VOLENTI NON FIT INJURIA

(Damage suffered by consent is not a cause of action)

The maxim, volenti non fit injuria, means that an act is not actionable at the instance of any
person who has expressly or impliedly consented to it. If an act is done with the consent of the
plaintiff, or the plaintiff has freely and voluntarily and with full knowledge of the nature and
extent of risk, agreed to an act, he cannot complain against that act.

This maxim, which is based on sound principles of justice and good sense, has a dual
application. It applies, in the first place to intentional acts which would otherwise be torts, for
instance, consent to a physical harm which would otherwise be an assault or consent to entry
on land which would otherwise be trespass. In the second place, it applies to consent to run the
risk of accidental harm which would otherwise be actionable as being due to the negligence of
the person who caused it. On this ground, a master is not liable for any injury suffered by his
servant who has undertaken the service knowing the risks incidental thereto. So also, spectators
at cricket or football or hockey matches or at motor races are presumed to undertake the risk
which may be reasonably expected at such events.

Although consent is sometimes manifested by words, it may often be implied by conduct or by

acts (which often speak louder than words). As observed by one American author, the girl who
makes no protest at a proposal to kiss her in the moonlight may have mental reservations that
it is without her consent, but the man who kisses her is nonetheless protected. Exceptions

The maxim has four important exceptions which may be summed up as under:

1. No consent can legalise an unlawful act like a duel with sharp swords, where such a duel is
prohibited by law.

2. The maxim has no validity against an action based on a breach of statutory duty.

3. The maxim does not apply where the plaintiff has, under an exigency caused by the defendant's
wrongful misconduct, consciously and deliberately faced a risk, even of death, whether the
person endangered is one to whom he owes a duty of protection (as a member of his family) or
is a mere stranger to whom he owes no such special duty.

4. The maxim also does not apply to cases of negligence. For instance, one could give consent to
the risk arising out of surgery, but no person can ever be deemed to give consent for a surgical
operation to be conducted negligently.
Illustrative cases where the maxim was applied

Hall v. Brooklands Auto-Racing Club: (1933) 1 K.B. 205

In this case, a racing car shot over the railing and killed two spectators. It was proved that this
was the first time that such an accident had taken place. It was held that there was no negligence
and that this type of danger to spectators was inherent in car racing. The defendants were,
therefore, held not liable.

Scalon v. Wedger: 156 Moss. 462

In this American case, the plaintiffs were injured by the explosion of a bomb during a display
of fireworks conducted by the defendant in a square falling on a public highway. It was proved
that the defendant, in firing a bomb, had in fact exercised reasonable care It was also shown
that the plaintiffs were present at the fireworks display as voluntary spectators and were of
ordinary intelligence. The court held in favour of the defendant, observing that a voluntary
spectator who is merely present for the purpose of witnessing the display must be held to
consent to it, and he suffers no legal wrong if he is accidently injured without any negligence
on anyone's part Illustrative cases where the maxim was not applied

Dann v. Hamilton: (1939) 1 K.B. 509

In this case, the plaintiff, knowing that the driver of a motorcar was under the influence of
alcohol, and that, consequently the chances of accident were thereby increased, chose to travel
by that car, although there was no compulsion of necessity or otherwise to do so. She was
injured in an accident caused by the drunkenness of the driver, in which the driver was killed.
In an action against the personal representative of the driver, the defendant raised the defence
of volenti non fit injuria. The court held that, except perhaps in extreme cases, the maxim does
not apply to the tort of negligence and that the plaintiff was entitled to recover damages.

