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    Thursday, 9 March 2017

    Maxim 'volenti non fit injuria' and exceptions

    1. Volenti non fit Injuria or Leave and license
    One of the recognized general defenses to liability in tort is that the plaintiff consented or assented to the doing of an act which caused harm to him. This is known as volenti non fit injuria, or Leave and License.

    2. Harm suffered voluntarily
    Harm, suffered voluntarily, does not constitute a legal injury and is not actionable. A man cannot 6ornplain of harm to the chances of which he has exposed himself with, knowledge and of 'his free will. One who has invited of assented to an 'act 'being done towards him cannot, when he I suffers from it complaint of it as a wrong.

    3. Application
    The maxim applies, in the first place to intentional acts which would otherwise be tortuous. For example, a person who trespasses on the land of another with the ,knowledge, that there are spring guns in the wood or dangerous spots, cannot claim damages for an injury suffered by accidentally treading on intent wire communicating with the gun and thereby letting it off.

    In the second place, the maxim applies to consent to run the risk, of accidental harms which would otherwise be actionable. In such type of harms, in the absence of consent of the plaintiff, the defendant would be liable for a breach of duty of care. Consent exempts the defendants from the duty of care and hence excludes his liability for negligence.

    4. Full knowledge is necessary for consent
    It is necessary that the consent must be based on full knowledge of the facts. In a case, the court did not accept this argument .and held that the maxim of volenti non fit injuria did not apply in this case because when the plaintiff signed as a competitor he did not have full knowledge of the risk which might arise from the defective lay-out of the ropes and that he had not willingly accepted the risk of injury which could arise from the fault of the defendants.

    5. Limitations of the Maxim
    The limitations of the maxim may be as under:

    (i) Consent must be voluntary and free
    (ii) Knowledge does not necessarily imply assent or consent
    (iii) Consent must not generally be to illegal acts
    (iv) The maxim does not apply to cases of negligence
    (v) The maxim does not apply to rescue cases

    Consent must be voluntary and free
    One of the limitations of the maxim is that the consent must be freely given. If the plaintiff has no free choice or the consent has been obtained by fraud, coercion, misrepresentation, undue influence or mistake, the maximum volenti non fit injuria will not apply.

    b. Knowledge does not necessarily imply assent or consent
    Knowledge does not necessarily imply assent or consent, mere knowledge of the risk of danger is not sufficient, knowledge of the risk is necessary but it alone cannot attract the application of the maxim. For application of the maxim, the plaintiff must not only have the knowledge, but also the consent to run the risk.

    c. Consent to Illegal acts
    Consent to Illegal acts, if a person is charged with a criminal offence, he' cannot avoid his liability on the ground that the victim consented to the commission of the crime.

    d. Application of the maxim in cases of negligence
    Application of the maxim in cases of negligence, the plea of volenti non fit injuria can succeed if the defendant establishes that the plaintiff consented to run the risk. But even when it is shown that the plaintiff assented to bear the risk, usually it does not include the negligence of the defendant.

    e. Rescue cases

    Another limitation of the maxim volenti non fit injuria is that it does not apply to rescue cases. That is to say, in rescue case although the plaintiff voluntarily takes a risk to save somebody from the danger caused by the wrongful act of the defendant, yet the defendant will not succeed on the plea of volenti non fit injuria. A police man (plaintiff) saw the horses and in order to save several persons on the street who were in danger of being injured, he darted out and seized one of the horses and succeeded in pulling them up. But in doing so he himself was seriously injured. It was held that the defendant was liable. 
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