1|Page

UNIVERSITY OF PETROLEUM & ENERGY STUDIES

COLLEGE OF LEGAL STUDIES

BBA, LL.B. (Hons.) Banking Finance & Insurance & International Trade
&Investment Law 2017

SEMESTER –1st

ACADEMIC YEAR: 2017-2018 SESSION: JULY- DECEMBER

PROJECT

FOR

LAW OF TORTS

Under the supervision of Mrs. CHARU SRIVASTAVA

NAME: BHANU PRATAP SINGH PUNDIR

SAP ID: 500059974

ROLL NO. : R155217011

2|Page

CHAPTERIZATION

I.

INTRODUCTION

II.

DEFENCE UNDER TORT LAW

III.

DEFENCE UNDER CRIMINAL LAW

IV.

LEADING CASES

V.

CONCLUSION

VI.

BIBILOGRAPHY
3|Page

I. INTRODUCTION:-

The law of torts administered in India is a part of the common law which was firstly
introduced in 18th century after establishment of Mayor’s Court in three presidency town
of Calcutta, Madras, Bombay. These courts administered justice according to common
law and statue of England. Being a part of common law the decisions under torts was
based on previous judgments on various cases or according to ‘justice, equity, & good
conscience’ i.e. based on rules of English law found applicable in Indian Society &
circumstances.1
When a person consents to the infliction of some harm upon himself, he has no remedy
for that in tort. In case, the plaintiff voluntarily agrees to suffer some harm, he is not
allowed to complain for that and his consent serves as a good defence against him. No
man can enforce right which he has voluntarily waived or abandoned. Consent to suffer
the harm may be express or implied.2
The maxim volenti non fit injuria means where the sufferer is willing no injury is done. A
man cannot complain of harm to the chances of which he has exposed himself with
knowledge and of his free will. The maxim volenti non fit injuria is founded on good
sense and justice. One who has invited or assented to an act being done towards him
cannot, when he suffers from it, complain of it as a wrong. The maxim presupposes a
tortuous act by the defendant. The maxim applies, in the first place, to intentional acts
which would otherwise be tortuous. A trespasser, having knowledge that there are spring
guns in a wood, although he may be ignorant of the particular spots where they are
placed, cannot maintain an action for an injury received in consequence of his
accidentally treading on the latent wire communicating with the gun, and thereby letting
it off, for he voluntarily exposes himself to the mischief which has happened. But a
person, who climbs over a wall in pursuit of a stray fowl and is shot by a spring gun, set
without notice, can recover damages.3

1
See: https://blog.ipleaders.in. last modified 29th October , 2017.
2
Dr. R.K. Bhangia, The Law of Torts, pp 35,ed. 22, par 1, Allahabad Law Agency, 2010.
3
RATANLAL & DHIRAJLAL, THE LAW OF TORTS, LEXIS NEXIS, ED.27, PP.93-94
4|Page

The perfectly sound principle underlying this maxim is daily illustrated in common life. It
protects surgeon who amputates a limb; the football player, boxer, or fencer, so long as
they play fairly according to the rules of the game; and it prevents a person who chooses
to pay a debt barred by the statute of limitations, or not enforceable by reason of infancy,
from getting his money back. The application of the maxim is not dependent upon any
valid contract but upon the competence of the decision making capacity of the person at
the time the consent was given. So a decision making capacity of the person at the time
the consent was given. So a minor who is capable of making a reasonable assessment of
the advantages and disadvantages of a treatment proposed by a physician or a surgeon
can give a valid consent. In Gillick v. west Norfolk and wisbeck area health authority, the
house of lords held that a girl under 16 did not, merely by reason of her age, lack legal
capacity to consent to contraceptive advice and treatment by a doctor. It was also held
that having regard to the reality that a child became increasingly independent as it grew
older and parental authority dwindled correspondingly, the law did not recognize any rule
of absolute parental authority until a fixed age; parental rights were recognized by the law
only as long as they were needed for the protection of the child and such rights yielded to
the child’s right to make his decision when he reached a sufficient understanding and
intelligence to be capable of making up his own mind.4
II. DEFENCE UNDER TORT LAW:-