Haynes v. Harwood: (1935) 1 K.B. 146

The defendant's horses, negligently left unattended in a crowded street, bolted when a boy
threw a stone at them. The plaintiff, a constable on duty inside a police station, seeing that
persons were in grave danger, ran out to stop the horses, and was severely injured in doing so.
It was held that he was entitled to recover compensation. The defendant was negligent in
keeping the carriage unattended in a public street. Therefore, the defence of voluntarily
incurring the risk would not be open to him. He could have foreseen the consequences.
RESPONDEAT SUPERIOR

(Let the superior be responsible)

Every person is, no doubt, responsible for his own acts, but in certain circumstances, he also
becomes liable for wrongs committed by other persons. This is called vicarious liability, that
is, liability incurred for, or instead of, another. Thus, a master is liable for the wrongful acts of
his servants and a principal for the wrongful acts of his agent. The underlying principle on
which such liability is fixed is Respondeat Superior: Let the superior be responsible/ Let the
superior answer.

If it were not so, a master would employ a servant to do a wrongful = act and a principal would
likewise employ an agent to do so, and in both cases, the master or the principal would get
away scot-free, and the wronged person would be left without a remedy.

The two main reasons underlying the application of this maxim are:

1. It would generally be very difficult to prove that the master had, in fact authorised the
servant to commit the act in question.
2. Secondly, the servant would normally not be financially sound to bear a large monetary
liability, and a rich master could employ a poor servant to commit wrongful acts. Thus,
to borrow a familiar example from English Law, if the master is himself driving a carriage
and causes injury to a passerby on account of his want of skill, he is, of course, liable. So
also, if instead of driving it himself, he employs a servant to do it, the servant is only an
instrument set in motion by the master, and whatever the servant does would, in law, be
regarded as the act of his master. Qui fact per alium facit per se: He who does an act
through another is deemed in law, to do it himself.

Illustrative cases where the maxim was applied

Milner v. Great Northern Railway: (1884) 5 L.T.N. 367

A cloak-room clerk in the employment of a Railway Company had to take parcels of the
passengers from the cloak-room to the train as part of his duty. Whilst doing so one day, when
he was coming back, he ran against another porter, who in turn dashed against the ticket
collector and the ticket collector collided with the plaintiff's wife, causing injuries which
resulted in her death. When the plaintiff sued the Railway Company, it was held that the
Company was liable for damages, as, at the time of the accident, the clerk was acting within
the scope of his employment.

Lambert v. Great Eastern Railway: (1909) 2 K.B. 776

A Railway Company was empowered to employ special constables. One such constable
arrested a person for a felony without any reasonable cause. The court held that the Railway
Company was liable for the constable's act.

Illustrative cases where the maxim was not applied

Brinkly v. Farmers Elevator Mutual Insurance Co.: 485 F 2d 1283

In this case, the interesting issue before the court was whether, under the above maxim, a client
is liable for the conduct of his lawyer, which causes injury to a third party. The plaintiffs had
sustained serious injuries in a collision due to the negligence of the defendant's lawyer, Mr. A,
who was returning home after representing his client's case when the accident occurred. The
client denied any vicarious liability on his part. The court held that, even if it is argued that the
relationship between the client and Mr A was one of agency, at the time of the collision, he was
not engaged in the furtherance of the client's business to such a degree that it could be said that
the client had the right to direct and control his physical conduct. Accordingly, it was held that
the client was not vicariously liable.

Deatons Proprietary Ltd. V. Flew: (1949) 79 C.L.R. 370

In this case, X entered the defendant's hotel and spoke to a barmaid, who threw a glass of beer
on his face. According to X, he had asked her a polite question but the bar-maid said that he
had insulted her. When the matter went to court, it was held that although the bar- maid was
liable, the owner of the hotel was not liable, as the bar- maid's act was an independent act which
was not connected to the work which she was employed to perform.
ACTUS DEI NEMINI FACIT INJURIAM

(The law holds no man responsible for an act of God)

This is a very important defence available to the defendant in any civil suit. An act of God is
such a direct, violent, sudden, and irresistible act of nature as could not, by any amount of
human insight, have been foreseen, and if foreseen, could not, by any amount of human care
or skill, have been resisted. Thus, an act of God is the antithesis of the act of man.

