawful itself, it might lead to a defence in general. Inevitable Accident: Inevitable accident is such where the injury could not have been avoided in spite of reasonable care on part of the defendant. In a suit for tort it is always a good defence if it can be shown that the defendant could not avoid the injury sustained by the plaintiff in spite of his reasonable effort. Act of God: An Act of God is an inevitable accident arising out of the working of natural forces which is beyond human control and unprecedented in nature and type. It must be extraordinary and unanticipated as well. The Rule of Strict Liability (as in Rylands v. Fletcher 10) has incorporated the concept of this defence.

10

Rylands v Fletcher [1868] UKHL 1

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Act in relation to Private Defence: In case of imminent threat to life or property, use of force for defence of the same is justified. However, use of such force must be reasonable and should be in proportion to the requirement. Necessity: If damage is caused to avoid a greater damage, it becomes a good defence. Act in respect to Statutory Authority: Any damage arising out of an act that the law prescribes or the statute authorises will never become actionable even though in absence of such statutory authority it is an offence in tort. (General Defences in Torts, 2016) In this project we will be further discussing the defence of ‘Volenti non fit injuria’, it’s development and it’s various applications

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6 THE MEANING OF VOLENTI N ON FIT INJURIA Volenti non fit injuria is a defence of broad application in law of torts. 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 non fit injuria 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. The requirements of the defence are thus:   

A voluntary Agreement Made in full knowledge of the nature and extent of the risk.

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

6.2 AGREEMENT The second requirement for the defence of volenti non fit injuria is agreement. The agreement may be express or implied. An example of an express agreement would be where there exists a contractual term or notice. However, this would be subject to the controls of s.2 of the Unfair Contract Terms Act 1977. An implied agreement may exist where the Claimant's action in the circumstances demonstrates a willingness to accept not only the physical risks but also the legal risks.

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Smith v Baker & Sons 11 The Claimant sued his employers for injuries sustained while in the course of working in their employment. He was employed to hold a drill in position whilst two other workers took it in turns to hit the drill with a hammer. Next to where he was working another set of workers were engaged in taking out stones and putting them into a steam crane which swung over the place where the Claimant was working. The Claimant was injured when a stone fell out of the crane and struck him on the head. The Defendant raised the defence of volenti non fit injuria in that the Claimant knew it was a dangerous practice and had complained that it was dangerous but nevertheless continued. At trial the jury found for the Claimant. The Defendant appealed and the Court of Appeal allowed the appeal holding that the Claimant was precluded from recovering as he had willingly accepted the risk. The Claimant appealed to the House of Lords. Held

3:2

Decision.

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. Lord Watson: "In its application to questions between the employer and the employed, the maxim as now used generally imports that the workman had either expressly or by implication agreed to take upon himself the risks attendant upon the particular work which he was engaged to perform, and from which he has suffered injury. The question which has most frequently to be considered is not whether he voluntarily and rashly exposed himself to injury, but whether he agreed that, if injury should befall him, the risk was to be his and not his masters. When, as is commonly the case, his acceptance or nonacceptance of the risk is left to implication, the workman cannot reasonably be held to have undertaken it unless he knew of its existence, and appreciated or had the means of appreciating its danger. But assuming that he did so, I am unable to accede to the suggestion that the mere fact of his continuing at his work, with such knowledge and appreciation, will in every case necessarily imply his acceptance. Whether it will have that effect or not depends, in my opinion, to a considerable extent upon the nature of the risk, and the workman's connection with it, as well as upon other considerations which must vary according to the circumstances of each case.” 12

11 12

Smith v Baker & Sons [1891] AC 325 Child, N. G. L. (1905). Volenti non fit injuria. Jurid. Rev., 17, 43.

