Volenti Non-Fit Injuria: A Doctrinal Analysis of Consent and Its Limits in Tort Law

This article has been written by Harsh Vardhan Gupta, a law student at IILM University, Greater Noida.

***This article has been selected for LegalOnus Law Journal (LLJ) Volume 1, Issue 8 2025.

Introduction;

The term “tort” has origins in the French language and is comparable to the English word “wrong,” the Romanian “delict,” and the Sanskrit term “jimha.” It comes from the Latin word “tortum,” which translates to “wrong” or “injury,” and further originates from the Old Latin verb “toquere,” meaning “to twist”. This field deals with various tort or unlawful actions in which an individual infringes upon another person’s legal rights. The law mandates respect for the legal rights of society’s members, and anyone who violates this duty is considered to have engaged in wrongful conduct. A ‘breach of contract’ refers to the failure to full fill an obligation agreed upon by a party in a contract, while a tort signifies a ‘breach of duty’ acknowledged by tort law, similar to how a ‘crime’ originates from a breach of duty recognized by criminal law. A person who commits a tort is termed a “tortfeasor,” and when multiple individuals are involved, they are referred to as “joint tortfeasors”. Their misconduct is identified as a “tortious act,” and they can be held liable either individually or collectively. The primary objective of Tort Law is to provide compensation to victim.

Section 2(m), of the Limitation Act, 1963³, talks about tort law as a civil wrong which is not just exclusively a ‘breach of contract’ or a ‘breach of trust’. This paper offers an evaluation of the defences outlined in tort law, focusing specifically on ‘volenti non-fit injuria’. It examines the development, implementation, and constraints of this doctrine by analysing key case laws, statutory interpretations, and comparisons with other legal systems.

Jurist perspectives;

“It is a civil wrong for which the remedy is a common law action for unliquidated damages and which is not exclusively the breach of a contract or the breach of trust or other merely equitable obligation.”– Salmond.⁴

“Tortious liability arises from the breach of a duty primarily fixed by the law: this duty is towards persons generally and its breach is redressable by an action for unliquidated damages.”–Winfield.

“It is an infringement of a right in rem of a private individual giving a right of compensation

at the suit of the injured party.”- Fraser. (BANGIA, LAW OF TORTS, 2021, Ed.)

Understanding when the wrong is a tort;

A tort is a type of civil wrong, but not all civil wrongs are torts. If the wrongful act is only a simple breach of contract or breach of trust, it is not considered as a tort.

To assess whether a wrongdoing qualifies as a tort, the first step is to determine if the act is civil or criminal. If it’s a civil wrongdoing, the next step is to check if it fits into an established category of civil wrongs, like breach of contract or breach of trust. If it doesn’t fit these categories but still results in harm, it can be categorized as a tort. It’s important to note that tort law is not codified, it evolves through court rulings and legal principles instead of being outlined in written law. At times, a single action can result in both a tort and a breach of contract. For instance, if A entrusts B with a horse for safekeeping and B fails to care for it, resulting in the horse’s death, B would be responsible for both breach of bailment and the tort of negligence. While both are civil wrongs and compensation is often a remedy, the plaintiff needs to decide whether to pursue damages under tort or contract law, as they cannot receive compensation for the same act through both avenues.

Objectives of the Study;

• To investigate the fundamental principles of tort law and its principal defences, focusing on their role within civil liability systems.
• To conduct a thorough analysis of the doctrine of ‘volenti non-fit injuria,’ including its legal prerequisites, range, and constraints.
• To evaluate how different courts interpret and apply ‘volenti non-fit injuria’ in various jurisdictions, especially in the UK and India.
• To propose legal reforms and clarify doctrinal uncertainties to promote fairness and consistency in the application of this defence in contemporary tort law.

Scope & Significance of this Study;

This research paper examines the scope and use of the tort law defence known as ‘volenti non- fit injuria,’ focusing on its legal development, judicial interpretation, and ongoing significance in modern legal settings. It presents both Indian and common law viewpoints, analysing significant court rulings from India and the UK. The study investigates how courts assess voluntary consent in intricate cases involving sports injuries, medical malpractice, workplace dangers, and rescue efforts. It also explores the doctrinal distinctions between ‘volenti non-fit injuria’ and similar defences like contributory negligence and necessity, highlighting overlapping principles, legal disputes, and interpretive challenges. The research is limited to civil liability within tort law, intentionally leaving out aspects of criminal law.

