Introduction

The

Consent Must Be Free Consent Obtained By fraud Consent Obtained Under Compulsion Mere Knowledge Does Not Imply Assent Negligence Of The Defendant Limitations On The Scope Of Doctrine: I. Rescue Cases II. Unfair Contract Terms Act 1977 (England) Difference between volenti nonfit injuria and contributory negligence

When a person consents to the infliction of some harm upon himself, he has no remedy for that in tort. In the case of volenti non fit injuria consent of the plaintiff serves as the good defense against him. The consent may be implied or inferred from the conduct of the parties. E.g.: A player is deemed to any hurt which may be likely in the course of game. For the defence of consent to be available, the act causing the harm must not go beyond what is consented. If there is a deliberate injury caused by another player defence of volenti cannot be pleaded.

 For

the defense to be available , it is necessary to show that the plaintiff's consent to the act done by the defendant was free. If the consent of the plaintiff has been obtained by fraud or under compulsion or under some mistaken impression, such consent does not deserve good defense. The act done by the defendant must be same for which the consent is given. E.g.: if you invite some person to your house you cannot sue him for trespass, but if he is consented to seat in the bedroom and he comes to your bedroom ,he will be liable for trespass .

 Consent

obtained by fraud is not real that does not serve as a good defense.

If

the plaintiff knows the nature of the act done and then the consent is given, then the defendant is not liable for the consequences of the act.

 Consent

obtained under such circumstances when the person does not have the freedom of choice is not a proper consent. If a person gives his consent in the state of compulsion, it does not imply that he has agreed to suffer the consequences of the risky job he has undertaken. There is no volenti fit injuria, when the person is compelled do some work inspite of his protests.

 For

the maxim volenti non fit injuria to apply two points have to be proved: a) The plaintiff knew the risk is there b) He, knowing the same, agreed to suffer the harm
If

only first of these points is present, it is knowledge of the risk, it is no defense. Merely because the plaintiff knows of the harm that does not imply that he assents to suffer it

For the defense to be available, it is further necessary that the act done must be the same to which the consent has been given. E.g.: A player is deemed to the injuries in the course of game, but if he is deliberately or negligently hit by another player, that player is liable for his injury and he cannot plead volenti non fit injuria

When the plaintiff consents to take some risk it is presumed that the defendant will not be negligent E.g.: if a person submits to the risk of a surgery he cannot held the surgeon liable if the surgery is unsuccessful, but if the surgeon was negligent then he can be held liable

 The

scope of the doctrine of volenti non fit injuria has been curtailed: I. Rescue Cases. II. Unfair Contract Terms Act 1977 (England)
In

spite of the fact that the plaintiff has consented to suffer the harm, he may be still entitled to his actions against the defendant in these exceptional situations.

 Rescue

Cases form an exception to the application of the doctrine of volenti non fit injuria. When the plaintiff voluntarily encounters a risk to rescue somebody ferom an imminent danger created by the wrongfull act of the defendant, he cannot met with the defense of non volenti injuria

 Unfair

Contract Terms Act, 1977 limits the right of a person to restrict or exclude his liability resulting from his negligence by a contract term, or by notice. Section 2 of the act contains following provisions:

1)

2)

3)

A person cannot by reference to any contract term or to a notice given to a person generally or to a particular persons exclude or restrict his liability for death or personal injury resulting from negligence. In the case of other loss or damage, a person cannot so exclude or restrict his liability for negligence except in so far as the term or notice satisfies the requirement of reasonableness. When a contract term or notice purports to exclude or restrict liability for negligence, a persons agreement to or awareness of it is not to be taken as indicating his voluntary acceptance of any risk.

1)

Puts an absolute ban on persons right to exclude his liability for death orr personal injury resulting from negligence, by making contract or giving notice to that effect. It means that even if the defendant has procured plaintiffs consent to suffer death or personal injury resulting from plaintiffs negligence, plaintiffs liability is not negatived thereby.
Deals with an injury where the damage caused to plaintiff is other than death and injury. In such a case exclusion of liability by a contract term or notice is possible only if the term of notice satisfies the requirement of reasonableness. Further provides that even in those cases where the defendant could exclude or restrict his liability by a contract term or notice, the plaintiffs agreement or awareness about such agreement or notice, is not of itself to be taken as indicating his voluntary acceptance of any risk. It means that not merely an agreement or notice may be enough to restrict the defendants liability, something more, for instance further evidence about the genuineness of the plaintiffs consent, and voluntary assumptions of the risks must also be proved.

2)

3)

 Volenti

non fit injuria is a complete defence whereas in the case of contributory negligence, the defendants liability is based on the proportion of his fault in the matter In the defence of contributory negligence, both the plaintiff and defendant are negligent.in volenti fit injuria,the plaintiff may be volens but at the same time excercising due care for his own safety.