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  • Read the following passage and answer the question Volenti non fit injuria-It basically means the voluntary assumption of risk. When a person consents to the infliction o

Read the following passage and answer the question

Volenti non fit injuria-It basically means the voluntary assumption of risk. When a person consents to the infliction of harm upon himself, he has no remedy for that in tort making this an excellent defence for the defendant against tortuous liability. Consent forms an essential part of this doctrine- whether it is implied or expressed. It must not be obtained fraudulently (as held in R. v. Williams).

This doctrine is based on the idea that “no man can enforce a right that he himself has waived or voluntarily abandoned”. However, the harm caused must not be beyond what is consented to. In case, a plaintiff voluntarily suffers some harm, he has no remedy for that under the law of tort and he is not allowed to complain about the same. The reason behind this defence is that no one can enforce a right that he has voluntarily abandoned or waived. Consent to suffer harm can be express or implied. 

The consent must be free, For this defence to be available it is important to show that the consent of the plaintiff was freely given. Consent obtained by fraud is not real consent and does not serve as a good defence. Consent obtained under compulsion There is no consent when someone consents to an act without free will or under some compulsion. It is also applicable in cases where the person giving consent does not have full freedom to decide. This situation generally arises in a master-servant relationship where the servant is compelled to do everything that his master asks him to do. The defense of Volenti non fit injuria is also not applicable in cases of negligence as the basic constituent of the doctrine is consent- whether implied or expressed. But, if due to some act of the defendant, the plaintiff is not left with ample time to choose to provide consent or not, there can be no agreement to suffer harm from the said act.

Question

Stephy is the plaintiff her paramour Jojo had infected her with a venereal disease. Stephy brought a suit against him.

 

 

Option: 1

 Jojo is not liable because he did not commit any fraud

 


Option: 2

Jojo is liable for committing an immoral act

 


Option: 3

Stephy cannot sue Jojo as she was not chaste

 


Option: 4

The action will survive

 


Answers (1)

best_answer

In the case of Hegarty v. Shine, Court observed that mere concealment of facts is not considered to be a fraud to vitiate consent. Hence, the action will fail because mere lack of disclosure of facts does not amount to fraud based on the principle ex turpi causa non oritur actio i.e. no action arises from an immoral cause.

 

 

Posted by

himanshu.meshram

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