Applicability of Volenti Non Fit Injuria in Sports: Both from Players as well as Viewers Perspective

This article was written by Shikha Pisal, student of University of petroleum and energy studies on account of their submission for 1st National Article writing Competition organized by Racolb Legal in which they scored 9th position.

Sport has become very popular among people. They are fascinated by sports and it has become a major source of entertainment for them. Today sports have grown as profession. But participation in sports also involves risk of injury because of which many cases are entertained by the courts. To such cases one of the general defence with the defendant is volenti non fit injuria.

What is defence?

Word defence has several meanings in law of tort. Defence is a general assertion made by the defendant that he is not guilty and the plaintiff has no ground of action against him. There are seven general defences available in torts. One of such general defence is volenti non fit injuria.

Volenti non fit injuria: Meaning

Volenti non fit injuria is a latin phrase which means ‘to one who voluntarily takes the risk, no harm is done’. It is a common law doctrine It is a general defence in law of tort which can be taken by the defendant absolving him of all liability.

Importance of volenti non fit injuria in law of tort

This defence absolves the defendant from all liability to which the plaintiff has consented in full knowledge of the risk involved presuming that the defendant will not be negligent. Burden of proof is on the defendant. Restriction on this defence is that the plaintiff must be capable of giving consent and it must be given voluntarily. An insane person or person of unsound mind can’t give consent. If this defence would not have been available with the defendant then he would have been liable for those injuries also which were known to the plaintiff and were not caused because his negligence.

Requirements of the defence

1. Free Consent
2. Agreement
3. Full knowledge of nature and extent of the risk

This defence can be taken only when the claimant has voluntarily and freely entered into an agreement with the defendant in full knowledge of nature of the risk and its extent to absolve the defendant from all liabilities. Consent can be implied or expressed.

When plaintiff gives the consent to take the risk it is assumed that the defendant will not be negligent on his part. This defence is also applied in the cases of sports. In sports defendant has to show that he followed the rules of the game.

Example:

Suppose if Raman went to see a cricket match. During the match batsman hit the ball and he sustained injuries. Raman claimed damages.

In this case defendant can take the defence of volenti non fit injuria. Plaintiff, despite knowing the risk consented to it. There was no negligence on the part of the defendant.

For the liability to occur in sports it must be proved that the defendant failed in his duty to take appropriate care or acted in a manner which the plaintiff has not expected.

Related Case:

Watson v British Boxing Board of Control[1]

In this case a professional boxer suffered head injuries in a fight. He was provided medical treatment by the doctors present there and later was taken to the hospital. Because of the delay claimant suffered permanent brain damage. He claimed damages on the ground of negligence on the part of the board.

It was held that British Boxing Board of control was liable. Although the boxers consented to the minor injuries, British Boxing Board of Control owed a duty of care towards the boxers to ensure their safety because the claimant relied on the skill and care of the board in ensuring the safety in a fight.

Player’s Perspective

Participant can be held liable in torts to another participant only if the injury has been caused because of his negligence. Participants have a duty of care towards other participants to prevent foreseeable risk of injury. Match officials also have a duty to look after the safety of the participants.

Participants do not consent to the injuries caused as a result of contact which is out of bound of the game. For such injuries defence of volenti non fit injuria does not apply and they can recover damages from the other party. Coaches and referees also owe a duty towards participants to prevent foreseeable injuries

Viewers Perspective

If the viewer sustained any injury during the match which was not because of player’s or officials negligence, then his claim for damages will not be successful. Defendant can take the defence of volenti non fit injuria. Defendant can contend that the claimant voluntarily agreed to take the risk despite knowing the nature and extent of the risk.

But if the injury was caused because of the negligence of the player or the match officials then the defence of volenti non fit injuria cannot be applied because the viewer presumed that they will not be negligent on their part.

Viewer cannot recover damages if the injury caused to him was because of his own negligence. If he did not follow the instructions then the defendant is not liable to pay compensation.

One such case is Wooldridge v Sumner[2]. In this case claimant was a professional photographer at a horse show. He was not situated behind the barriers where other spectators were housed. During the competition, claimant was injured by one of the horse which was owned by the Defendant, who came galloping at high speed towards him. He brought an action against the defendant on the ground of negligence. He argued that the rider had lost his control over the horse and was going too fast.

It was held that there was no breach of duty on defendant’s part. So claimant was not able to recover compensation.

In this case it was laid down that for the defence of volenti non fit injuria to be applicable there must be consent not only to the risk of injury but also to the breach of duty.

Agar v Canning[3]

In a hockey game, Agar was hit by Canning by a hockey stick on the face. As a result he became unconscious and sustained severe injuries. Agar tried to stop Canning but he hit Canning in his neck. In turn Canning hit Agar on the face due to which he suffered severe injuries.

In this case decision was given in favour of Agar because the circumstances in which the injury was inflicted clearly show the intent to cause serious injury to which the player didn’t give his consent. But the damages were reduced to 1/3 as the provocation was from Agar.

The injuries inflicted in such circumstances could not be said to fall within the ambit of implied consent in which force greater than to that which was consented was applied.

In some cases expectations also play a role. For Example: A spectator went to watch a baseball game. He was sitting in the stands when he was hit by a foul ball. In such case he cannot claim damages as it is well known that ball can hit the person sitting in the stands. While if a person is hit by a foul ball when he was standing in the interior walkway of the baseball stadium can claim damages for the injuries suffered by him because it is not expected that a foul ball can hit in the interior walkway also.

In short, parties owe a duty of care towards each other. If any of the party breach its duty then the party who has breached the duty will be liable to another party for the injuries sustained.  Parties must take reasonable care. Degree of care depends upon the situation. It may require high degree of care in case of dangerous situations while less care in less dangerous situations. But if any of the party has voluntarily consented to take the risk the other party will be absolved from the liability except the injury which is caused by a force more than which was consented and there is no negligence on the part of plaintiff.

[1] [2001] 2 WLR 1256.

[2] [1963] 2 QB 43.

[3] (1965), 54 WWR 302 (MAN QB).