Although particular specific torts may have particular special defences such as truth and fair comment to defamation. still, there are certain general defences which are applicable to all torts. They are the following:
1. Volenti non fit injuria – Harm suffered with the plaintiff’s consent.
2. Inevitable accident.
3. Mistake.
4. Private defence.
5. Necessity.
6. Statutory authority
Volenti non fit injuria
The literal meaning of the maxim is “that to which a man consents, cannot be complained of as an injury”. Really it means that no act is actionable as a tort at the suit of any person who has expressly or impliedly assented to it.
A person who makes an agreement with another, either expressly or by implication, to run the risk of injury caused by that other, will not be permitted to complain and claim damages for any of the risks that he had agreed to undergo.
The maxim has a twofold application. In the first place it applies to intentional acts which would otherwise be tortious, and refers to consent to an entry on land or goods which would otherwise be trespass.
It also includes consent to physical harm which would otherwise be assault, as in the case of a boxing match or surgical operation or consent to the publication of a defamatory statement which would otherwise be actionable.
Secondly, it applies to consent to run the risk of accidental harm which would otherwise be actionable. Thus, spectators at sports meetings take upon themselves the risk of the perils thereat, whether reasonably to be expected or improbable.
In that case a spectator who had paid for admission to the defendant’s racing track of automobiles was injured. The spectator sued the defendants who were held not liable.
Process must not be unlawful
The maxim is inapplicable where the act is contrary to public policy. When persons with little regard to lives undertake operations which are too obviously dangerous and sustain grievous injuries, they will not be permitted to raise the plea of volenti non fit injuria.
Nor will any party be entitled to recover damages in such cases. In such cases where the conduct contemplated is likely to be a menace to public morality or safety, any contract to pursue such conduct is unlawful and nothing is recoverable by the injured partly. Ex turpi causa non or oritur actio- an action does not arise from a base cause.
A plea of volenti arises from an inference of consent drawn from the circumstances rather than any agreement or notice, as was settled in Pitts v. Hunt that “it is no longer open to the driver of a motor vehicle to say that the fact of his passenger travelling in a vehicle in circumstance in which for one reason or another it could be said that he had willingly accepted a risk of negligence on the driver’s part, relieves him of liability for such negligence”.
Claims are likely to be rejected if they offend public convenience. Claims which can be successfully pleaded without bringing in the illegality are capable of being sustained.
A patient cannot reasonably expect all the information at the doctor’s disposal and therapeutic discretion must be exercised by the doctor in responding to even direct questions.
Knowledge does not necessarily imply consent
Knowledge does not necessarily imply assent. The maxim is volenti non fit injuria, it is not scienti non fit injuria.
Mere knowledge of the impending wrongful act or the existence of a wrongfully caused danger does not in itself amount to consent even though no attempt is made by the plaintiff to prevent or avoid that act or danger.
Knowledge of a particular danger may be evidence of an agreement to undergo certain risk but it is nothing more.
Knowledge of the risk is not the same as acceptance of it. A man is not bound at his peril to fly from a risk which is another man’s duty to protect him merely because the risk is known.
In Bowater v. Rowley Registered Corpn., the plaintiff, a carter employed to collect road sweepings by a municipal corporation, was ordered by his foreman to take out a horse, which to the knowledge of both of them had run away on at least two previous occasions when driven by a fellow employee.
The carter protested but the foreman said that it was an order of the borough surveyor. Some weeks later, the horse ran away and the plaintiff was thrown from his cart and suffered bodily injuries.
In an action against the corporation by the plaintiff, alleging that they had failed in their duty to provide him with a horse which was safe and suitable for the work which he had to perform, it was held that the corporation was negligent and that the plea of volenti non fit injuria was inapplicable.
In South Indian Industrials v. Alamelu Ammal, the defence of consent was held not available to an employer who adopted a dangerous method of breaking up cast iron by dropping a heavyweight from a great height on pieces of iron with the result that a piece of iron hit and killed a workman at a considerable distance.