To make a very simple translation of the Roman Law maxim Volenti Non Fit Injuria, it means
that things suffered voluntarily are not fit/deemed to be an injury; or an injury cannot arise out of
a voluntary act (of the aggrieved party).
This defence absolves the tort-feasor from any liability, if it is proved that the tort arose out of
an informed and wilful act of the injured party. So, consent of the aggrieved party forms the
essence of this defence.
To start with a classic example, if you go to a watch an IPL T20 match at a stadium, you know
that the bowlers will be sent to the cleaners (find-the-meaning-if-you-don’t-know-it-already
alert) every now and then; and, you could well end up on the receiving end of one of those huge
sixes.
But, then, you run that risk knowingly, and are sensible enough to understand the possible
effects of being on the end of such a rocket of a sixer! If you are guessing that you alone are
responsible for what might happen to you, then you are right. The batsman hit the ball; and, let’s
say for argument’s sake that the stadium operators did not put up ‘adequate protection’ such as

4
Ibid
5|Page

fencing all over the stands (which is a bit unreasonable) – but, you were aware of all that, and
still chose to run that risk. So, like all choices that you make in life, this one is on you too!
However, if, let’s say, you are driving your car from your office to your home and are some 200
feet from the stadium, and at that very moment Chris Gayle, playing for Royal Challengers
Bangalore, hits one large, inhuman six which goes past the roof of the stadium and smashes
straight through your windshield and into your right hand… That is not your fault.
The fact the six is termed ‘inhuman’ impliedly means that the chances of that happening in our
human world are rare – were it the case that raining sixes was a common sight outside the
bounds of the stadium, the outcome would be different.
That would make the harm foreseeable. In the instant case, the harm was unforeseeable, so you
could not be said to knowingly suffer the harm.
On that line of thinking, if the roof of the stadium were to collapse, which is wholly unrelated to
the game of cricket, and also unforeseeable, then the organizers cannot claim the defence
of volenti – because, you cannot consent to what you are not aware of/ what cannot be expected
to happen under normal circumstances.5
Volenti non fit injuria can thus be claimed when there is:
i) Knowledge of the risk, or the risk being such that there is a reasonable expectation that it
might occur, and thus, the plaintiff is also expected to be aware of it; and
ii) Consent/acceptance of the risk – either implied or expressed.
a. Consent of the injured party will depend on the obligations of the parties towards each other; a
police-person is supposed to arrest criminal, and a criminal cannot claim volenti if he shoots a
police-person, saying that the latter approached him to make an arrest, despite knowing that he
was armed and would shoot.
b. In rescue cases, persons such as a police officer (legal) and a parent (social/moral/legal) have
an obligation and volenti cannot be claimed against them. Thus, persons acting under an
obligation cannot be said to accept the injurycaused to them, despite having knowledge of the
same.6

III. DEFENCE UNDER CRIMINAL LAW:-

The legal maxim volenti non fit injuria, to the one who consents, no wrong is done, has a
long history. Various similar formulation exist in Roman law, and the idea arguably goes
back to Aristotle. In its present form it was first used in the fourteenth century in relation
to dispute over propert, but it has since then found its way into both tort and criminal law.
In nearly all tort actions its successful invocation constitutes a complete defence, but in a
no. of criminal actions this is not the case. Of course some criminal offences are so

5
See: https://www.lawctopus.com/clatapult/general-defences-in-tort-volenti-non-fit-injuria. Last modified October
27, 2015
6
Ibid
6|Page

defined that proof of consent would show that no offence had been committed. Rape and
larceny are well-know instances. But in other cases consent may be no defence at all,
though it might be given limited relevance at a later stage of the proceedings in relation to
the severity of the penalties exacted. Limiting cases here are unlawful carnal knowledge
(statutory rape) and the tattooing of minors, where what would in other circumstances be
seen as consent is not given legal recognition. Nevertheless it might be claimed that the
theoretical pull of the volenti non fit injuria maxim is manifested in the official rationale
for these offences , viz., that prior to “the age of consent”, a person cannot be considered
competent to consent to the unlawful behavior.

But as well as the preceding clear limiting cases, where consent is either fully effective or
tatally ineffective as a “defince”, there is a range of acts, particularly involving bodily
intrusions.7

IV. LEADIN CASE:-

1. HALLWAY V. BROOKLANDS AUTO RACING CLUB:- In this case the

plaintiff was spectator at a motor racing car race held in Brookland on a track
owned by the company of defendant. During the race, there was a collision
between two cars, one of them was thrown among the spectators, thereby injuring
the plaintiff. It was held that there was an implied consent by the plaintiff, the
danger in this sport was foreseeable, therefore, the defendant was not liable.

