Limitations/ Exceptions to the application of volenti non fit injuria

(i) Illegal consent- No consent can legalize an unlawful act e.g. fighting with naked fists or duel with sharp swords. No person can licence another to commit a crime (R v Donovan).

(ii) Breach of a statutory duty- Thus, it is no answer to a claim made by a workman against his employer of a duty imposed on him by statute.

(iii) NegligenceWhen the plaintiff consents to take some risk the presumption is that the defendant will not be negligent. Thus, where a player negligently or deliberately hit another with a stick or where an operation is unsuccessful because of surgeon’s negligence, the defendant cannot plead volenti non fit injuria because the plaintiff never consented to an injury in that manner. The act causing the harm must not go beyond the limit of what has been consented.

In Bradon v Osborne (“skylight case”), while plaintiffs, husband and wife, were in a shop, a skylight in the roof was broken, owing to negligence of the contractors. The glass fell and injured the husband. His wife while trying to pull him strained her leg. Held that both the plaintiffs were entitled to damages.

In T.C. Balkrishnan Menon v T.R Subramania, during the Pooram celebrations, which were attended by lakhs of people, the explosion caused by igniting explosive-powder filled coconut shells seriously injured the plaintiff. It was established that the injury was caused by the negligence of the defendants (servants of the contractors) who did not properly check the explosive. The defendants were held liable.

(iv) Rescue Cases– ‘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 from an imminent danger created by the wrongful act of the defendant, he cannot be met with the defence of volenti non fit injuria.

In Wagner v. International Railway, (1921) 232 NY 176, a passenger fell down from the railway car due to the negligence of the railway company. When the train stopped, his companion who got down and went to search for his friend who fell down from the bridge because of darkness and consequently received injuries. The railway company was held liable Cardozo J. observed “Danger invites rescue. The cry of distress is the summons to relief. the law does not ignore those reactions in tracing conduct to its consequences. It recognises them as normal. the wrong that imperils life is a wrong to the Imperiled victim; it is a wrong also to the rescuer. the risk of rescue if only it is not wanton, is born of the occasion, the emergency begets the man. the wrongdoer may not have foreseen the coming of a deliverer. he is as accountable as if he had.”

The position of law has been summed up by Prof. Goodhart in the following words: “The doctrine of assumption of risk does not apply where the plaintiff has, under an exigency caused by defendant’s wrongful misconduct, consciously and deliberately faced a risk, even of death, to rescue another from an imminent danger of personal injury or death, whether the person in danger is one to whom he owes a duty of protection or is a mere stranger to whom he owes no  such special duty.”

The above rule was adopted by Court of Appeal in England with some qualifications is Haynes v Harwood, (1935) 1 KB 146. In this case, defendant’s servant left a two-horse van unattended in street. Suddenly the horses bolted and started to run in the street causing grave danger to women and children present. A police constable, who was on duty inside a nearby police station, on seeing the same, managed to stop the horses, but in doing so was seriously injured. The defendant was consequently held liable. Greer L.J. accepted the American rule, as stated by Prof. Goodhart, with a qualification. It was held that the rescuer’s act needs not be instinctive in order to be reasonable, for the man who deliberately encounters peril after reflection may often be acting more reasonably than one who acts upon impulse. In other words, the rescuer should act reasonably and not emotionally.

The above principle will not apply to a case where there is no need to take any risk. In such case the person suffering harm cannot recover. In Cutler v. United Dairies (London) Ltd., (1933) 2 LB 297, a horse belonging to the defendants and attached with a van was seen by the plaintiff running past his house without a driver. It entered a field adjoining the plaintiff’s garden. The plaintiff on hearing the driver’s calls for help, went to the field and was seriously injured while attempting to hold the horse. The court dismissing the claim of the plaintiff held that as there was no risk to anybody the plaintiff cannot recover.

The rule in Haynes v. Harwood, (1935) 1 KB 146 applies in cases of rescue of property. In Hyett V. Great Western Railway Co., (1948) 1 KB 345, the plaintiff was injured while saving defendant’s property from fire which occurred due to the negligence of the defendant. The plaintiff’s conduct was considered to be reasonable and on the basis of the doctrine of Haynes v. Harwood, the defendants were held liable. .

According to Prof. Goodhart, “the only difference between the life and property cases is that a rescuer would not be justified in exposing himself to as great danger in saving property as he would in saving human life. Winfield agrees with this principle, but he said that this principle is not workable in particular cases where the rescuer might reasonably encounter just as much danger in trying to preserve property as to preserve life, e.g., where documents of great national importance, and off which no copy exists, are in peril of being destroyed by a fire caused by tortious conduct of some person other than the rescuer.

In Russell versus MeCabe, 1962, it was held that the need for intervention must necessarily be acute and the degree of risk in intervening must be weighed against the nature and the value of property sought to be protected.

(v) Unfair Contract Terms Act 1977, England

It limits the right of a person to restrict or exclude his liability resulting from his negligence by a contract term or by notice. it puts an absolute ban on a person’s right to exclude his liability for death or personal injury resulting from negligence, by making a contract or giving notice to that effect. In cases other than death and personal injury exclusion of liability by a term of Contract or, notice is possible only if it satisfies the criteria of reasonableness.