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6.3 KNOWLEDGE The Claimant must have knowledge of the full nature and extent of the risk that they ran: Wooldridge v Sumner 13 The claimant was a photographer at a horse show. He was situated within the ring of the horse show and not behind the barriers where the spectators were housed. He was on a bench with a Miss Smallwood who was a director of the company which employed the Claimant. He had been taking little interest in the proceedings and was not experienced in regard to horses. During the competition, one of the horses, Work of Art owned by the Defendant, came galloping at great speed towards the bench where they were sitting. The Claimant took fright at the approach of the galloping horse and attempted unsuccessfully to pull Miss Smallwood off the bench. He stepped or fell back into the course of the horse which passed three or few feet behind the bench, and was knocked down. The Claimant brought 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. Held: There was no breach of duty so the Claimant's action failed. On the issue of volenti non fit injuria it was held that consent to the risk of injury was insufficient. There must be consent to the breach of duty in full knowledge of the nature and extent of the risk. Diplock, LJ: "The maxim in English law presupposes a tortious act by the defendant. The consent that is relevant is not consent to the risk of injury but consent to the lack of reasonable care that may produce that risk… and requires on the part of the plaintiff at the time at which he gives his consent full knowledge of the nature and extent of the risk that he ran" 14

13 14

[1963] 2 QB 43 Tort Law: Text, Cases, and Materials by Jenny Steele p.283 (2007)

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7 THE 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.

7.1 KNOWLEDGE AND CONSENT AS AN ELEMENTS OF V OLENTI NON F IT I NJURIA “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 impossible to separate that element from the damage suffered by the claimant.” 15 This point becomes clear when we talk about the case of Ilott vs Wikes 16 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 16 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 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

15

Edito, General, and Ken Oliphant. 2007. The Law of Tort. Lexis Nexis Butterworths. Ilott v. Wikes [1820] 3 Barn. &Ald. 304 17 Bird v. Holbrook [1828] 4 Bing 628 16

Singh, S.P. 2010. Law of tort: Including Compensation Under the Consumer Protection ACT. Universal Law Publishing. 18

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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.” 19 And 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 injuriaYarmouth vs France 20. 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 Quartermaine 21, 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

7.2 I MPLIED CONSENT The case of Thomas vs Quartermine was referred to while deciding the case of Smith vs Baker 24 . 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 defendant has taken reasonable care to avoid the harm as much as possible.

19

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

23 24

Lakshminath, A, and M Sridhar, Ramaswamy Iyer. 2007. The Law of Torts. LexisNexis Butterworths Smith vs Baker [1891] AC 325

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Let us now talk about the case of Hall vs Brookland Auto Racing Club 25, 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 Sumner 26. 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 driven 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 amount of knowledge the plaintiff had, was considered enough to qualify as consent. In the case of Culter vs United Dairies 27, 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 this case. However, this was different from a subsequent case in the year 1935, Haynes v Harwood 28. In the case of Dan vs Hamilton 29, 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.

7.3 KNOWING AND WILLINGNESS Now, 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 25

Hall vs Brookland [1933] 1 KB 205 Wooldridge vs Sumner [1962] 3 WLR 616 27 Culter vs United Dairies [1933] 2 KB 297 28 Haynes vs Harwood [1935] 2 KB 297 29 Dann vs Hamilton [1939] 1 KB 509 26

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office area or in other places. We know of car drivers being negligent 30, or maybe we have even seen drivers who are habitually careful and steady, becoming negligent sometimes 31 . 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 proved, not just negligence.” 33 For 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 of injury. Nothing will suffice short of an agreement to waive any claim for negligence. The plaintiff must agree, expressly or impliedly , to waive any claim for any injury that may befall him due to the lack of reasonable care by the defendant.” 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 Murray 39, 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 factors and is not considered to be free. There have been factors in 30

Membery v Great Western Rly Co [1889] 14 AC 179 Woodley v Metropolitan District Railway Co [1877] 2 Ex D 384 32 [1888] 21 QBD 220 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. 31

36

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

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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 Braddell 41, 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 Williams 45. 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 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 consenter 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 about 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 40

