Volenti non fit injuria

Thomas Sim PEA2066

Q.
Explain 'Volenti Non Fit Injuria'. How is this principle affecting tortuous claims?

A.
Volenti non fit iniuria (or injuria) (Latin: "to a willing person, injury is not done") is a common law doctrine which states that if someone willingly places themselves in a position where harm might result, knowing that some degree of harm might result, they are not able to bring a claim against the other party in tort or delict.

Volenti only applies to the risk which a reasonable person would consider them as having assumed by their actions; thus a boxer consents to being hit, and to the injuries that might be expected from being hit, but does not consent to (for example) his opponent striking him with an iron bar, or punching him outside the usual terms of boxing. Volenti is also known as a "voluntary assumption of risk."

In defence of claim, if volenti non fit injuria is found to be present, the claim is dismissed. The reason is the claimant has full consent to the risk of being harmed. The duty of care and breach of that duty is no more negligent of the defendant.

However, defendant when using volenti, might fail to defend the claim because of consequences that further events might have proven it wrong.

For example, when a doctor tried to save a man caught in a well, he did it voluntarily as a doctor, but succumbed to the noxious gas inside the enclosure, subsequently died. Although it was volenti, but the court held that he was doing it under his profession, to rescue life.

For reasons of policy, the courts are reluctant to criticise the behaviour of rescuers. A rescuer would not be considered volens if:

  1. He was acting to rescue persons or property endangered by the defendant’s negligence;
  2. He was acting under a compelling legal, social or moral duty; and
  3. His conduct in all circumstances was reasonable and a natural consequence of the defendant’s negligence.

An example of such a case is Haynes v. Harwood [1935] 1 KB 146, in which a policeman was able to recover damages after being injured restraining a bolting horse: he had a legal and moral duty to protect life and property and as such was not held to have been acting as a volunteer or giving willing consent to the action - it was his contractual obligation as an employee and police officer and moral necessity as a human being to do so, and not a wish to volunteer, which caused him to act. 

In this case the court of appeal affirmed a judgement in favor of a policeman who had been injured in stopping some runaway horses with a van in a crowded street. The policeman who was on duty, not in the street, but in a police station, darted out and was crushed by one of the horses which fell upon him while he was stopping it. It was also held that the rescuer's act need not be instinctive in order to be reasonable, for one who deliberately encounters peril after reflection may often be acting more reasonably than one who acts upon impulse.
Ref:
https://en.m.wikipedia.org/wiki/Volenti_non_fit_injuria