Volenti non fit injuria: A CRITICAL ANALYSIS1

DR.RAM MANOHAR LOHIYA

NATIONAL LAW UNIVERSITY,
LUCKNOW

ACADEMIC SESSION: 2013-14

LAW OF TORTS : FINAL DRAFT
TOPIC: Volenti non fit injuria :A CRITICAL ANALYSIS

Submitted To: Submitted By:

Mrs. Gitu Singh Prachi Verma

Asst. Professor (Law) B.A. L.L.B. (Hons.)

Dr. Ram Manohar Lohiya National 1st Semester

Law University, Lucknow Roll No: 85

 Volenti non fit injuria: A CRITICAL ANALYSIS2

Section: B

ACKNOWLEDGEMENT

It feels great pleasure in submitting this research project to Mrs. Gitu Singh, Asst.
Professor (Law) without whose guidance this project would not have been completed
successfully. Secondly, I would like to express my gratitude towards Prof. Gurdip
Singh, Vice Chancellor and Prof. (Dr.) C. M. Jariwala, Professor, Dean Academics for
their support and encouragement.

Next, I would like to sincerely thank my seniors, whose suggestions and guidance
assisted me throughout the entire tenure of making the project.

Last but not the least, I would like to express my heartfelt gratitude towards my
parents and friends who guided me and helped me at every possible step.

Prachi Verma

B. A. LLB. (Hons.)

1st semester

Roll. No. 85
 Volenti non fit injuria: A CRITICAL ANALYSIS3

TABLE OF CONTENTS

INTRODUCTION......................................................................................................................2

THE DOCTRINE : MEANING AND IMPLICATIONS......................................................3

ESSENTIAL ELEMENTS OF THE DOCTRINE.................................................................4

CONSENT : MEANING AND TYPES.....................................................................................5

EXPRESS CONSENT...........................................................................................................5

IMPLIED CONSENT...........................................................................................................6

FREE CONSENT......................................................................................................................8

Consent obtained by fraud...................................................................................................8

Consent obtained under compulsion...................................................................................8

KNOWLEDGE DOES NOT NECESSARILY IMPLY ASSENT...........................................10

LIMITATIONS OF THE DOCTRINE.....................................................................................12

CONCLUSION........................................................................................................................15
 Volenti non fit injuria: A CRITICAL ANALYSIS4

INTRODUCTION
The word tort is derived from the Latin word tortum which means to twist. It
implies that conduct which is twisted, crooked or unlawful or that which is not
straight. It is the same as the English term wrong. The law of torts as administered
in India in modern times is the English law as found suitable to Indian conditions
and as modified by the Acts of the Indian Legislature. Its origin is linked with the
establishment of British Courts in India. 1 The English law is selectively applied in
India as rules of justice, equity and good conscience.

Tort may be defined as a civil wrong which is redressible by an action for

unliquidated damages and which is other than a mere breach of contract or breach of
trust. Defining tort Salmond says, It is a civil wrong for which remedy is a
common law action for unliquidated damages and which is not exclusively the breach
of a contract or the breach of trust or other merely equitable obligation. On the
other hand, according to Winfield, Tortiuous liability arises from the breach of a
duty primarily fixed by the law: this duty is towards persons generally and its breach
is redressible by an action for unliquidated damages.2

Examples of torts include trespass to land, trespass to person (includes malicious

prosecution, assault and battery), negligence, defamation and nuisance. When the
plaintiff files a suit against the defendant for some tort, claiming damages, on the
condition that all the essentials of that tort are present, the defendant would be liable
for it. Even in such a situation, the defendant might escape his liability. This can be
done by taking plea of some defence. These defences may include volenti non fit
injuria, act of God, plaintiffs own fault, statutory authority, act of state etc.

Harm suffered voluntarily does not constitute a legal injury and hence, is not
actionable. This principle has been embodied in the maxim volenti non fit injuria
which literally means that to which a man consents, cannot be complained of as an
injury. The claimant is not allowed to complain of harm to the chances of which he

1 Justice G. P. Singh, Ratanlal & Dhirajlals The Law of Torts, LexisNexis Butterworths Wadhwa,
Nagpur, 25th edn., Reprint 2009, Pg. No. 1.

2 Dr. R.K. Bangia ,Law of Torts, Allahabad Law Agency, 22nd edn., 2012, Pg No. 4.
 Volenti non fit injuria: A CRITICAL ANALYSIS5

has exposed himself with knowledge and of his free will and for this reason, his
consent proves to be a really good defence against him.