Lunney, Mark, and Ken Oliphant. 2008. Tort Law: Text and Materials

41

Latter v. Braddel [1880] 50 LJQB 166 Bowater v. Rowley Regis Corp [1944] KB 476 43 Edito, General, and Ken Oliphant. 2007. The Law of Tort. Lexis Nexis Butterworths. 44 Slater v. Clay Cross Co. Ltd [1956] 2 QB 264 45 R. v. Williams [1987] 3 All ER 411 46 Burnett v. British Waterways Board [1973] 2 All ER 631 47 Chatterton v. Gerson [1981] 1 All ER 257 42

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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

7.4 EXCEPTIONS TO T HE 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 Board 50. In this case, the plaintiff’s husband had gone from his 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, 48

Gillick v. Norfolk Wisbech Area Health Authority [1986] AC 112 Kirkhom v. Chief Constable of Greater Manchester Police [1990] 2 QB 283 50 Chadwick v. British Railway Board [1967] 2 All ER 945 51 Wagner v. International Railways [1921] 133 NY 437 49

52

Baker v. TE Hopkins and Sons Ltd. [1959] 3 All ER 225 Ogwo v. Taylor [1988] AC 431

53

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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 non fit injuria, “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

54 55

Reeves v. Metropolitan Police Commissioner [2000] 1 AC 360 Edito, General, and Ken Oliphant. 2007. The Law of Tort. Lexis Nexis Butterworths.

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8 THE VARIOUS APPLICATIONS OF V OLENTI NON FIT INJURIA The defence of Volenti non fit injuria has a broad spectrum of applications., mostly in the tort of negligence where the plaintiff’s duty of care is violated. Some of the popular applications are as follows:

8.1 V OLENTI NON FIT INJURIA IN EMPLOYMENT RELATIONSHIPS As long ago as 1891, the House of Lords recognised that an employee who complained of unsafe practice, but nevertheless continued to work could not truly be said to have voluntarily agreed to waive their legal rights: Imperial

Chemical

Industries

Ltd

v

Shatwell

56

The claimants were brothers who were qualified shotfirers employed by the defendant. They were injured as a result of an explosion at the defendant's quarry caused by the brothers' negligence. They had insufficient wire to test a circuit to allow them to test from a shelter. Another worker had gone to fetch more wire but the brothers decided to go ahead and test with the shorter wire. Each brother claimed against the defendant based on their employer's vicarious liability for the negligence and breach of statutory duty of the other brother. The defendant raised the defence of volenti non fit injuria in that the brothers the brothers had full knowledge of the risk and were acting against express instructions. At trial the judge held that the defence of volenti could not apply where there was breach of a statutory duty. This was upheld in the Court of Appeal. Held: The appeal was allowed. The brothers had deliberately acted in defiance of the employer's express instructions in full knowledge of the risks. The workers were under the statutory duty not the employer. The employer had been instrumental in bringing in the statutory regulations and ensured all workers were aware of them. They had also previously dismissed a worker for flouting the regulations.

8.2

V OLENTI NON FIT INJURIA IN RESCUE CASES

A rescuer is not regarded as having freely and voluntarily accepted the risk. 56

Imperial Chemical Industries Ltd v Shatwell [1965] AC 656 House of Lords

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“In the USA, the rescue doctrine of the law of torts holds that if a tortfeasor creates a circumstance that places the tort victim in danger, the tortfeasor is liable not only for the harm caused to the victim, but also the harm caused to any person injured in an effort to rescue that victim.” 57 Justice Cardozo: "Danger invites rescue. The cry of distress is the summons to relief [...] The emergency begets the man. The wrongdoer may not have foreseen the coming of a deliverer. He is accountable as if he had." 58 Baker

v

TE

Hopkins

&

Son

Ltd

59

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 started it up and left the well leaving the engine running on its own. The motor ran for 1 1/2 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. Held: 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 doctor's actions were not unreasonable in the circumstances. The Claimant's 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. Morris LJ:

57

Wagner v. International Railway, [2] 232 N.Y. 176 (1926) Cardozo, Justice in 232 N.Y. 176 (1926) 59 Baker v TE Hopkins & Son Ltd [1959] 1 WLR 966 Court of Appeal 58

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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. In my judgment, the learned Judge came to a correct conclusion in regard to the claim made by his executors. Haynes v Harwood 60 The Defendant left a horse-drawn van unattended in a crowded street. The horses bolted when a boy threw a stone at them. A police officer tried to stop the horses to save a woman and children who were in the path of the bolting horses. The police officer was injured. It was held that the Defendant owed a duty of care as he had created a source of danger by leaving his horses unattended in a busy street.

