Volenti Non Fit Injuria

4. It is no defence to an unlawful act. Consent cannot make lawful what the law forbids.

5. It does not defeat a statutory duty. Where a statute imposes a duty for the protection of a class of persons, a member of that class cannot contract out of it. Sections 146 and 147 of the Motor Vehicles Act 1988 make third-party insurance compulsory precisely so that the protection cannot be given away, and chapter [Compulsory Third-Party Insurance] works that out.

6. Negligence beyond the risk consented to. A patient who consents to an operation does not consent to it being performed carelessly, and Klaus Mittelbachert v. East India Hotels Ltd, AIR 1997 Del 201, makes the point in terms for a hotel guest.

The case that shows the last limit

Facts. Klaus Mittelbachert v. East India Hotels Ltd, AIR 1997 Del 201, decided on 3 January 1997. A German co-pilot staying as a guest at a five star hotel in New Delhi dived from the hotel's three metre spring board into its swimming pool, struck his head on the bottom because the pool was too shallow for that board, and was paralysed. He suffered for thirteen years and died before the suit was decided.

Held. A five star hotel charging a high price owes a correspondingly high degree of care as to the safety of its structure and services. The pool did not meet even the minimum, let alone the preferred, standards of safety, and the spring board should have been removed by 1970 when the standards were revised. The Court held in terms that a general notice that guests use the facilities at their own risk cannot soften the duty, since one who extends an invitation cannot then say that the invitee accepted the risk. The suit was decreed for Rs. 50 lakhs with interest.

Why it matters here. It is the answer to the argument that a notice or a disclaimer amounts to consent. A person who is invited to use a facility consents to its ordinary risks, not to a hidden defect the occupier knows about and does not fix.

A worked example

Girish attends a motor race. He buys a ticket which says on its back that spectators attend at their own risk. Three things happen.

One. A car spins off the track and injures him at a point where cars ordinarily leave the track in that kind of race. The defence succeeds. He knew the risk, and by taking his place he freely accepted the ordinary risks of watching motor racing.

Two. A car spins off because the organisers had not repaired a barrier they knew was broken. The defence is much weaker. He accepted the ordinary risks of the sport, not a risk created by the organisers' own negligence and hidden from him, which is the reasoning in Klaus Mittelbachert.

Three. Girish runs on to the track to pull an injured driver from a burning car and is himself burned. The defence fails altogether. A rescuer does not freely accept the risk; he responds to a danger the defendant created.

And the ticket? A notice can prove knowledge. It does not by itself prove free consent, and it cannot exclude a duty imposed by statute.

Distinctions that carry marks

What it does NOT mean

It does not mean a warning notice is a complete answer. Klaus Mittelbachert holds that a general disclaimer cannot soften the duty owed to an invitee.

It does not mean an employee consents to unsafe work. Continuing in employment under economic compulsion is not free consent.

It does not apply to a rescuer. The rescue rule is settled and it is the exception examiners ask about most.

It does not survive a statutory duty. Compulsory third-party insurance under sections 146 and 147 of the Motor Vehicles Act 1988 exists so that the protection cannot be waived.

Quick revision

1. Volenti non fit injuria: no injury is done to one who consents; it is a complete defence.
2. Two ingredients: knowledge of the nature and extent of the risk, and free and voluntary acceptance of it.
3. Scienti non fit injuria, sed volenti: knowledge is not consent.
4. Consent may be express or implied from conduct, and extends only to the ordinary risks of the activity.
5. Limits: consent must be free; no defence to an unlawful act; no defence against a rescuer; no defence to a statutory duty; no defence to negligence beyond the risk accepted.
6. Klaus Mittelbachert v. East India Hotels Ltd, AIR 1997 Del 201: a general notice that guests use facilities at their own risk does not soften the duty; Rs. 50 lakhs decreed.
7. Sections 146 and 147 of the Motor Vehicles Act 1988 make third-party cover compulsory so that it cannot be given away.
8. Distinguish from contributory negligence: a complete defence against a reduction in damages.

Test yourself

1. Explain volenti non fit injuria and its limitations. The maxim means that no injury is done to one who consents, so a plaintiff who with full knowledge of a risk freely and voluntarily agreed to run it cannot sue for the harm it causes. Two ingredients are required: knowledge of the nature and extent of the risk, and free acceptance of it, since scienti non fit injuria, sed volenti means that knowledge alone is not consent. The consent may be express or implied from conduct, but extends only to the risks ordinarily incidental to the activity. The limits are five. Consent obtained by fraud or given under compulsion, including the economic compulsion of employment, is not free. Consent is no answer to an act that is itself unlawful. A rescuer who is injured saving life or property endangered by the defendant does not consent. A statutory duty cannot be contracted out of, which is why sections 146 and 147 of the Motor Vehicles Act 1988 make third-party insurance compulsory. And consent does not cover negligence beyond the accepted risk, as Klaus Mittelbachert v. East India Hotels Ltd, AIR 1997 Del 201, holds.

2. Distinguish volenti non fit injuria from contributory negligence. Volenti non fit injuria asserts that the plaintiff agreed to run the risk, and if it is established it is a complete defence: the claim fails altogether. Contributory negligence asserts that the plaintiff failed to take reasonable care of his own safety, and where it is established the damages are reduced in proportion to his share of the fault rather than refused. The states of mind differ: volenti requires both knowledge and free consent, while contributory negligence requires neither, since a plaintiff who never adverted to the danger at all may still have been careless. Both must be pleaded and proved by the defendant.

3. Is a notice saying "enter at your own risk" a complete defence? No. Such a notice may prove that the plaintiff knew of a risk, but knowledge is not consent, and a notice cannot by itself establish that the plaintiff freely accepted a danger created by the defendant's own negligence. In Klaus Mittelbachert v. East India Hotels Ltd, AIR 1997 Del 201, the Delhi High Court held in terms that a general caution notice cannot soften the higher degree of care owed by a five star hotel to its guests, since one who extends an invitation cannot then say the invitee accepted the risk. A notice also cannot exclude a duty imposed by statute for the protection of a class of persons.

4. Does volenti non fit injuria apply to a rescuer? No. A person who is injured while trying to save life or property endangered by the defendant's negligence has not freely accepted the risk; he acts under the compulsion of a moral or legal duty created by the defendant's own wrongdoing. The rule applies to a professional rescuer such as a police officer or fireman and to an ordinary bystander alike. To hold otherwise would be to make the law discourage rescue, and it would allow a wrongdoer to profit from the fact that somebody tried to undo the danger he created.