In Morris v. Murray the defence of volens was applied. The plaintiff accompanied the defendant on a flight in the defendant’s light aircraft after an afternoon’s drinking in which the defendant had consumed the equivalent of more than half a bottle of whisky and the plaintiff had full knowledge of the fact.
Knowledge (even if it does not establish consent under Smith v. Baker) may nevertheless defeat the plaintiff’s action in two ways: (1) It may negative the existence of negligence in the defendant.
In certain cases he who causes a danger fulfils his legal duty of care by merely giving notice of it, for example, where A, the owner of a defective electric table-fan, lends it to B, he is only bound to inform the latter of the nature of that defect and he has no greater responsibility than merely giving notice of it to the borrower.
If a master had given warning to his servant not to feed an untamed bull and nevertheless the servant tries to feed the bull and receives hurt from the bull, will the master be held liable? No.
It will be an instance where even scienti non fit injuria precludes a person from getting damages. (2) It may established contributory negligence on the plaintiff.
If the plaintiff’s act in knowingly running the risk was unreasonable and foolhardy, having regard to the magnitude of the danger and the urgency of the occasion it amounts to contributory negligence. Yet one is entitled to face reasonable risks (even knowingly) rather than forfeit one’s freedom.
Contributory negligence may be regarded as involving a departure from the normal duty of care on the basis of the implied consent of the participants, or as illustrating the proposition that in determining what amounts to reasonable care all the circumstances of the case must be taken into account.
The maxim volenti non fit injuria in its strict sense of express or implied assent to run the risk has no affinity with the doctrine of contributory negligence. In its wider sense, however, it is also used to include the operation of mere knowledge in rejecting an action as mentioned before in the example of the defective electric table-fan. The maxim may be said to cover three distinct classes of cases, viz:
1. Those in which the plaintiff has agreed either expressly or impliedly to suffer harm or to run the risk of it.
2. Those in which, because the plaintiff knows of the danger, the defendant has done no wrong in causing it.
3. Those in which, because the plaintiff knows of the danger, his act in voluntarily exposing himself to it is an act of contributory negligence.
But still there is a marked difference between the defence of contributory negligence and volenti non fit injria.
In contributory negligence, the substantial cause of the accident is the plaintiff’s negligence whereas in volenti non fit injuria it is the plaintiff’s express or implied assent to the injuria that is relied on by the defendant as a defence.
The defence of volenti non fit injuria is inapplicable in rescue cases. Rescue cases are typified by A’s death or injury in rescuing or attempting to rescue B from an emergency or danger to B’s life or limb created by the negligence of C.
The principle was discussed in the English decision of Cutler v. United Dairies Ltd. In this case the defendant negligently used a restive horse to draw a van. The horse bolted and went into a field adjoining the plaintiff’s garden when it was caught by the driver who tried to pacify it.
As it continued to be restive, the driver shouted for help and the plaintiff thereupon attempted to hold the horse when it suddenly reared and threw him down causing serious bodily injury. The Court of Appeal held that the plaintiff could not recover damages and volenti non fit injuria was held applicable in the case as a good defence.
But a man cannot be deemed to have given real consent if he acts under the compulsion of a legal or even a moral duty. This was exemplified in the subsequent decision of Haynes v. Harwood.
In this case the defendant’s servant had left his van and horses unattended in a crowed street. The horses bolted when a boy threw a stone at them.
The plaintiff was a police constable on duty inside a police station; he saw that if nothing was done a woman and children were in grave danger and at great personal risk managed to stop both the horses; but in so doing suffered serious bodily injuries.
He was held entitled to recover damages and the defence of volenti non fit injuria was rejected by the court.
The distinction between Haynes v. Harwood (supra) and Cutler v. United Dairies Ltd. (supra) is that in the former, the horse was actually bolting when the plaintiff attempted to stop it, while in the latter the horse had been caught by the driver and the action of the plaintiff in coming to his assistance was the act of a person who intervened after the danger caused by the defendant’s negligence was over.
The accident in one case took place in a crowed street where a woman and children were actually in danger. In the other case the restive horse was in a field where nobody was in danger.
The element of rescue is less obvious in Cutler case (supra). The decision in that case was one relating to facts on which it could not be said that the injured man was rescuing anybody from danger as in Haynes case (supra).
The application of the reasonable man’s test requires that the reasonable man must here be endowed with qualities of energy and courage and he is not be deprived of a remedy because he has in a marked degree a desire to save human life in peril.
And even if his duty to intervene were merely a moral one as in this case still the law does not think so meanly of mankind as to hold it otherwise than a natural and probable consequence of a helpless person being put in danger that some able-bodied person should expose himself to the danger to effect a rescue.