THE DOCTRINE : MEANING AND IMPLICATIONS

Volenti non fit injuria [Latin: to the consenting, no injury is done 3] is a common
law doctrine which states that if someone willingly places himself/herself in a position
where harm might result, having the full knowledge that some degree of harm might
result, then he/she cannot bring a claim against the other party in tort. The doctrine
only applies to the risk which a reasonable person could have considered to have
been present having assumed by his/her actions. Harm suffered voluntarily does not
constitute a legal injury and is not actionable. One cannot enforce a right which he
has voluntarily waived or abandoned.

If the assent is to the infliction of harm on or, at any rate, to the use of the
plaintiffs property, such assent is more usually styled as leave and license of the
plaintiff. It is suggested by some people that the more appropriate maxim should
have been volenti non fit periculam injuria, meaning to the person who is willing,
the danger of injury does not arise, as it refers more particularly to personal injuries.
For the defence of volenti non fit injuria to be available, the act causing the harm
must not go beyond the limit of what has been consented. In case a person is
incapable of giving his/her consent because of insanity or minority, then consent of
such persons parent or guardian is sufficient to make the doctrine available as a
defence.

For the defence to be available, it has to be proved by the defendant that the
plaintiff was fully aware of the risks involved, which included, both the nature of
risk as well as the extent of the risk. Secondly, the plaintiff should have had either
expressly (by statement or in writing) or impliedly (by his actions) consented to
waive all claims for damages. It must also be noticed that during the application of
the maxim mere knowledge of the risk involved does not mean that consent was
there, that is, sciens non est volens (knowing is not volunteering). The presence of
free consent is necessary. It is clear that consent may be implied from conduct as

3 http://legal-dictionary.thefreedictionary.com/Volenti+non+fit+injuria [last accessed on: 5/10/2013]

 Volenti non fit injuria: A CRITICAL ANALYSIS6

well as expressed in words so that the defendant escapes liability if he was justified
in inferring that the claimant consented even though, secretly, he did not. 4

ESSENTIAL ELEMENTS OF THE DOCTRINE

For the defence of volenti non fit injuria to be applicable, the following essentials
must be present:

There should be an agreement.

The agreement should have been entered into voluntarily.
The agreement should have been made in full knowledge of the nature and
extent of the risk involved.

1. There should be an agreement.

An agreement should have been entered into in the first place for the defence to be
applicable. 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.5

2. The agreement should have been entered into voluntarily.

For the defence to be available, it is necessary to show that the plaintiff consented to
the act done by the defendant. This consent should be free and should not be the
one obtained by fraud or under compulsion. The agreement must have been voluntary
and freely entered into.

3. The agreement should have been made in full knowledge of the nature and
extent of the risk involved in the act.

The consent must have been given while knowing the extent of risk involved. For
the defence of volenti non fit injuria to be applicable, the one claiming it (defendant)
4 W V H Rogers, Winfield and Jolowicz on Tort, Sweet & Maxwell Limited, London, 17th edn., 2006, Pg. No.
1059.

5 http://www.e-lawresources.co.uk/Volenti-non-fit-injuria.php [last accessed on: 05/10/2013]

 Volenti non fit injuria: A CRITICAL ANALYSIS7

must prove that the plaintiff had the full knowledge of the nature and extent of the
risk involved. But mere knowledge does not imply assent. Having complete
knowledge of the risk, the plaintiff should also have had agreed to suffer the harm.

CONSENT : MEANING AND TYPES

The very essence of the defence of volenti non fit injuria lies in the presence of
consent. Thus, consent is the most important requirement for this particular doctrine
to be available as a defence in torts. In fact, the doctrine of volenti non fit injuria is
itself referred to as the defence of Consent many a times. When you invite a
person to your house, you cannot in any case sue him for trespass. It is for the
simple reason that you yourself had consented for it. You cannot claim for the
enforcement of a right which you had voluntarily waived or abandoned. Also, the act
done by the defendant must be the same for which the consent has been given. If a
person is incapable of giving his consent because of insanity or he being minor,
consent of his parent or guardian is sufficient.

Consent can be of two types:

Express consent
Implied consent

EXPRESS CONSENT:

Express consent is the kind of consent which is not implied, but is clearly and
unmistakably stated. Express consent may be oral or written. If risks are determined
to be those on some grave matter, then consent is generally written. An example of
express consent in written form is that of the agreements entered into before doing
surgical operations. In such cases, you expressly consent to the risk involved in the
operation through a written agreement. When a person invites others to enter into his
premises, or allows others to take his goods, or submits to a surgical operation or
medical treatment his consent is said to be express.