8.3 VOLENTI NON FIT INJURIA IN THE CASES OF SUICIDE Where the Claimant commits suicide, originally it was held that they would be treated as volens if they were of sound mind, but if they were of unsound mind the defence of volenti non fit injuria would have no application: Kirkham

v

CC

Greater

Manchester

Police

61

Mr Kirkham was an alcoholic and suffered from depression. He had made a two suicide attempts on 6th Jan 1980. He was admitted to hospital but discharged himself the following day. When he arrived home his wife prevented him from drinking and he became violent and started smashing furniture. The police were called and arrested him. His wife informed them of his suicide attempts and discharging himself from hospital and it was agreed that he should be remanded in custody for his own safety. However, the police failed inform the prison authorities that Mr Kirkham was a suicide risk. He committed suicide whilst on remand at Risley Remand Centre. His wife brought an action based on the negligence of the police in failing to pass on the information. The Police raised the defences of volenti non fit injuria and ex turpi causa.

60 61

Haynes v Harwood [1935] 1 KB 146 Kirkham v CC Greater Manchester Police [1990] 2 QB 283 Court of Appeal

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Held: The claimant was successful. The defence of volenti non fit injuria, although normally would apply where a person of sound mind was to take their own life, had no application where a person of unsound mind took their life. The defence of ex turpi causa was not limited to illegal acts but extended also to immoral acts. The court applied the public conscience test and concluded that to allow the claimant to succeed would not affront the public conscience, or shock the ordinary citizen. Lord Justice Lloyd: Where a man of sound mind injures himself in an unsuccessful suicide attempt, it is difficult to see why he should not be met by a plea of volenti non fit injuria. He has not only courted the risk of injury by another; he has inflicted the injury himself. In Hyde v. Tameside Area Health Authority, the plaintiff, who had made an unsuccessful suicide attempt, brought an action for damages against the Health Authority alleging negligence on the part of the hospital staff. Lord Denning doubted whether a defence of volenti non fit injuria would be available in such a case "seeing that [the plaintiff] did not willingly injure himself - he wanted to die". I find that reasoning hard to follow. Any observation of Lord Denning is, of course, entitled to great weight; but the observation was obiter, since the court held that the hospital staff had not been negligent. Moreover, we were told by Mr Foster, who happened to have appeared for the plaintiff in that case, that the point was never argued. So I would be inclined to hold that where a man of sound mind commits suicide, his estate would be unable to maintain an action against the hospital or prison authorities, as the case might be. Volenti non fit injuria would provide them with a complete defence. There should be no distinction between a successful attempt and an unsuccessful attempt at suicide. Nor should there be any distinction between an action for the benefit of the estate under the Law Reform Act and an action for the benefit of dependants under the Fatal Accidents Act. In so far as Pilcher J. drew a distinction between the two types of action in Pigney v. Pointers Transport Services Ltd. 62, I would respectfully disagree. But in the present case Mr Kirkham was not of sound mind. True, he was sane in the legal sense. His suicide was a deliberate and conscious act. But Dr Sayed, whose evidence the judge accepted, said that Mr Kirkham was suffering from clinical depression. His judgment was impaired. If it had been a case of murder, he would have had a defence of diminished responsibility due to disease of the mind.