2. PADMAVATI V. DUGGANAIKA:- While the driver was taking the jeep for
filling the tank, two strangers took lift in the jeep. Suddenly one of the bolts fixing
the right front wheel to the axle gave way toppling the jeep. The two strangers
were thrown out and sustained injuries, and one of them died as a consequence of
the same.
It was held that neither the driver nor his master could be made liable, firstly,
because it was a case of sheer accident and, secondly, the strangers had

7
See: https://www.jstor.org/stable/23679583?seq=1#page_scan_tab_contents. Vol. 65. No. 3. 1979, pp.329-346
7|Page

voluntarily got into the jeep and as such, the principle of volenti non fit injuria
was applicable to this case.
3. WOOLDRIGE V. DUGGANAIKA:- In this case the plaintiff was a photographer
who was taking photographs at a horse show standing at the boundary of the
arena. One of the horses belonging to the defendant, rounded the bend too fast. As
the horse galloped furiously, the plaintiff was frightened and he fell into the
horses course and there he was seriously injured by the galloping horse. The horse
in question won the race. It was held that since the defendants had taken due care,
they were not liable. The duty of the defendants was the duty of care rather the
duty of skill. The spectator in such a game or competition takes the risk of such
damage even though there may have been error of judgment or lapse of skill.
Diplock L.J. explained the position as follows : “the duty which he (the
defendant) owes is a duty of care, not a duty of skill. Save where a consensual
relationship exists between a plaintiff and a defendant, by which the defendant
impliedly warrants his skill, a man owes no duty to his neighbor to exercise any
special skill beyond that which an ordinary reasonable man would acquire before
indulging in the activity in which he is engaged at the relevant time. It may well
be that a participant in a game or competition would be guilty of negligence to a
spectator if he took part in it when he knew or ought to have known that his lack
of skill was such that even if he exerted it to the utmost, he was likely to cause
injury to a spectator watching him. No question of this arises in the present case.
A person attending a game or competition takes the risk of any damage caused to
him by any act of the participant done in the course of and for the purpose of the
game or competition notwithstanding that such act may involve an error of
judgment or a lapse of skill, unless the participant’s conduct is such as to evince a
reckless disregard of the spectator’s safety.”

4. THOMAS V. QUARTERMAINE:- In this case the defence of volenti non fit

injuria was successfully pleaded. Here the plaintiff is an employ in the
defendant’s brewery, was trying to remove a lid from a boiling vat. The lid was
stuck and by the plaintiff’s extra pull to it, it came off suddenly and the plaintiff
8|Page

fell back into the cooling vat which contained scalding liquid. The plaintiff was
severely injured. The majority of the court of appeal held that the defendat was
not liable because the danger was visible and the plaintiff appreciated and
voluntarily encountered the same.

5. ILLOT V. WILKES:- In this case, a trespasser, who knew about the presence of
spring guns on a land, could not recover damages when he was shot by a spring
gun. Similarly, damage caused to a trespasser by broken glass or spikes on a wall,
or a fierce dog, is not actionable. If I go and watch a fire-workmaker for my own
amusement, and the shop is blown up, it seems I shall have no cause of action
even if he was handling his material unskillfully.

6. LAKSHMI RAJAN V. MALAR HOSPITAL LTD.:- In this case the complainant

was a married woman whose age was 40 years, noticed development of a painful
lump in her breast. The lump had no effect on her uterus, but during surgery, her
uterus was removed without any justification.
It was held that the opposite party, i.e., the hospital, was liable for deficiency in
service. It was also held that the patient’s consent for the operation did not imply
her consent to the removal of uterus. Therefore, volenti non fit injuria is not
applicable.

7. SMITH V. BAKER:- In this case the plaintiff was a workman employed by the
defendants on working a drill for the purpose of cutting a rock. By the help of a
crane, stones were being conveyed by one side to the other, and each time when
the stones were conveyed, the crane passed from over the plaintiff’s head. While
he was busy in his work, a stone fell from the crane and injured him. The
employers were negligent in not warning him at the moment of a recurring
danger, although the plaintiff was generally aware of the risk.
It was held by the house of lords that as there was mere knowledge of risk without
the assumption of it, the maxim volenti non fit injuria did not apply, and the
defendents were liable.
9|Page

Lord herschell said: “Where a person undertakes to do work which is intrinsically

dangerous, notwithstanding that reasonable care has been taken to render it as
little dangerous as possible, he no doubt voluntarily subjects himself to the risks
inevitably accompanying it, and cannot if he suffers, be permitted to complain
that a wrong has been done to him, even though the cause from which he suffered
might give to others a right of action, but where a risk to the employed, which
may or may not result in injury, has been created or enhanced by the negligence
of the employer, does the mere continuance in service, with knowledge.