In the case of Maung Sein v. Emperor6, Ma Thin On, with the full knowledge of the facts
and with her own free will and choice, allowed an unqualified midwife named Daw So to

6 AIR 1935 Rang 471.

 Volenti non fit injuria: A CRITICAL ANALYSIS8

attend the birth of a child to her. Ma Thin On died at childbirth. It was held that the defence
of volenti non fit injuria was available to the midwife and Ma Thin On would not have been
entitled to damages in a suit against Daw. This was a case of express consent.

While, express consent was also witnessed in the case of R. v. Williams7, where the
defendant was a singing coach. He told one of his pupils that he was performing an
act to open her air passages to improve her singing. In fact he was having sexual
intercourse with her. She gave the consent though it was held that her consent was
vitiated by fraud as to the nature and quality of the act and thus, the defence was
not given.

IMPLIED CONSENT:

Implied consent is a controversial form of consent which is not expressly granted by

a person, but rather inferred from a person's actions and the facts and circumstances
of a particular situation or in some cases, it might be inferred from a person's silence
or inaction as well. It lies upon the reliance on interpreting ones compliance as
consent.

An example could be seen in Hall v. Brooklands Auto Racing Club 8, the plaintiff
was a spectator at a motor car race being held at Brooklands on a track owned by
the defendant company. During the race, there was a collision between the two cars,
one of which was thrown among the spectators, thereby injuring the plaintiff. It was
held that the plaintiff impliedly took the risk of such injury, the danger being
inherent in the sport which any spectator could foresee, the defendant was not liable.

As regards spectators at a game, the law has been stated to be as follows: A person
attending a game or competition takes the risk of any damage caused to him by an
act of a participant done in the cause of and for the purposes of the game or
competition notwithstanding that such act may involve an error of judgement or a

7 (1923) 1 KB 340.

8 (1932) All ER 208: (1932) 1 KB 205.

 Volenti non fit injuria: A CRITICAL ANALYSIS9

lapse of skill, unless the participants conduct is such as to evince a reckless

disregard of the spectators safety.9 The facts in this case of Wooldridge v. Sumner
went like this. The plaintiff, who was a photographer, was taking photographs at a
horse show while he was standing at the boundary of the arena. One of the horses,
belonging to the defendant, rounded the bend too fast. As the horse galloped
furiously, the plaintiff was frightened and he fell into the horses course and there he
was seriously injured by the galloping horse.10 The defence of volenti non fit injuria
was applicable and was given to the defendant.
In Padmavati v. Dugganaika11, while the driver was taking the jeep for filling petrol
in the tank, two strangers took lift in the jeep. Suddenly one of the bolts fixing the
right front wheel to the axle gave way toppling the jeep. The two strangers were
thrown out, as a result of which they sustained injuries, and one of them died.

It was held that neither the driver nor his master could be made liable, firstly,
because it was a case of sheer accident and, secondly, the strangers had voluntarily
got into the jeep which indicated implied consent on their part as to the possible risk
that could have been involved after taking the lift and as such, the principle of
volenti non fit injuria was applicable to this case.

9 Wooldridge v. Sumner (1962) 2 All ER 978.

10 http://notes-law.blogspot.in/2008/08/law-on-torts-part-1.html [last accessed on: 11/10/2013]

11 (1975) 1 Kam LJ 93.

 Volenti non fit injuria: A CRITICAL ANALYSIS10

FREE CONSENT
For the defence of volenti non fit injuria to be available, it also has to be proved
necessarily that the plaintiffs consent given to the act that was done by the
defendant was free and not under any kind of undue influence. A consent that has
been obtained by fraud or under compulsion or under some mistaken impression,
imposition, coercion, influence of a drug or misrepresentation provides no help to the
defendant in escaping his liability. Moreover, the act done by the defendant
must be the same for which the consent had been given. In case a
person is incapable of giving his/her consent because of his/her insanity, then the
consent of such persons parent or guardian is sufficient.

Consent obtained by fraud:

Consent obtained by fraud is fake and as such it does extend no sort of help to the
defendant in escaping his liability. Fraud itself vitiates consent. But mere concealment
of facts might not be held as such a fraud as to vitiate ones consent. In the case of
R. v. Williams12, the accused, a music teacher, was held guilty of rape when he had
sexual intercourse with a girl student of 16 years of age under the pretext that his
act was an operation to improve her voice. Thus, the girl had consented to the act
under the wrong impression that her teacher was performing some surgical operation
and this was not considered to be a consent that could excuse the accused from his
liability.

