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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