The importance of this study lies in its in-depth examination of the theoretical bases and practical difficulties of applying ‘volenti non-fit injuria’ in contemporary tort cases. It emphasizes the changing judicial perspective on the voluntariness and informed nature of consent, which is often shaped by contextual variations and socio-economic factors. Furthermore, it clarifies the relationship between ‘volenti’ and contributory negligence, providing insights into their respective legal consequences. By pinpointing inconsistencies and shortcomings in the current jurisprudence, this research adds significant value to academic discourse and suggests reform-oriented solutions. It is especially relevant for legal scholars, practitioners, and policymakers aiming to enhance fairness and consistency in civil liability adjudication.

General Defences Under Tortious Liability;

Defences are those contentions which persuade the judge that the respondent is not liable for the demonstration that he is being blamed for conferring. Thusly, safeguards can be characterized as those contentions that can be utilized to escape obligation.

Using a defence, the defendant might avoid paying damages for violating someone else’s legal rights by absolving him of the tort’s guilt.

Defences that are available under all areas of tort law are as follows;

• Volenti Non-Fit Injuria
• Act of God
• Inevitable Accident
• Plaintiff the wrongdoer
• Negligence
• Private Defence
• Mistake

Volenti Non-Fit Injuria;

The phrase “Volenti Non-Fit Injuria” is a Latin legal maxim meaning “to a willing person, no injury is done.”

In simple terms, it suggests that if someone willingly endures a situation, it is not considered an injury, and an injury cannot arise from an action the injured party voluntarily undertook. This defence frees the tortfeasor from liability if it can be shown that the harm was a result of the injured party’s informed consent and voluntary action. Essentially, the key element of this defence is the permission given by the injured party.

If an individual willingly experiences harm, it is not legally regarded as an injury and is not grounds for a lawsuit. The maxim ‘volenti non-fit injuria’ embodies this idea, indicating that a person cannot claim injury for risks they knowingly accepted or willingly took on. If a person has provided either explicit or implied consent, they are unable to sue for tort.

For example, attending an IPL T20 match, spectators are aware that bowlers may hit sixes into the crowd, and by attending the game, they accept this risk. Thus, if a viewer is struck by a ball while in the stands, they cannot take legal action against the stadium or event organizers.

Conversely, if someone is parked 200 feet from the stadium and a batter like Chris Gayle hits a ball that breaks the car’s windshield and causes injury, this is an event the victim did not foresee or consent to. In such cases, where the risk is unexpected and unusual, the injured party is entitled to compensation, and the defence of “Volenti Non-Fit Injuria” does not apply.

To support this defence, the defendant must establish certain fundamental points that embody the principle of ‘volenti non-fit injuria.’

Essential elements of this doctrine;

In order to effectively utilize the defence of ‘volenti non-fit injuria’ in tort law, specific key factors must be demonstrated. These factors are crucial in assessing the validity of the plaintiff’s consent to the risk and the potential immunity of the defendant from liability. If these fundamental criteria are not met, the defence will not stand in a legal context.

Mere knowledge does not imply assent;

For the maxim ‘volenti non-fit injuria’ to be applied and in favour of the defendant, some points have to be proved:

1. Knowledge of the risk;

As a first step, the plaintiff must be aware of the nature of the act and the associated risks involved in carrying it out. If the plaintiff is unaware of the specifics of the work and the extent of the risks when undertaking the task, it will be assumed that they lacked knowledge of the risks. The plaintiff’s awareness is crucial in this context, and without it, the defendant cannot invoke the defence of ‘volenti non-fit injuria.’

2. He, knowing the same, agreed to suffer the harm;

At second instance, this point means that the plaintiff was fully aware of the risk and still after knowing the risk the plaintiff voluntarily accepted it, which makes it unfair to hold the defendant responsible. For example, if the plaintiff willingly takes part in a speculative activity like motor racing and gets injured, and the plaintiff filed a suit claiming a compensation. Here, the defendant can argue that the plaintiff knew about the dangers of the activity still accepted it. Since, the activity was willingly accepted with all the dangers knowing, the defendant should not be blamed or held legally liable for the injury.