62

Pigney v. Pointers Transport Services Ltd. 1957 2 All E.R. S07

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I have had some doubt on this aspect of the case, in the light of Dr Sayed's further evidence that, though his judgment was impaired, Mr Kirkham knew what he was doing. But in the end I have been persuaded by Mr Foster that, even so, he was not truly volens. Having regard to his mental state, he cannot, by his act, be said to have waived or abandoned any claim arising out of his suicide. So I would reject the defence of volenti non fit injuria. Reeves

v

Commissioner

of

Police

of

the

Metropolis

63

Martin Lynch committed suicide whilst in a police cell. He had attempted suicide earlier that day in the cells at the magistrates. He had also attempted suicide on previous occasions. He had been seen by a doctor at the police station on arrival who reported that he was not schizophrenic or depressed but was a suicide risk. The custody officer checked him at 1.57 pm and left the hatch open. He was found at 2.05 pm having used his shirt as a ligature secured by the open hatch. He was unable to be resuscitated and died a week later. The defendant argued that as Lynch was of sound mind his voluntary and informed act of suicide broke the chain of causation. Held: The act of suicide was the very thing that the police were under a duty to prevent to treat this as a novus actus interveniens would deprive the duty of any substance. Therefore, the defendant was liable, however damages were reduced by 50% under the Law Reform (Contributory Negligence) Act 1945.

8.4 VOLENTI NON FIT INJURIA IN THE CASE OF SPORTING EVENTS A participant in sporting events is taken to consent to the risk of injury which occurs in the course of the ordinary performance of the sport. Wooldridge v Sumner 64 The claimant was a photographer at a horse show. He was situated within the ring of the horse show and not behind the barriers where the spectators were housed. He was on a bench with a Miss Smallwood who was a director of the company which employed the Claimant. He had been taking little interest in the proceedings and was not experienced in regard to horses. During the competition, one of the horses, Work of Art owned by the Defendant, came galloping at great speed towards the bench where they 63 64

Reeves v Commissioner of Police of the Metropolis [2000] 1 AC 360 House of Lords Wooldridge v Sumner [1963] 2 QB 43

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were sitting. The Claimant took fright at the approach of the galloping horse and attempted unsuccessfully to pull Miss Smallwood off the bench. He stepped or fell back into the course of the horse which passed three or few feet behind the bench, and was knocked down. The Claimant brought 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.

Held: There was no breach of duty so the Claimant's action failed. On the issue of volenti non fit injuria it was held that consent to the risk of injury was insufficient. There must be consent to the breach of duty in full knowledge of the nature and extent of the risk. Diplock LJ: "The maxim in English law presupposes a tortious act by the defendant. The consent that is relevant is not consent to the risk of injury but consent to the lack of reasonable care that may produce that risk… and requires on the part of the plaintiff at the time at which he gives his consent full knowledge of the nature and extent of the risk that he ran"

8.5 VOLENTI NON FIT INJURIA I N RELATION TO DRUNK DRIVERS In Dann v Hamilton 65 it was held that a person accepting a lift from a drunk driver was not to be treated as volens unless the drunkenness was so extreme and so glaring that accepting a lift would be equivalent of to intermeddling with an unexploded bomb or walking on the edge of an unfenced cliff. An example of where this was successfully invoked can be seen: Dann v Hamilton 61 The Claimant was injured when she was a willing passenger in the car driven by the Mr Hamilton. He had been drinking and the car was 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.

65

Dann v Hamilton [1939] 1 KB 509

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Held: The defence was unsuccessful. The claimant was entitled to damages. 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 an 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 driver's degree of intoxication fell short of this degree."

The defence of volenti is now excluded by statute where a passenger was injured as a result of agreeing to take a lift from a drunk car driver. However, in a well-known case of Morris v Murray 66, volenti was held to apply to a drunk passenger, who accepted a lift from a drunk pilot. The pilot died in the resulting crash and the passenger who was injured, sued his estate. Although he drove the pilot to the airfield (which was closed at the time) and helped him start the engine and tune the radio, he argued that he did not freely and voluntarily consent to the risk involved in flying. The Court of Appeal held that there was consent: “the passenger was not so drunk as to fail to realise the risks of taking a lift from a drunk pilot, and his actions leading up to the flight demonstrated that he voluntarily accepted those risks.” 67 This is the distinction between Volenti Non Fit Injuria and the maxim Scienti et Volenti Non Fit Injuria which means, ‘Mere knowledge doesn’t imply consent’.

