Applicability of volenti non fit injuria in sport: Both from players and viewers perspective

This article was written by Vasundhra Agarwal a student of University of petroleum and energy studies on account of her submission for 1st National Article writing Competition organized by Racolb Legal in which she scored 5th position.

Introduction

Volenti non fit injuria is a well known and much applied legal maxim. It is used as a general defence or justification of tort. This maxim is available to you in case a tortuous liability falls on you.

Winfield and Jolowicz defined tortuous liability as:

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

Basically, there are three essentials of torts:

• Wrongful act or omission
• Damage/ Injury
• Defendant failed to perform the duty

Even after fulfilling these conditions, one can be saved by taking one of the defences of tort. The defences of tort are volenti non fit injuria, act of God, inevitable accident, private defence, mistake, acts of necessity, statutory authority, judicial acts, quasi-judicial authority, executive authority, parental and quasi-parental authority, exercise of common rights and acts causing slight harm.

What is volenti non fit injuria?

One of the justifications of tort is volenti non fit injuria. Tort is defined under section 2(m) of the Limitation Act 1962 as a civil wrong which is not exclusively a breach of contract or breach of trust.[1] This maxim says that if you have consented to a particular act, you cannot deny later. It means ‘to one who volunteers, no harm is done’.

A man cannot complain of harm to the chances to which he has exposed himself with knowledge and of his free will.[2] It requires a freely entered and voluntary agreement by the Claimant, in full knowledge of circumstances, to release the defendant of all legal consequences of their actions. The consent can be of two types: express and implied. For the players and viewers, consent plays a major role in tort, thus making it essential to understand.

Express consent is where a person in open- verbally or contractually, expresses his consent to the risk involved in the matter after which he cannot complain about it given that everything has been done with reasonable care and as per duty.

Implied consent is consent which has been given by conduct of the parties concerned. Here, it is important to know that the plaintiff does not consent to the injury caused by the act but to a thing to which injury complained of is incidental. In case of any sport which involves physical contact, the sports person implicitly agrees or consents to an injury being incurred to him during the course of the game. For instance, when a footballer gets injured during the game, he cannot sue the opponent for tort as it is understood by a reasonable man that there is a possibility of an injury during the course of the game.

The requirements of the defence

• Voluntary: This defence is available to the defendant only when he proves that the plaintiff’s consent for the act was free and voluntary. If the claimant is in a position where he cannot exercise free choice, the defence will not succeed.

Also, consent given under compulsion is no consent. If a person is bound to do an act and he is forced to give his consent, then that is not a real consent. In case of employment relationships too, if consent is obtained by fraud or force of owner, it’s not real.

• Act must be lawful: The act and the way of doing it, to which the plaintiff has given his consent must be lawful otherwise the consent is of no purpose.

For instance, the boxing game must be played by gloves. If a person plays this game with naked hand then it will be an unlawful act and cannot be taken as a good defence.[3]

• Made in full knowledge of the nature and extent of the risk: The maxim is not scienti, but volenti. The plaintiff must have full knowledge of the act and the risk involved in it. However, mere knowledge of the act and the risk in it doesn’t imply that consent to a risk has been given for it. It varies from case to case.

Applicability in sport: Players and viewers perspective

The defence of volenti non fit injuria is very important in sports. Whether this defence can be availed depends on what type of consent has been given.

In the case of White v. Blackmore[4], Mr. White was killed at a Jalopy car race due to negligence in the way the safety ropes were set up. A car had crashed into the ropes 1/3 mile from the place where Mr. White was standing. He was catapulted 20 foot in the air and he died from the injuries received. The plaintiff, Mr. White, was a driver in the race but at the time of the incident, he was between races and standing close to his family. He was part of the competitors list which contained an exclusion clause. Also, at the entrance to the grounds, there was a warning sign which stated that Jalopy racing is dangerous and the organizers accept no liability for any injury including death howsoever caused. His widow brought an action against the organizer of the event who defended that on the grounds of volenti non fit injuria they were excluded from liability. The court held that the organizers were responsible as the barriers were improper. If the barriers were put and still the car had hit, then no remedy would be available. Here the consent had not been given for the negligent construction of ropes. Thus, as it was expected that the organization would be proper, the organizers were at fault in this case.

On the other hand, in Hall v. Brooklands Auto Racing Club[5], a spectator got injured by car. Here the plaintiff had consented to such possible injury by buying a ticket. Since the organizers were not negligent in their duty, volenti non fit injuria was applicable here. Thus, we see how consent and negligence vary and so the application varies.

Wooldridge v. Sumner[6], is a case in which the claimant was a photographer at a horse show. He was inside the ring where the horses race and so he got injured as the danger was more. Here the defence won’t be applicable as he was outside the barriers not inside where the viewers are supposed to be. Since there was no breach of duty and the defendants has taken due care, he was not compensated.

In Murray v. Harringay Arena Ltd.[7], a six year old minor got injured during a hockey match. Here, the organizers were not liable as they were not negligent and were reasonably careful. The court said that the plaintiff failed not because he consented to risk as a minor cannot give is consent, he failed because the organizer as not negligent with respect to the plaintiff’s safety.

Thus, if a player has consented to play a game which involves risk, he cannot take this defence. Similarly if any viewer gets injured to which he has consented, he is not compensated. It is true only if we assume that the organizers have done their duty else they can take this defence.

Limitations

Volenti non fit injuria does not apply in:

• Unlawful acts: An unlawful act can never be legalized; not even by consent or license. Also, here the defendant’s conduct must be reasonable. For instance, if in boxing a person uses a naked fist, it would lead to him being liable for is act.
• Breach of Statutory Duty: If an act leads to breach of statutory duty, then this maxim has no validity against such an act.
• Rescue cases: If the plaintiff rescues another person from danger of any injury or death, consciously and deliberately, then volenti non fit injuria would not be applied.
• Cases of Negligence: In case of negligence, generally this maxim does not apply. Volenti non fit injuria is available only if the plaintiff freely and voluntarily, with full knowledge of the nature and risk involved impliedly agreed to incur it and to waive any claim for injury.

Conclusion

This article draws our attention to how the maxim has been often cited and sometimes applied, in favor of defendants sued for personal injuries. This is applicable unless the facts disclose some breach of duty which the defendant owed to the plaintiff. It is essential to know to what the player or the viewer has consented to. If a player or a viewer has willingly participated in an activity and has readily embraced the risks involved in it, then if any injury occurs to him, it will not be the fault of others. The facts involved in every case are important. All we need to know is whether the risk was inherent or unacceptable. If a person has contributed to his own injury, the compensation ordered by the court would be reduced proportionately. So it is also important to know that negligence is on whose part and whether there is any negligence at all or not. Thus, basically negligence and consent determine the application of volenti non fit injuria for players and viewers.

[1] Limitation  Act 1962.

[2] Dr. Avtar Singh & Dr. Harpreet Kaur, Introduction to the Law of Torts (and Consumer Protection) 2^nd edn. 2009 Lexis Nexis Butterworths Wadhwa Nagpur.

[3] Dr. J. N. Pandey, LAW OF TORTS with Consumer Protection Act and Motor Vehicls Act 8^th edn. 2011 Central Law Publications.

[4] [1972] 3 WLR 296

[5] (1932) AII ER 208.

[6] (1963) 2 Q.B. 43

[7] (1951) 2 KB 529