8. BOWATER V. ROWLEY REGIS CORPORATION:- In this case the plaintiff

was a cart driver and was asked by the defendant’s foreman to drive a horse
which to the knowledge of both, was liable to bolt. The plaintiff protested but
ultimately took out the horse in obedience to the order. The horse bolted and the
plaintiff was injured thereby.
It was held that the maxim volenti non fit injuria did not apply and the plaintiff
was entitled to recover. Goddard L.J., said “that maxim volenti non fit injuria is
one which in the case of master and servant is to be applied with extreme caution.
Indeed, I would say that it can hardly ever be applicable where the act to which
the servant is said to be volens arises out of his ordinary duty, unless the work for
which he is engaged is one in which danger is necessarily involved. A man,
however, whose occupation is not one of a nature inherently dangerous but who is
asked or required to undertake a risky operation is in a different position. It is not
enough to show that whether under protest or not, he obeyed an order or complied
with bound to obey or comply with. It must be shown that he agreed that what
risk there was should lie on him.”

9. DANN V. HAMILTON:- In this case a lady knowing that the driver of the car
was drunk chose to travel in it instead of an omnibus. Due to the driver’s
negligent driving, an accident was caused resulting in the death of the driver
himself and injuries to the lady passenger. In an action by the lady passenger for
such injuries against the representatives of the driver, the defence of volenti non
10 | P a g e

fit injuria was pleaded but the same was rejected and the lady was held entitled to
claim compensation. The reason why the defence of volenti non fit injuria was
considered to be not applicable was that the degree of intoxication of the driver
was not to such an extent that taking a lift could be deemed to be consenting to an
obvious danger. In the words of Asquith J. : “There may be cases in which the
drunkenness of the driver at the material time is so extreme and so glaring that to
accept a life from him is so like engaging in an intrinsically and obviously
dangerous occupation, intermeddling with an unexploded bomb or walking on the
edge of an unfenced cliff. It is not necessary to decide whether in such a case the
maxim “volenti non fit injuria” would apply, for in the present case, I find as a
fact that the driver’s degree of intoxication fell short of this degree. I, therefore,
conclude that the defence fails and the claim succeeds.”

V. CONCLUSION:- Volenti Non Fit Injuria means ‘voluntary taking of a risk'. It's when
a person chooses to be in the situation that causes the injury. For example, suppose you
are a spectator at a cricket match , the batsman hits a six, and the ball lands on your head,
then you cannot claim for compensation either from the stadium authorities or the
batsman because when you took a seat in the stadium, you accepted the risks while sitting
in the stadium. Therefore if the defendant can prove that the plaintiff voluntarily put
himself in that situation, he can escape liability. The most important thing to remember is
that the action must be voluntary i.e. with the informed consent of the relevant person.
There must not be any cheating or use of any type of force and so the person must put
himself in the situation by his own choice. There are two things which should be
established in order to use this defense. (a) That the plaintiff knew or could have expected
the risks involved in such a situation. (b) That the person agreed by a statement or
conduct, to suffer the consequence of the risk without force or compulsion or threat.
By this I want to say that it is not enough to defend by saying that the plaintiff knew the
risk; it is also necessary to show that the plaintiff voluntarily agreed to suffer the harm
which might be possible in the risky situation. But in case of a master servant relation
there might be some sought of pressure on the servant. I would like to give an example, a
master orders his servant to go and work in a mine, if one shaft is not in a proper
11 | P a g e

condition, this cannot be assumed that the servant and so in case if there is an accident
than the master cannot claim that the servant knew and went voluntarily as there is
pressure from the master.

VI. BIBILOGRAPHY:-

1. Books:-
a) R. K. Bhangia
b) Ramaswamy Iyer
c) Ratanlal & Dhirajlal
d) Dr. J.N. Panday
e) Winfield & Jolowictz
2. Sites :-
a) www.e-lawresources.co.uk
b) www.lawctopus.com
c) www.lawteacher.net
d) www.manupatra.com
e) www.jstor.org