8.6 VOLENTI NON FIT INJURIA IN THE C ASE OF T RESPASSERS The Occupiers' Liability Act 1984 requires all owners of property to take reasonable steps to make their premises safe for anyone who enters them, even those who enter as trespassers, if they are aware of a risk on the premises. However, the doctrine of

66 67

Morris v Murray [1990] 3 All ER 801 (Court of Appeal) Court of Appeals in [1990] 3 All ER 801

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volenti has been applied to cases where a trespasser exposed themselves deliberately to risk:   

Titchener v British Railways Board 68 Ratcliff v McConnell 69 Tomlinson v Congleton Borough Council 70

In the first case (decided before the Occupier's Liability Act was passed), a girl who had trespassed on the railway was hit by a train. The House of Lords ruled that the fencing around the railway was adequate, and the girl had voluntarily accepted the risk by breaking through it. In the second case, a student who had broken into a closed swimming-pool and injured himself by diving into the shallow end was similarly held responsible for his own injuries. The third case involved a man who dived into a shallow lake, despite the presence of "No Swimming" signs; the signs were held to be an adequate warning.

8.7 VOLENTI NON FIT INJURIA AND EXCLUSION C LAUSES IN A CONTRACT In cases where volenti is based on agreement, that agreement may amount to an exclusion clause. If it does, then it will be subject to the provisions of the Unfair Contract Terms Act, 1977 of UK. This act attempts to exclude liability for negligence are governed by section two of the act. This section operates where the clause attempts to exclude or restrict business liability as defined in Section 1(3) of the act. Section 2(1) 71 operates to defeat any attempt to exclude or restrict liability for death or personal injuries caused by negligence. Section 2(2) 72 applies a test of reasonableness to other types of damage caused by negligence. Section 2(3) 73 states: ‘Where a contract term or notice purports to exclude or restrict liability for negligence a person’s agreement to or awareness of it is not of itself to be taken as indicating his voluntary acceptance of any risk.’ As any agreement between the parties will be covered by the rest of the section, this subsection will only apply where there is no agreement between the parties and the claimant comes upon an already existing risk. 68

69

Titchener v British Railways Board [1983] 1 WLR 1427 Ratcliff v McConnell [1997] EWCA Civ 2679

70

Tomlinson v Congleton Borough Council [2003] UKHL 47 Section 2(1) Unfair Contract Terms Act, 1977 (UK) 72 Section 2(2) Unfair Contract Terms Act, 1977 (UK) 73 Section 2(3) Unfair Contract Terms Act, 1977 (UK) 71

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9 V OLENTI NON FIT INJURIA IN INDIA One of the earliest tort law cases in India took placed in the year 1915,Ganda Singh v Chuni Lal. 74 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 appeared to be a scope for the maxim to be applied. This case was followed by the case of Bai Monghibai vs Doongersey Lakhmidas 75 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...” 76 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 77. 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 74

Ganda Singh v. Chuni Lal [1915] 29 Ind Cas 862 Bai Monghibai v. Doongersey Lakhmidas [1917] 19 BOMLR 887 76 MANU/MH/0044/1917 77 South Indian Industries Ltd v. Alamelu Ammal [1923] 45 MLJ 53 75

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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.” 78 In the year, 1937, came up the case Secretary of State vs Rukhmini Bai 79. 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 80 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 ” 81 In the case of Smt. Mukul Dutta Gupta and Others vs Indian Airlines Corporation 82, in 1962, the plaintiff was Mukul Dutta Gupta , wife of Sanat Dutta Gupta who died in an aeroplane crash, involving the aircraft of the Indian Airlines Corp. The most important debate in this way, whether the plaintiff had knowledge of the conditions of the carriage and had consented to it. The concept of ‘implied consent’ was raised 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 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’ 83 came up. In this case, the defendant had been negligent in fulfilling the statutory duty of safe carriage 78