In the case of Bowater v. Rowley Regis Corporation⁵, (IPSA LOQUIYUR .COM, n.d.)³ the plaintiff was employed by the defendant corporation to collect road sweepings. His foreman ordered him to take out a particular horse, even though both of them knew that the horse had bolted on two previous occasions. The plaintiff protested, but the foreman said it was an order. The horse later bolted, throwing the plaintiff from his cart and injuring him.

The plaintiff sued his employer in negligence for failing to provide him with a safe and suitable horse. The employer responded that the defence of ‘volenti non-fit injuria’ applied because the claimant knew the horse was dangerous. The Court of Appeal held that the employer was negligent and that the defence of ‘volenti non-fit injuria’ did not apply.

In this particular instance Mr. Goddard LJ suggested that the defence might apply where the defence might apply where the employee’s normal tasks are inherently dangerous, but it was doubtful whether the dicta would be followed today. It is more likely that the court would instead hold that a failure to prevent unavoidable dangers involved in a particular industry is not a breach of duty.⁶

Similarly, in the case of Smith v. Charles Baker & Sons⁷, (IPSA LOQUIYUR .COM, n.d.) the plaintiff was a workman employed by a railway company to drill holes in a rock near a crane operated by the company. The crane was responsible for lifting stones, which were swung overhead sometimes, posing a risk of injury to those working below. Mr. Smith was fully aware of the danger of working in proximity to the crane and had knowledge that stones could potentially fall.

One unfortunate day, a stone fell off the crane and struck smith, causing him serious injuries. Despite the fact that Smith was aware of the risk posed by the overhead crane, no warning had been given regarding the specific danger of stones being swung directly above his head. Furthermore, another employee had previously raised concerns about this very issue, but no action was taken to mitigate the risk. In response to the injury, Smith sued his employer for negligence under an act⁸.

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 defendants were liable.

In this particular instance Lord Herschell said⁹: “ 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 a knowledge of the risk preclude the employed, if he suffers from such negligence, from recovering in respect of his employer’s breach of duty? I cannot assent to the proposition that the maxim ‘volenti non-fit injuria’, applies to such a case and the employer can invoke its aid to protect him from liability for his wrongs.

In this case of Dann v. Hamilton¹⁰, the plaintiff entered the backseat of a car driven by the defendant, who she (the plaintiff) was aware was intoxicated. She was not forced to get in, nor was it necessary for her to do so. Earlier that evening, the plaintiff had been driven around by the defendant and recognized his reckless driving.

The defendant subsequently crashed the car while under the influence of the intoxication, resulting in his death and injuries to the plaintiff. She then filed a negligence lawsuit against the defendant’s estate. While the estate acknowledged the negligence, it also presented the defence of ‘volenti non-fit injuria’.

The Court held in favour of the plaintiff. This was not the kind of extreme case getting into an obviously dangerous situation would trigger the defence.

In this case, Asquith J explained that to establish ‘volenti non-fit injuria,’ the defendant must first show that the plaintiff had complete knowledge of the danger. They must then show that the plaintiff also consented to it. However, he stated that complete knowledge does not by itself imply consent to waive liability for the risk.

He went onto saying that voluntarily getting into a car with a drunk driver does not indicate that the plaintiff has waived liability for any injury sustained as a result. The justification was that it is much harder to rely on acts done at a time when there is merely a risk of negligence as authorising possible negligence. “Clearer evidence of consent is needed.¹¹”

Consent must be free;

The defence of ‘volenti non-fit injuria’ will only be available for the defendant when the consent of plaintiff is made by free will. In addition to understanding the nature and level of risk associated with an act, it is also essential for the plaintiff to freely consent to that risk. This consent must be given willingly and without any duress. Any consent provided by the plaintiff as a result of coercion, force, deception, or misunderstanding cannot be considered genuine consent. Consent is of two types given as follows;

• Expressed Consent;

It is a clear and explicit agreement given by an individual, conveyed either verbally or in writing, to permit a specific action or use. It is intentional and well-informed, leaving no ambiguity about the individual’s intentions. This form of consent is often required in legal, medical, or contractual contexts to ensure that the person comprehends the implications of their agreement. Unlike implied consent, which arises from actions or circumstances, express consent is clearly stated. It is crucial for validating agreements, sanctioning data usage, or permitting physical or legal actions concerning personal rights or property.