Consent obtained under compulsion:

When consent is given under the circumstances where the person does not have the
freedom of choice and is forced to do so is not the proper consent. There may be a

12 (1923) 1 KB 340.
 Volenti non fit injuria: A CRITICAL ANALYSIS11

situation where the person is knowingly compelled to undertake some risky work
which, if he had free choice, he would not have undertaken. Such a case is generally
witnessed in a master-servant relationship.

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 conditional, so that he may be able to choose
wisely, but the absence of any feeling of constraint so that nothing shall interfere
with the freedom of his will. 13 In the case of Bowater v. Rowley Regis
Corporation14, the plaintiff, a cart driver, was asked by the defendants foreman to
drive a horse which to the knowledge of both was liable to bolt. The plaintiff
protested but at the end submitted to what he had been asked to do. The horse
bolted and the plaintiff was hurt in the process. It was held that the maxim of
Volenti non fit injuria does not apply here and the plaintiff was entitled to recover.

It was made clear in the same case by Goddard L.J. that maxim of volenti non fit
injuria is one which in case of master and servant is to be applied with great
caution. It can hardly be applicable where the act to which the servant is said to be
volens arises out of his ordinary duty, unless the work for which he is engaged is
one in which danger is necessarily involved. A man, however, whose occupation is
not one of a nature inherently dangerous but who is asked or required to undertake a
risky operation is in a different position....it is not enough to show that whether
under protest or not, he obeyed an order or complied with a request which he might
have declined as one which he was not bound to obey or to comply with. It must
be shown that he agreed that what risk there was should lie on him.

13 Bowater v. Rowley Regis Corporation, (1944) KB 476, 479, PER Scott. LJ.

14 (1944) KB 476.
 Volenti non fit injuria: A CRITICAL ANALYSIS12

KNOWLEDGE DOES NOT NECESSARILY IMPLY ASSENT

There is a minute distinction between assent and knowledge when it comes to the
application of this particular doctrine. Knowledge does not necessarily imply assent. It
has to be noted that the maxim is volenti non fit injuria and not, scienti non fit
injuria. Mere knowledge of the impending wrongful act or the existence of a
wrongfully caused danger does not in itself amount to consent even though no
attempt is made by the plaintiff on his/her part to prevent or avoid that particular act
of danger.

Knowledge is not a conclusive defence in itself. But under such circumstances where
knowledge itself implies that the risk had been voluntarily encountered, then the
defence is complete. Just because one person had the knowledge of the risk involved
does not imply that he consented to take the risk. For the maxim of volenti non fit
injuria to apply, two points have to be proved:15

i. The plaintiff knew that the risk is there.

ii. He, knowing the same, agreed to suffer the harm.

In the leading case of Smith v. Baker16, the plaintiff was employed in the defendants
stone quarry and had worked there for months with full knowledge of the fact that
he was exposed to danger by reason of the negligent practice of the defendant in

15 Supranote 2 Pg. No. 37.

16 (1891) AC 325.
 Volenti non fit injuria: A CRITICAL ANALYSIS13

swinging stones over the quarrymens heads by means of a crane. The plaintiff
having been injured by the fall of the stone, it was held that his knowledge of and
acquiescence in the danger did not per se prevent his recovering damages but were
merely evidence for the jury on the question whether he had agreed to take the risk
upon himself. Thus, knowledge of the risk and its acceptance are not one and the
same thing.

In the case of Yarmouth v. France17, the plaintiff, a carter had remonstrated to his
master, the defendant, that the horse which he had been asked to drive was vicious
and hence unfit for the purpose of the drive. Nevertheless, he was asked by the
defendant to drive the horse and in doing so he sustained damage. In the action
brought by the injured driver claiming damages from the defendant, the latter was
held liable and his plea that the plaintiff should not have undertaken the drive was
rejected.

In a Madras case, South Indian Industrials v. Alamelu Ammal18, the defendants were
carrying on the business of breaking up of cast iron by dropping of heavy weight on
the iron as a result of which the broken pieces of cast iron used to fall at distance
of 4 to 5 yards. One of those pieces struck the plaintiff standing at the distance of
more than 70 yards. The defendant took the plea of volenti non fit injuria as the
plaintiff was an employee. The defendant was held liable for he could not prove that
the plaintiff fully appreciating the risk, had freely and voluntarily accepted the risk.