Singh, SP. 2010. Law of tort: Including Compensation Under the Consumer Protection Act. Secretary of State v. Rukhmini Bai [1937] AIR 354 80 Kallulal v. Hemchand [1958] AIR 48 81 M. Michael, A. Jones, Clerk and Lindsell. 2012. Torts. 82 Smt. Mukul Dutta Gupta v. Indian Airlines Corporation [1962] AIR 311 79

83

Cohen, Kenneth. 2008. Expert Witnessing and Scientific Testimony: Surviving in the Courtroom.

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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.” 84 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 85 . 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 86 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 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 judgement given by a Division Bench of the Gujarat High Court in the case of Sakinabibi v. Belim Gulamhusson Mohammadmiya & Ors 87. 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 88. In this case, the Court held that whoever is the insurer and is supposed to take responsibility 84

Salmond, John. Salmond on Torts. Padmavati v. Dugganaika [1975] ACJ 222 86 Nasibdar Suba Fakir v. Adhia Company [1984] 1 ACC 105 87 Sakinabibi v. Belim Gulamhusson Mohammadmiya and Ors. [1947] 15 GJ LR 428 88 Pushpabai Purushottam Udeshi and Others v. M/s. Ranjit Ginning and Pressing Co. Pvt. Ltd. [1977] 3 SCR 377 85

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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 Others 89 (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 others 90. 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 Hospital 91, 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 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, especially in cases of medical negligence. These type of negligence cases include, prescribing wrong medicine that has led to an injury 92, blood transfusion involving incompatible 93 , leaving a mop in the abdomen of the patient after the operation 94, not providing anaesthesia to a patient during an operation 95, etc. In the year 2001, came up a case called United India Insurance v Goguloth Khanna 96. 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. 89

Channappa Chanavirappa Katti and another v. Laxman Bhimappa Bajantri and Others [1979] AIR 93 Meesala Suryanarayana v. Goli Satyavathi and Others [1979] ACC CJ 513 91 Lakshmi Rajan v. Malar Hospital [2007] 2 CPJ 17 92 Spring Meadows Hospital v. Hajrol Ahluwalia [1998] AIR 1801 93 Kalra Satyanarayana v. Lakshmi Nursing Home [2003] 1 CPJ 262 94 Achutrao Haribhao Khodwa v. State of Maharashtra [1996] 2 SCC 634 95 PN Rao v. G. Jayaprakasu [1950] AIR 201 96 United India Assurance v. Goguloth Khanna [2001] 2 ACC 392 90

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However, it was contended by the Insurance Company that, “the injured/deceased unauthorised 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.” 97 This was contrary to the judgement given in the case of New India Assurance Company v Shri Satpal Singh and Others 98, 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 volenti non fit injuria to apply, it was necessary to show that the villagers had voluntarily entered the lorry, but there 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. 99 , 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 100, 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 Others 101, 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 Others 102. 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 ensured by the owner of the vehicle that the tyres and for that matter every part of the vehicle remains in proper repair and does not go off from the vehicle.” 103 97

Ibid New India Assurance Company v. Shri Satpal Singh and Others [2000] AIR 235 99 V Gangamma v. New India Assurance Co. [1993] 1 ALT 353 100 Puppala Seetaramaiah v. Superintendent Sub Jail [2003] 2 ALD 584 101 Adhikarala Jagadeeswara Rao v. Gopala Krishna Transport and Others [2005] 1 ALD 111 102 Ali Khan v. Vijay Singh and Others [2007] ACJ 350 103 Ali Khan v. Vijay Singh and Others [2007] ACJ 350 98

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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 104.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 105 where, 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 106, the deceased Mohd Umar suffered from fatal injuries due to the bursting of tyre of the vehicle in which he was travelling. 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. 107 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 Company v Rajbir Singh and others 108. 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.

