Volenti non fit injuria

Adyasree Prakriti Sivakumar

Volenti non fit injuria“, is a Latin maxim, on literal translation, means To a willing person, injury is not done. This is a common law doctrine which states if someone is willingly places themselves in a position where harm might result, the party so placed cannot claim damages or compensation. This doctrine is used in the Law of Torts as a defense to prove that the wrong wasn’t committed by the sued party. The Law of Tort is a branch of law that mainly deals with civil wrongs. Civil wrongs are wings that cause a certain harm or injury to a person due to the actions of another. “Volenti” is also known as “Voluntary assumption of risk”.  It also sometimes described as the plaintiff “consenting to a risk”. The consent may be implied, that is through actions or conduct, or expressed, that is through written agreements or official documents with a proper witness or an attestor.

Yet, there continues to exist a distinction between Volenti and Legal Consent. For example, of a person allows his friend or a known person into his house or land or house then, that persons cannot claim damages or compensation for such action as he had legally consented to the entry without stopping them at the entrance. Such a claim for trespass is invalid due to the legal consent of the plaintiff.

In English tort law, Volenti is a full defense, that is it releases the defaulter from the duty or obligations, provided that the defaulter succeeds in proving that the action was Voluntary and not involuntary or coercive. The defense has two main elements:

  1. The claimant was fully aware of all the risks including both the nature and the extent of the risk; and
  2. The claimant expressly (by statement) or implicitly (by actions) consented to waive all claims for damages.

Another point that has to be noted here is that, mere knowledge of the risk is not sufficient. Thus, giving rise to another maxim, sciens non est volens, which means that, “Knowing is not volunteering”. The consent must be free, that is without any undue influence, coercion or stress by the defendant on the claimant. If there is a doubt on the relationship, as to if the consent was free or not, then the courts are unlikely to hold it Volenti or voluntary. The best example for such a relationship is that of employers and workers/ employees. In their relationship there is always a pressure on the employee to work as per the standards of the company. And if the employee doesn’t carry out the job properly or complains about the employer regards certain issues, he is immediately threatened of his job and is made silent. In such cases the defense of Volenti non fit injuria, cannot be taken.

Consent to medic, treatment or consent to risky sports on the part of the claimant excludes liability on tort where that consent is informed consent.

The ratio of this maxim is basically to protect the defendant in many a cases, with certain exceptions.

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