Acts which are occasioned by the elementary forces of nature, unconnected with the agency of
man or any other cause, come under the category of acts of God, for instance, storm, tempest,
lighting. extraordinary fall of rain, extraordinary high tide, extraordinary severe frost, etc.

The doctrine of frustration of contracts is a reflection of the principle underlying this maxim.
Thus, if A has agreed to sell his house to 8 on a particular day and the house is accidentally
burnt down before that day. A is excused from performing the contract.

The essence of the maxim is that it would not be in the interest of justice to hold anyone
responsible for an act over which he has no control. Thus, where it is proved that a liability in
tort has arisen due to an act of nature which is outside the control of the defendant, he is excused
from liability by placing reliance on this maxim. When doing so, the burden of proof lies on
the defendant to prove that such unforeseen circumstances existed.

Illustrative cases where the maxim was applied

Nichols v. Marsland: L.R. 2. Ex. Div. 1

In this case, the defendant had a series of artificial lakes on his land, in the construction or
maintenance of which there had been no negligence. Owing to a most unusual fall of rain, so
great that it could not have been reasonably anticipated, some of the reservoirs burst and carried
away four country barges. It was held that the defendant was not liable in as much as the water
escaped by an act of God.

Crossley v. Rawlinson: (1982) 1 W.L.R. 369

The defendant's truck caught fire owing to his negligence, and a patrolman (who was about
100 yards away) grabbed a fire extinguisher and rushed towards the truck. In doing so, he
stumbled on a concealed hole on the pathway and injured himself. In a suit by the patrolman
against the defendant, the court held that although the fire was caused by the defendant's
negligence, the plaintiff's injury was caused by an accident which was not reasonably
foreseeable and therefore, the plaintiff could not succeed - illustrative cases where the maxim
was not applied.

Slater v. Worthington: (1941) 1 K.B. 488

Owing to very severe snow storms, snow and ice had accumulated on the roof of the defendant's
premises. No steps were taken to remove the snow or warn the public of its presence. The
plaintiff, while standing on the pavement outside the premises, was injured by a fall of snow
that had accumulated on the roof. The snow could have been removed from the roof but this
was not done. The plaintiff claimed damages, alleging nuisance and negligence. It was held
that the accumulation of snow constituted a public nuisance of which the defendants were
expected to have knowledge. It was the duty of the defendants to safeguard the public from the
danger occasioned by the snow, and as they had failed to perform this duty. they were liable
for both nuisance and negligence. The plea that the storms were acts of God was no defence,
as it was the snow and not the storms, which directly caused the injury.

Municipal Corporation of Delhi v. Sushila Devi: A.I.R. 1999 SC 1929

Whilst a man was riding a scooter, a branch of a tree suddenly fell on his head, injuring him,
as result of which he died. A suit was filed by his heirs for damages. The evidence before the
court was that the tree in question was a dead tree, having no bark or foliage. The Corporation
should have carried out a periodic inspection of the trees and should have taken safety
precautions to see that the road was safe for its users and ensure that trees and their projecting
branches, which could prove to be dangerous to passerby, were removed. As there was no act
of God involved like storm or lighting, the corporation was held liable.
IN JURE NON REMOTA CAUSA SED PROXIMA SPECTATUR

(In law, the immediate, not the remote, cause of any event is to be regarded)

Sometimes, a person who suffers damage on account of a wrongful act cannot claim
compensation for that particular damage because the connection between such damage and the
wrongful act is too remote. In jure non remota causa sed proxima spectator.

