Plea of Consent – Volenti Non Fit Injuria
Volenti non fit injuria Meaning
Volenti non fit injuria is also known as plea of consent in the law of tort. It entails that no injury can be done to a willing person. No injury is done to a person who consented. A person who is a volunteer or who abandons his right cannot as a general rule turn around and enforce the right, for he voluntarily assumed the risk. Thus, as a general rule, what a person consents to cannot be considered to be an injury. This is the defence of consent.
Consent is an express or implied agreement, approval, permission or acquiescence given voluntarily by a competent person to an act, conduct or cause of action. The defence of consent means that no injury is done to a willing person. This is so, because the general rule of law is that a person who consents cannot claim for injury, he cannot approve and disapprove. He cannot approbate and reprobate. He who comes to equity or law must come with clan hands. Therefore, a risk voluntarily, deliberately or impliedly undertaken cannot be the basis of a claim. However, as a general rule consent is not binding when it is obtained by coercion, fraud or undue influence.
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Therefore, where a person freely consents expressly or impliedly to a conduct and is injured, his consent may be a defence.to a willing person to harm is done. That a person consents to cannot be regarded as an injury. No act is actionable as a tort at the suit of any person who has expressly or by implication assented to it. No person can enforce a right which he has willingly waived or abandoned. No wrong can be done to a person who consents to what is done.
In other words, a person who has willingly consented to the commission of a tort or undertaken the risk of a tortious harm may not turn around to sue on it. The defence of consent is available whenever a plaintiff with full knowledge of the nature and extent of the risk, agreed to incur it.
Principle of Volenti non fit injuria
The Principle of volenti non fit injuria applies to two main kinds of injuries. There are:
- Deliberate Harm:
Deliberate harm is any intentional or wilful act or injury which is ordinarily a tort and rendering a tortfeasor liable, but for the fact that there is a consent by the person at the receiving end. For instance, participants in boxing and racing matches, are deemed to consent to the risks inherent in the sport.
- Accidental Harm:
Exposure to the risk of accidental or unintentional harm which ordinarily should give rise to a cause of action in the tort of negligent, but for the fact that the sufferer has consented expressly or by implication of his action. There is no liability. Instances, are the risk one runs in attending potentially dangerous sports event, such as watching motor racing. Consent also avails in surgical operations provided that the operation was done in term of what was agreed by the parties.
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When volenti non fit injuria will apply to a consent
- The injured person knew of the risk: the defendant must establish that the plaintiff or the person injured knew or understand the risk involved in the conduct that occasioned the injury.
- The injured person accepted the risk expressly or impliedly: the injured person knew the risk and accepted it expressly or impliedly. However, where the act or tort is unlawful, that is a crime it will as a general rule not be lawful nor excused just because the person to whom it is done consents to it.
Reference: Law of Tort – Ese Malemi