9.1 RECENT T REND OF C ASES I NVOLVING VOLENTI NON FIT INJURIA I N INDIA With 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 109, the concept of a passenger travelling in a vehicle for hire or reward has come up. The principle of contract 104

Smt. Manjula Devi wd/o Awadhesh Kumar v. Commercial Motors [2007] AIR 122 Somnath Chhabra and Others v. The Commissioner and Others [2008] 2 PLR 659 106 United India Insurance Company v. Abdul Rashid and Others [2013] 1 All MR 73 107 Smt. Khaushnuma Begum and Others v the New India Insurance Company Ltd. [2001] 2 SCC 9 108 National Insurance Company v. Rajbir Singh and Others [2013] ACJ 1403 109 Nasibdar Suba Fakir vs Adhia Company AIR 1984 Bom 1 105

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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. 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 110 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.

110

Puppala Seetaramaiah vs Superintendent Sub Jail 2003 (2) ALD 584, 2003

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10 CONTRIBUTORY NEGLIGENCE AND VOLENTI NON FIT INJURIA Whether a person who voluntarily proceeds into an obviously unsafe situation has merely assumed the risk, or has been guilty of contributory negligence in so proceeding, is often a close question. 111 It is held in safe-place law cases that conduct constitutes contributory negligence, rather than assumption of risk, "if the risk of harm involved is of such magnitude as to outweigh what the law regards as the utility of the act or the manner in which it is done.” In other words, if assuming the risk was reasonable under all the circumstances, it is no defense under the safe-place law; if unreasonable, it is contributory negligence. What is "reasonable" is measured by what ordinary and prudent men do under similar circumstances. It appears that submitting to a dangerous situation "while getting about the premises in the ordinary manner provided," and performing duties of employment under conditions created by the employer would be merely assumption of risk; that is, would be examples of utility outweighing dangers. The fact that the hazardous condition was encountered in the course of work is significant. And where defendant landlord had the duty of keeping a stairway lighted, plaintiff tenant was not negligent in proceeding onto the unlighted stairway, and an employee was not negligent in using an obvious unsafe ladder provided by his employer, and an acrobat was not negligent in using the unsafe stage of his sponsors. Unless the defendant can show that the likelihood of injury outweighed the practical usefulness, or utility, of proceeding as plaintiff did under the circumstances, plaintiff cannot be charged with contributory negligence. Also, since the passing of the Law Reform (Contributory Negligence) Act, 1945 112 the defendant’s liability is based on the portion of his fault i.e. both the plaintiff and the defendant, in the case of Contributory Negligence, are at fault. This is not the same in the cases of Volenti Non Fit Injuria. Volenti Non Fit Injuria is an absolute defence.

111

Distinctions Between Assumption of Risk and Contributory Negligence, 23 Wash. & Lee L. Rev. 91 (1966), http://scholarlycommons.law.wlu.edu/wlulr/vol23/iss1/7 112 Sec.1(1) Law Reform (Contributory Negligence) Act, 1945

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11 CONCLUSION In conclusion, we can see from the above research, sources and cases that Volenti Non Fit Injuria, even though just a defence of tort has a broad spectrum of applications but, as we proposed in the hypothesis the scope of this defence is in direct relation with duty of care and the commitment of a negligent act. The application of the defence over time similarly depend on the what is a negligent act in that period of time. As we have seen in the various cases discussed above the application of this defence cannot be limited or fixed for a given situation. E.g.: Iliot v. Wilkes (1820) and Bird v. Holbrook (1828) having a similar situation still have a different application. Due to these variables, we can also conclude that with the changing times, situations, society, law, country, etc., this concept can never stop developing. Hence, it is safe to say that the defence of Volenti Non Fit Injuria will continue to evolve, be interpreted and be applied in various ways over the course of time. The hypothesis is successfully tested to draw valid conclusions.

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