In the case of “Schloendorff v. Society of the New York Hospital¹²,”⁴ the plaintiff was hospitalized at New York Hospital due to a stomach issue. She consented to an ether examination but reportedly refused permission for surgery. While she was unconscious from the ether, a tumour was removed without her direct consent. The hospital operates as a nonprofit entity, with its doctors working without compensation. After the surgery, the plaintiff developed gangrene in her left arm, resulting in amputations and considerable pain. the court held that the hospital is not liable for an unauthorized operation (trespass/assault) performed by its physicians on a patient, provided the hospital exercised due care in the selection of the physician, because the physician acts as an independent contractor, not as a servant of the hospital.

Justice Cardozo famously stated, “Every human being of adult years and sound mind has a right to determine what shall be done with his own body.”

In addition to “Society of the New York Hospital” case, similar reasoning for the liability of the guilty can be seen in the case of Lakshmi Rajan v. Malar Hospital¹³.⁵

• Implied Consent;

It is an agreement that isn’t explicitly stated but is inferred from an individual’s behaviour, the situation, or the relationship between those involved. It occurs when a person’s actions suggest they permit a specific action, even without direct communication or written agreement. This form of consent is commonly acknowledged in legal, medical, and contractual environments, where it may be assumed based on common practices or past interactions. Though it isn’t directly expressed, implied consent holds legal significance and can be interpreted based on the context, reasonable expectations, and the circumstances surrounding the event.

In the case of “Hall v. Brooklands Auto Racing Club¹⁴,”⁶ the plaintiff was a spectator in the defendant’s race club. using the race, there was a collision between two cars and as a result one of the cars was thrown on spectators and injured the plaintiff. It was held by the court that the defendant was not liable for the injury caused to the plaintiff as he had impliedly consented to suffer the damage which was incidental to such sports (motor race).

In addition to “Auto Racing Club” case, similar reasoning can be seen in the case of Padmavati Dugganaika¹⁵.⁷

Consent obtained under coercion does not constitute true consent;

If an individual is legally obligated to perform an action, their agreement to do so is not genuinely voluntary. True consent cannot be considered free until the person has the option to choose between an ‘action with risk’ and an ‘action without risk.’ Typically, a prudent person would agree to an action that carries no risk. However, if someone voluntarily chooses to engage in a risky action and subsequently suffers harm, they cannot invoke the principle of ‘volenti non-fit injuria.’ It’s important to differentiate between ‘submission’ and ‘consent.’ While all consent involves submission, not all instances of submission equate to consent.

For example, if someone’s submission is procured through deceit or based on a misunderstanding without awareness of the true nature of the action then it does not imply genuine consent.

In the case of R v. Williams¹⁶,⁸ the defendant served as the music instructor for the plaintiff who was a minor. He engaged in sexual relations with her, claiming these acts would help with her breathing and enhance her singing abilities. The girl consented, thinking she was undergoing a medical or surgical treatment. The defendant was found guilty of rape but later appealed his conviction, arguing that the complainant had given her consent.

The Court of Appeal confirmed the conviction. The defendant misled the plaintiff regarding the nature and quality of his actions, leading her to believe that they were non-sexual activity. As a result, she did not give valid consent, and held that her consent was obtained through deceit.

Consent refers to a person’s deliberate intention to allow a certain action to take place, along with an understanding of what that action entails.

Act must be lawful;

For the ‘volenti non-fit injuria’ defence to be valid, the action that a person consents to that consent must be legal, and its execution must adhere to legal standards. Consent does not provide justification for illegal actions. For instance, in boxing, participants agree to endure harm as long as they follow the rules. However, if a boxer competes without gloves, breaching the regulations, the action is deemed unlawful, and consent is not a legitimate defence in tort law.