The commonest application of this maxim is in the field of marine insurance. If the owner of a
ship sues to recover a loss under the maritime insurance policy, the loss must be one which was
directly occasioned by some peril covered by the policy. It is not enough that the loss was
incurred indirectly through a peril which was insured. In other words, the loss must be
occasioned by a peril acting immediately on the ship, and thereby causing the loss. In England.
the Marine Insurance Act, 1906, provides as under:

The insurer is liable for any loss proximately cause by a peril insured against, but he is not
liable for any loss which is not proximately caused by a peril insured against." Application of
the maxim under the Law of Contracts

Under the well-established principles of law of contracts, no compensation can be recovered

for any remote or indirect loss or damage sustained by a breach of contract. This principle was
accepted in the leading English case, Hadley v. Baxendale (9 Ex. 341) and is also reflected in
S. 73 of the Indian Contract Act, 1872.

Thus, A has agreed to pay a certain sum of money to B on a specified date, but he fails to do
so. B, in consequence of not receiving this amount on that day, is unable to pay his own
creditors and is declared insolvent. In these circumstances, B cannot claim anything from A,
except the principal amount, together with interest upto the date of payment. The loss suffered
on account of his being declared insolvent is a remote loss and cannot be recovered.

Application of the maxim under the Law of Torts

Under the law of torts, when a plaintiff sues on the ground of negligence, he must show that
the defendant was under a legal duty to exercise due care and skill towards him, which he did
not exercise. However, he must also show that the breach of some duty was the causa causans,
that is, the direct and proximate cause of his loss or injury. If the connection between the
negligent act and the damage suffered is not direct, the damage is too remote and the plaintiff
cannot succeed.
In an action under the law of torts, the defendant is, as a rule, not liable if the chain of causation
has been snapped by novus actus, that is, by the intervention of a third party. Thus, in England,
it is the duty of railway companies not to allow their compartments to be over- crowded, but
theft, though it may be facilitated by over-crowding, is not the direct or natural consequence of
over-crowding. Therefore, a passenger whose purse is stolen by another passenger in an over-
crowded compartment cannot sue the railway company for his loss. (Cobb v. G. W. Rly. Co.,
1893 1 Q. B. 459)

Illustrative cases where the maxim was applied

Redman v. Wilson: 14 M. & W. 476

In this case, a ship was insured against the perils of the sea. When the ship was being loaded,
it was damaged by the negligent loading of cargo by the natives of Africa, and since it was
pronounced unseaworthy, it was run ashore to prevent it from sinking and to save the cargo. In
the circumstances, the court held that the maxim, "In jure non remota causa, sed proxima
spector, would apply. The immediate cause of the loss, that is, the stranding of the ship, was a
peril of the sea.

Wadsworth Lighterage & Coaling Co. v. Sea Insurance Co.:1930 35 Co. Cas. 1

In this case, a steam barge, which was docked on a calm, windless night, sank as a result of its
decayed condition. When the insurers were sued for the loss, it was held that the loss was due
to ordinary wear and tear and was not covered by perils of the sea. The Insurance Company
was, therefore, not liable.

Illustrative cases where the maxim was not applied

In cases of marine insurance, the maxim would not apply where a loss is occasioned by the
assured himself. If it were otherwise, it would contravene the fundamental rule of insurance
and also the intention of the parties. Thus, if a ship is sunk by being intentionally run on a rock,
the Insurance Co. would not be liable.

Secondly, the maxim does not apply to any transaction which is originally founded in fraud. In
such cases, the law also looks at the corrupt beginning, and not only at the proximate cause.
The series of events may be considered as one entire act in the eyes of law in such cases.

Lastly, as pointed out by Lord Bacon, the maxim does not ordinarily hold good in criminal
matters, as will be clear from the following example. A, intending to kill B, fires a gun at him,
but misses. So, he throws down his gun and runs away. B, however, runs after him in order to
kill him. Thereupon, A takes out a dagger and stabs B, resulting in B's death. In this case, if
only the immediate cause is to be taken into consideration, A may go scot-free, as his act would
be justified as being in self-defence. But the law would look beyond the immediate cause, and
when the remoter cause is seen, A would be guilty of murder, having done an act in execution
of his earlier intention to murder B.