In T.C. Balakrishnan Menon v. T.R. Subramaniam, 19 an explosive made out of a

coconut shell filled with explosive substance, instead of rising in the sky and
exploding there, ran at a tangent, fell amidst the crowd and exploded, causing serious
injuries to the respondent. The minor represented by his father sued for damages on
account of injuries sustained by him by the explosion. The lower court also found
out that the accident was caused by the negligence of the defendant, the independent
contractor. The defence of volenti non fit injuria in this case was not given. Certain

17 (1887) 19 QB 647.

18 (1932) 17 LW 495.

19 AIR 1968 Ker 151.

 Volenti non fit injuria: A CRITICAL ANALYSIS14

area around the fireworks show had been cordoned. It was held that If the first
respondent entered the area within the cordon and sustained injuries, he might be
considered to be a volunteer; but to argue that everyone who stood anywhere in the
maidan, a very extensive and large area open to the public, is a volunteer, is to
contend for something bordering on the preposterous. Thus, the appeal was
dismissed.

It can be inferred from the decision that just because the plaintiff knew of the danger
involved, it cannot be claimed that he had accepted and assumed the risk and that he
was a volunteer. There was no actual consent and thus, the maxim volenti non fit
injuria failed to apply.

LIMITATIONS OF THE DOCTRINE

There are certain situations in which the scope of application of the doctrine of
volenti non fit injuria has been curtailed. The limitations to the application of the
doctrine are as follows:

When there is consent for an unlawful act, the doctrine comes nowhere in the
picture. No consent can be said to have legalised an unlawful act. In the case
of Lane v Holloway,20 the defendant, aged 23, owned a cafe close to where
the claimant lived. The cafe was frequented by youths late at night. The
claimant objected to the behaviour of the youths and the relations between the
two were strained. One night, the claimant shouted abuse at the defendant's
wife from outside their house. The defendant got up and went outside. The
claimant, thinking he was about to be hit, punched the defendant. The
defendant then struck the claimant in the eye, as a result of which he received
eighteen stitches. It was held that neither volenti non fit injuria nor extur pi
causa non oritur actio applied and the plaintiff was entitled to full
compensation for the injury.

20 (1967) 3 All ER 999(HL).

 Volenti non fit injuria: A CRITICAL ANALYSIS15

The maxim does not apply when there is an action that is based on a breach
of statutory duty. In the case of Wheeler v. New Merton Board Mills Ltd. 21,
the defendants installed in their factory - as part of the plant with the
intention that it should be used by their employees - a dangerous machine
which was not fenced or guarded as required by the Factory and Workshop
Act 1901. Owing to the condition of the machine the plaintiff, a workman in
the employment of the defendants, was injured by it in the course of his
work. It was found that it was not by the negligence of the defendants but of
their foreman that the machine had been allowed to be used in the condition
in which it was at the time of the accident. It was held by the trial judge
that the defence of volenti non fit injuria had no validity against an action
based on breach of statutory duty.

When the plaintiff voluntarily encounters a risk to rescue somebody from an

imminent danger created by the wrongful act of the defendant, he cannot be
met with the defence of volenti non fit injuria. In Haynes v. Harwood22, the
defendants servant left a two horse van unattended on the street. A boy
deliberately threw a stone on the horses and they bolted, causing grave danger
to women and children on the road. A police constable, who was on duty in a
nearby police station, on seeing the same, managed to stop the horses, but in
doing so, he hurt himself and got some serious injuries. It being a rescue case
the defendant was not able to use the defence of volenti non fit injuria and
defendants were held liable. In the present case Greer L.J. adopting the
American rule said that, The doctrine of the assumption of risk does not
apply where the plaintiff has, under an exigency caused by the defendants
wrongful misconduct, consciously and deliberately faced a risk, even of death,
to rescue another eminent danger of personal injury or death whether the
person endangered is one to whom he owes a duty of protection, as a member
of his family, or is a mere stranger to whom he owes no such special duty.

21 (1933) 2 KB 297.

