INTRODUCTION

The word tort is derived from the Latin term tortum which means twisted. Thus, a tort
basically refers to an act which is wrong or twisted. Generally speaking, it is an injury that
one person or entity inflicts(accidentally or intentionally) on another.1,2,3 The origins of tort
law can be found in old English procedural law. To file an action in a court, one needed a
writ, which could only be obtained from the head of the judiciary, the Lord Chancellor. The
law of torts is strongly influenced by its history: the focus is not primarily on rules but on the
right cause of action4. Tort law is mainly based on the legal maxim, ubi jus ibi remedium,
which means, where a right exists, there lies a remedy. The primary function of the Law of
Torts is to provide remedies to claimants who have suffered harm, loss, or an infringement of
rights. The harm includes physical injury to persons or property, damage to persons
reputations or financial interests, and interference with persons use and enjoyment of their
land. When this legal right of a person is violated, the injured party can ask for remedy in
the form of damages or compensation. Now, compensation can be of a few typescompensatory damages and punitive damages. The former aims at compensating the
injured(called plaintiff in tort law) and the latter aims at punishing the wrong-doer(called
the defendant in tort law). Some tort cases seeks something called an injunctive relief. An
injunctive relief refers to a court order that requires the defendant to do something or prevents
him from doing something. Tortious liability arises from the breach of a duty primarily fixed
by law; this duty is towards persons generally and its breach is redressable by an action for
unliqidated damages.5 This brings us to distinguish between liquidated and unliquidated
damages. The liquidated damages refer to the damages the value of which are fixed and had
been decided beforehand. Whereas, unliquidated damages refer to those damages the value of
which are not fixed and they are not predecided ones.In India, tort law has developed mainly
as a part of the common law system that influenced India after India was colonized by the
British. However, tort law has not developed much India. The law of torts administered in
India is the English common law of torts so far as it is available to the Indian society and
circumstances.6
A suit under the law of torts is generally a private suit as opposed to criminal prosecutions.
In common law countries the law of torts has developed from a large body of formerly
unrelated doctrines such as trespass, nuisance, defamation, negligence, etc. 7 But, the law of
torts also provides certain defences to the defendant by using which the defendant can

escape liability. This is done mainly to ensure the just application of the principles of tort law.
The word defence ...is sometimes used to refer to any argument that persuades the court to
find that the defendant is not liable. Name the defences come to vnfi.also put law of tort and
torts.

CHAPTER 1
Meaning of Volenti Non Fit Injuria
The legal maxim Volenti Non Fit Injuria is a Latin term. In simple language it means that one
cannot complain against an injury suffered if he has voluntarily placed himself in such a
position where such injury might result. It is used as a complete defence in tort law. Volenti
non fit injuria refers to the voluntary assumption of risk by a person. ...assumption of risk
embodies the principle that one who voluntarily assumed the risk of an injury from a known
danger cannot recover in an action for negligence or when an injury is incurred.8 The
essential elements of Volenti non fit injuria include the aggrieved party must have knowledge
of the risks in full detail. Moreover, the injured party must also have freely consented to the
harm suffered.However, as we go along, we will find certain intricacies in the concept of
actually consenting to the risk and its consequent harm. Volenti non fit injuria, in a way
attempts to protect the defendant from being unnecessarily harassed because of the plaintiffs
act of voluntarily placing himself in a position so as to be in proximity to the injury suffered.
The principle expressed by the maxim is briefly this: that no man has a right to complain of
an injury to the infliction of which he has himself consented.9 Going back to the two
components of volenti non fit injuria, it must be mentioned that knowledge of the risks
include the plaintiffs understanding, as a reasonable man would, of the nature of the risk of
the act and the extent of the consequences that can follow. Here comes the question of
assumption of the risk involved. Assumption of risk traditionally was an absolute defence
88books.google.co.inPhillipine Law on torts and Damages, by J Cezar S Sangco.
9
www.heinonline.org
Volenti Non Fit Injuria- A Judicial Review
10
http://heinonline.org/HOL/Page?
handle=hein.journals/touro7&div=11&g_sent=1&collection=journals
Assumption of Risk in New York under CPLR 1411

that completely barred a plaintiffs claim. The rationale for the defence was expressed in the
ancient maxim volenti non fit injuria- a person who consents to the doing of an act cannot
maintain an action in respect of the damage which results from that act.10 Moreover, the
consent should be free, consent that is vitiated by fraud, coercion, misrepresentation and
undue influence is considered to be invalid. This is to say that the ...risk must be freely taken
for the defence to succeed. There will be no defence where the plaintiff had no choice but to
accept the risk. 11 It is clear that the defence at least includes the case where there is an
agreement, not necessarily constituting a contract, between the plaintiff and the defendant
under which the plaintiff foregoes, in advance, a claim for negligence which might otherwise
accrue to him, that is, the plaintiff agrees that conduct of the defendant which would
otherwise be actionable will not be so.12

911books.google.co.in Unlocking Torts, by Chris Turner

12
http://www.jstor.org/stable/4506702?seq=1
The Cambridge Law Journal, Volenti Non Fit Injuria,by A.J.E Jaffey