Breach of statutory obligation;

The defence of ‘volenti non-fit injuria’ is typically not applicable in situations where there is a violation of statutory duty. When a law establishes responsibilities intended to safeguard a particular group, like those concerning workplace safety, a person’s consent cannot nullify the legal obligations that exist. Consent does not legitimize failure to adhere to statutory regulations. Therefore, even if someone consents to take on a risk, the defendant can still be held responsible for any damages stemming from a violation of the law, as these protective duties cannot be waived.

In the case of Imperial Chemical Industries v. Shatwell¹⁷,⁹ The situation belongs to the Shatwell brothers, who worked for Imperial Chemical Industries (ICI) at a munitions factory. Their responsibility was to test an electrical circuit designed for detonation of explosives, which is a risky job. Safety regulations required the use of certain authorized materials for this testing, and the employees were given explicit guidelines to follow these safety measures. Nevertheless, because approved materials were not readily accessible, the Shatwell brothers choose to bypass the established protocols. They utilized unauthorized and unsuitable wiring to finish the test circuit, leading to an explosion that severely injured them.

The House of Lords decided in favour of ICI, the employer. While it recognized the employer’s overall responsibility to ensure a safe workplace, the court found that the actions of the Shatwell brothers represented a considerable departure from their duties and safety procedures.

‘Judge Lord Reid,’ pointed out that the brothers willingly put themselves in harm’s way by using unauthorized and hazardous materials. This legal doctrine, which translates to, “to one who is willing, no injury is done,” implies that employees who consciously place themselves at risk by violating safety guidelines may lose their right to seek compensation from their employer. (BANGIA, LAW OF TORTS, 2021, Ed.) (PANDEY, 2023)

Limitations on the scope of the doctrine;

The application of ‘volenti non-fit injuria’ is confined to instances where the plaintiff freely and knowingly consents without any pressure. It is not relevant in situations involving coercion, power imbalances, violations of statutes, or acts of rescue. Courts limit its application to avoid protecting negligent behaviour based on assumed or forced consent.

In Rescue cases;

Rescue situations are an exception to the principle of ‘volenti non-fit injuria’. If a plaintiff willingly accepts a risk in order to help someone facing immediate danger due to the defendant’s wrongful actions, the defence of ‘volenti non-fit injuria’ cannot be used against them.

In the case of Haynes v. Harwood¹⁸,¹⁰ Harwood’s servant parked a two-horse carriage in front of a police station while attending to other duties in a nearby residential area. During the servant’s absence, children startled the horses, causing them to escape and posing a danger to nearby pedestrians. Officer Haynes observed this situation from a window, rushed outside, and managed to stop the horses, though he sustained injuries in the process. He subsequently filed a lawsuit for damages and won at trial, but the defendant later appealed the decision.

The court determines that the maxim ‘volenti non-fit injuria’ is not relevant in situations like this. When an individual takes action to assist others who are in peril due to someone’s negligence, they can be held responsible for any damages arising from their actions, provided those actions are reasonable under the circumstances. Taking on risks does not apply in the context of rescue efforts.

In addition to “Haynes v. Harwood” case. Similar, reasoning can be seen in the case of Hyett

1. Great Western Railway Co.¹⁹¹¹
2. Under the Contract Terms Act, 1977 (England);

The principle of ‘volenti non-fit injuria’ has been eliminated in cases involving personal injury or harm due to negligence, meaning that defendants can no longer argue that plaintiffs consented to the risk of harm through a contract. However, in business scenarios, contractual exemptions may be permitted. According to Section 2(1) ²⁰of the Act, individuals cannot use any contract terms or general or specific notices to exclude or limit their liability for death or personal injury caused by negligence. For other types of loss or damage, liability for negligence can only be excluded or restricted if the terms or notices meet the standard of reasonableness, as outlined in Clause 2(2).²¹ (Manupatra.com, n.d.)

Difference b/w “Volenti Non-Fit Injuria” and “Contributory Negligence”;

“Volenti Non-Fit Injuria” is a complete defence. Since, the passing of the law reform (Contributory Negligence) Act, ²²1945, here, the defendant’s liability is based upon the proportion of his fault in the matter.