22 (1935) 1 KB 146.
 Volenti non fit injuria: A CRITICAL ANALYSIS16

In Baker v. T.E. Hopkins & Son Ltd. 23, Mr. Ward and Mr. Wileman were
employed by the defendant, Hopkins. Due to the negligence of employer, a
well got filled with poisonous fumes of a petrol driven pump and Mr. Ward
and Mr. Wileman were overcome by the fumes. Dr. Baker was called but told
not to enter the well due to the risk involved. Still, Dr. Baker went inside to
seek to rescue the two. Unfortunately all three died of carbon monoxide
poisoning. The doctors wife sued the workmens employers to claim
compensation for her husbands death. It was held that the act of rescuer was
the natural and probable consequence of the defendants wrongful act which
the latter could have foreseen, and therefore, the defence of volenti non fit
injuria was not given.
For the defence of volenti non fit injuria to be available it is necessary to
prove that defendant was not negligent in his conduct. When the plaintiff
consents to take some risk, the presumption is that the defendant would not be
negligent. For example, suppose the plaintiff had to undergo a surgery, he
would have no right of action if the operation is unsuccessful, because the
plaintiff had himself consented to risk. But he will surely have a right to
action if that the operation became unsuccessful due to the negligence of the
doctor. In Dann v. Hamilton24, 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. The defence was not given and the claimant was entitled to
damages.
The scope of the defence also stands curtailed when the act of the plaintiff for
which the defence under the maxim has to be claimed is the same act which
the defendant had a duty to prevent. In Kirkham v. Chief Constable of
Greater Manchester25, Mr Kirkham was an alcoholic and suffered from

23 (1951) 1 WLR 966.

24 (1939) 1 KB 509.

25 (1990) 2 QB 283.
 Volenti non fit injuria: A CRITICAL ANALYSIS17

depression. He had made two suicide attempts. He was admitted to hospital

but discharged himself the following day. At home, he became violent. The
police was called. His wife informed them of the whole situation and it was
agreed that he should be remanded in custody for his own safety. However,
the police failed to 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 defence of volenti non fit injuria was not given
to the police as the officers owed a greater duty of care and they had
breached that duty; so the maxim was not applicable.

CONCLUSION
Volenti non fit injuria is a Latin maxim which acquires the position of a good
defence in tort law. It helps the defendant in escaping liability for the act done by
him as the other person had consented, or at the least assented, to the doing of the
act which caused his/her harm.

The maxim, firstly, aids the defendant in avoiding liability for the intentional acts
done which would otherwise had been tortious. Secondly, the doctrine of volenti non
fit injuria applies when consent is given to run the risk of some harm which would
otherwise have been actionable. Whenever the defence of volenti non fit injuria
applies, it operates as a complete defence and thereby, absolving the defendant of all
liability as the claimant had himself consented to run the risk of the harm that might
have been caused in the course of action or due to it.

The maxim comes into play as a defence only when all three of its essentials are
present in the strict sense, that is, there should have been an agreement for the act
 Volenti non fit injuria: A CRITICAL ANALYSIS18

done, the claimant should have had the full knowledge of the risks involved and also
he/she should have freely consented to run the risk involved. The implications of
knowledge of risk involved and consent being free from any sort of duress are quite
specific and defined. These are the areas failing in which the scope of the defence
has stood curtailed many a times as discussed in the paper. The doctrine volenti non
fit injuria is an incomplete, though good defence in torts since its scope as a
defence has got restricted many a times despite all the essentials being present.

Conclusively, the defence of volenti non fit injuria is the one of limited application
in tort law. The defendants negligence may rule out the application of the defence of
volenti non fit injuria at times. At other times, the scope of the defence gets
obstructed due to other limitations mentioned in the paper earlier. When the maxim
operates, it helps the defendant in escaping liability completely and thus, overall
volenti no fit injuria proves to be a good defence in torts.

BILBIOGRAPHY

BOOKS:

Bangia, Dr. R. K., Law of Torts, Allahabad Law agency, Faridabad ,

22nd edn., 2011.

Singh, Justice G. P., Ratanlal & Dhirajlals The Law of Torts,

LexisNexis Butterworths Wadhwa, Nagpur, 25th edn., Reprint 2009.

McBride, Nicholas J, Roderick Bagshaw, Tort Law, Pearson

Education, Delhi, 1st edn., 2003.

Rogers, W V H, Winfield and Jolowicz on Tort, Sweet & Maxwell

Limited, London, 17th edn., 2006.

WEBSITES:

http://www.e-lawresources.co.uk/Volenti-non-fit-injuria.php
 Volenti non fit injuria: A CRITICAL ANALYSIS19

http://notes-law.blogspot.in/2008/08/law-on-torts-part-1.html
http://legal-dictionary.thefreedictionary.com