When both parties lack awareness, ‘contributory negligence’ may apply. Here are the distinctions between ‘volenti non-fit injuria’ and ‘contributory negligence’;

The ‘volenti non-fit injuria’ doctrine serves as a total defence, while in cases of contributory negligence, the defendant’s liability is determined by the degree of their fault. In contributory negligence, any damages the plaintiff can recover will be reduced based on their own level of responsibility.

In situations involving contributory negligence, both the plaintiff and defendant are negligent. Conversely, in ‘volenti non-fit injuria,’ the plaintiff may have voluntarily engaged in an activity while also taking necessary precautions for their safety.

Another key difference lies in the plaintiff’s awareness of the risks involved. In ‘volenti non- fit injuria’, the plaintiff fully comprehends the nature and extent of the danger they face. In contrast, a plaintiff in a contributory negligence case is typically unaware of the risk, even though they should have been known of the risks. (Manupatra.com, n.d.)

Literature Review;

Here, is the review of the article titled “Volenti Non-Fit Injuria, Voluntary Assumption” by Francis H. Bohlen [Harvard Law Review, Vol.20, No.1 (Nov, 1906), pp. 14-34, https://www.jstor.org/stable/1322882], “Volenti Non-Fit Injuria, Voluntary Assumption” by Francis H. Bohlen [Harvard Law Review, Vol.21, No.4 (Feb, 1908), pp. 233-260, https://www.jstor.org/stable/1324733] these reviews provide a summary and critical insight on ‘volenti non-fit injuria.’

In Part I, Bohlen explores the origins of ‘volenti non-fit injuria’ within the individualistic framework of common law, differentiating it from contributory negligence. He points out that this doctrine is contingent on authentic consent free from coercion in voluntary relationships, such as between a licensee and licensor. Historical cases, like Priestly v. Fowler²³,¹² demonstrate its use in master-servant situations, where servants were typically considered to accept inherent risks if not misled. Bohlen notes exceptions where statutory or common-law rights, such as safe premises for tenants, challenged the idea of voluntariness, arguing that genuine consent necessitates options beyond the relinquishment of legal rights. The article highlights the conflict between personal accountability and socio-economic disparities, presenting the doctrine as a judicial mechanism that seeks to balance individual autonomy with fairness.

Bohlen’s second article explores the use of ‘volenti non-fit injuria’ in employer-employee dynamics after 1880, particularly in relation to England’s Employers’ Liability Act²⁴. He compares English and American legal perspectives, highlighting that English courts, Smith v. Baker, increasingly acknowledged that economic pressure could compromise genuine consent, ruling that employees who continued working despite being aware of risks could still seek compensation unless there was true consent involved. In contrast, U.S. courts Lamson v. Co.²⁶)¹³ adhered more strictly to this doctrine, focusing on employee’s awareness of risks unless overridden by legal obligations such as safety regulations. Bohlen critiques the notion of implied consent in contracts, arguing that statutory protections demonstrate a legislative intent to combat worker’s economic vulnerability, shifting the emphasis from mere awareness of risks to the genuine voluntariness of taking them on.

Bohlen’s two-part examination highlights ‘volenti non-fit injuria’ as a principle influenced by practical judicial reasoning and legislative actions. In Part I, the analysis lays out its theoretical base focuses on individual autonomy, while Part II shows how its application in labour law has changed, illustrating societal awareness of structural inequalities. Overall, the two parts emphasize the importance of differentiating between surface-level and authentic consent, especially in situations where economic pressure or legal obligations complicate true voluntariness. (Bohlen, 1906-1908)

Interpretation of Courts in Jurisdictions of ‘UK’ and ‘INDIA’;

Assessment of the Doctrine and the Researcher’s Viewpoint;

The principle of ‘volenti non-fit injuria’ holds that individuals who willingly accept risks cannot later seek compensation for injuries that arise. However, in real-life situations, especially in sports, this idea can lead to fairness issues. For instance, while attendees at events like cricket games or car races may recognize certain risks, they do not inherently agree to face serious or unexpected dangers, such as being hit by a flying ball or vehicle. Research on tort defences indicates that for the defence to be valid, consent must be both voluntary and fully informed. If event organizers fail to implement reasonable safety measures, like protective barriers, it raises doubts about whether genuine consent is given. Consequently, applying this doctrine without carefully examining the injured party’s understanding and willingness can result in unfair outcomes and divert accountability from those responsible for ensuring safety.

Legal Reforms need to be implemented regarding the doctrine “Volenti Non- Fit Injuria”;

To enhance the fairness and effectiveness of the doctrine of ‘volenti non-fit injuria’ in contemporary society, the following legal reforms are suggested:

1. Codify the Elements of Valid Consent: Legislation should establish clear criteria for valid consent in tort law, ensuring it is informed, specific, and voluntarily given. This would mitigate the tendency to rely on implied consent in public and commercial situations where risks may not be apparent.
2. Require Safety Measures in High-Risk Activities: Event organizers for sports, recreational activities, and employers should be legally required to implement appropriate safety protocols. Failure to do so should disallow the use of ‘volenti’ as a legal defence.
3. Implement a Duty to Warn Standard: Defendants should be obligated to provide clear and visible warnings about risks that are not immediately Courts should assess the adequacy of these warnings before permitting the defence to be invoked.
4. Reform Judicial Interpretation: Judicial training and appellate advice should focus on the evolving understanding of consent, particularly in situations involving minors, workers, and individuals who are socio-economically vulnerable.
5. Adopt a Partial Defence Approach: In instances where both parties share responsibility for the risk, reform ‘volenti’ to function as a partial defence (similar to contributory negligence), thereby decreasing liability instead of completely absolving

Conclusion;

The principle of ‘volenti non-fit injuria’ emphasizes the acceptance of risk by individuals but encounters difficulties in guaranteeing true consent when power disparities exist. While UK courts focus on statutory protections for workers, Indian legal systems adjust to their socio- economic context. To promote fairness, it is essential to implement legal reforms, such as establishing clear standards for consent, enforcing mandatory safety measures, and ensuring fair distribution of liability. Updating judicial interpretations and legal frameworks is necessary to harmonize personal autonomy with societal responsibility in tort law.

References;

• BANGIA, R. (2021, Ed.). LAW OF TORTS (26th ed.). ALLAHABAD: ALLAHABAD LAW AGENCY.
• Bohlen, H. (1906-1908). Voluntary AssumpPage | 3tion. Harvard Law Review, 21. Retrieved from https://www.jstor.org/stable/1322882
• IPSA LOQUIYUR     .COM.     (n.d.).     Retrieved     from     IPSA     LOQUIYUR: https://ipsaloquitur.com/tort-law/cases/bowater-v-rowley-regis/
• com. (n.d.).               Retrieved                from               Manupatra: https://articles.manupatra.com/article-details/Volenti-Non-Fit-Injuria-An-Analysi
• PANDEY, J. (2023). LAW OF TORTS (TENTH ed.). (D. I. CHATERJEE, Ed.) UP, INDIA: CENTRAL LAW PUBLICATIONS.

¹ Smith v. Baker [1891] A.C. 325.

² Dann v. Hamilton [1937 D No 1828]; [1939] 1 K.B. 509.

³ Bowater v. Rowley Regis Corporation [1944] K.B. 476.

⁴ Schloendorff v. Society of the New York Hospital 105 N.E. 92, 93 (N.Y. 1914).

⁵ Lakshmi Rajan v. Malar Hospital III [1998] CPJ 586 (Tamil Nadu SCDRC).

⁶ Hall v. Brooklands Auto Racing Club [1932] All ER 208.

⁷ Padmavati v. Dugganaika [1972] ACJ 222.

⁸ R v. Williams [1923] 1 KB 340.

⁹ Imperial Chemical Industries v. Shatwell [1965] AC 656.

¹⁰ Haynes v. Harwood [1935] 1 K.B. 146.

¹¹ Hyett v. Great Western Railway Co. [1948] 1 K.B. 345; [1947] 2 All E.R. 264.

¹² Priestly v. Fowler [1837] 150 Eng. Rep. 1030.

¹³ Lamson v. Commercial Credit Corporation, 187 Colo. 382, 531 P.2d 966 (1975).