Res Ipsa Loquitor

Mahima Gherani

In the common law, “Res Ipsa Loquitor”, a Latin word which means the thing speaks for itself. Prima facie it appears to be a simple and easy maxim to understand and apply. Application of Res Ipsa Loquitor shifts the burden of proof on the defendant. Generally, in any case it is the plaintiff who has to provide the evidence to prove the defendants acts.

The expression Res Ipsa Loquitor is not a doctrine but a mode of inferential reasoning applying to incidents of an unknown cause. The legal maxim was first formulated by Baron Pollock in the 1863 English case Byrne v Boadle, where Bryne was struck by a barrel of flour falling from a second story window. The court’s presumption was that a barrel of flour falling out of a second storey window is itself sufficient evidence of negligence.

It is not a cause of action but rather a rule of evidence. Res Ipsa Loquitor is usually used when there is no direct evidence of the defendant’s negligence. The facts presented in the court must satisfy three basic requirements i.e. inference of negligence, exclusive control by the defendant and freedom from contributory negligence.

Once the court decides that the facts of a particular case warrant the application of res ipsa, it instructs the jury to carry on the basic principles and it is the function of the jury to decide the credibility and weight of the inference to be drawn from the facts. Everything depends on the facts of a particular place.

This test finds its applicability in accident and medical cases, in case of offences which are unintended and the commission of the offence itself was not known, in matters where all the procedures have not been followed and other cases of negligence.

This rule cannot be applied where reasonable care has been taken and what has happened is beyond the ordinary control of the defendant. This maxim is of much relevance today considering the globalisation and the increasing cases of absolute liability which can be witnessed in the case of M.C.Mehta v. Union of India and many recent cases.

Volenti non fit injuria

Mahima Gherani

Volenti non fit injuria is a Latin term which means “to one who is willing, no harm is done.” This doctrine holds that a person who knowingly and willingly puts himself in a dangerous situation cannot later on sue for any resulting injuries. Volenti non fit injuria is a defence in tort. If a person engages in an event accepting and being totally aware of the risks inherent in that event, then such person cannot later complain of, or seek compensation for an injury suffered during the event.

For example you invite somebody to your house you cannot sue him for trespass. For the defence to be valid it is necessary that the consent was obtained voluntarily by the plaintiff and there was no undue influence, misrepresentation or fraud involved. In the case of R v. Williams the defendant was a singing coach. He told one of his pupils that he was performing an act to open her air passages to improve her singing but he was actually having sexual intercourse with her. It was held that her consent was vitiated by fraud. This case has been used to illustrate the validity of a consent which has been obtained by unfair means.

In Lakshmi Rajan v. Malar Hospital (1998), a woman consented for a surgery to remove a lump from her breast. But the hospital removed her uterus without any genuine reason. It was held that removing of her uterus exceeded beyond what she had consented for and thus the hospital was held liable for the deficiency of service. In another instance, if a servant was compelled by the master to do a certain task despite his protests, and if he is injured while doing it, the master cannot take the defence of volenti non fit injuria because the consent was not free. For the defence to be valid it is necessary that the consent was obtained voluntarily by the plaintiff and there was no undue influence, misrepresentation or fraud involved. The defence of volenti non fit injuria requires a freely entered and voluntary agreement by the claimant, in full knowledge of the circumstances, to absolve the defendant of all legal consequences of their actions.

For the defence to be available, the act causing the harm must go beyond the limit of what has been consented. The two essentials that are to be satisfied are

  • The injured knew that there was a risk in the act
  • Knowingly there was a risk that he invited

In Khimji V. Tanga Mombasa Transport Co. Ltd the plaintiffs were the personal representatives of a deceased who met his death while travelling as a passenger in the defendant’s bus. The bus reached a place where road was flooded and it was risky to cross. The driver was reluctant to continue the journey but some of the passengers, including the deceased, insisted that the journey should be continued. The driver eventually yielded and continued with some of the passengers, including the deceased. The bus drowned with all the passengers aboard. It was held that the plaintiff’s action against the defendants could not be maintained because the deceased knew the risk involved and assumed it voluntarily and so the defence of volenti non fit injuria rightly applied.

Also the plaintiff should have complete knowledge of the full nature and extent of risk involved before giving consent. In Woolridge v. Sumner (1963), the plaintiff a photographer was taking photographs at a horse show, during which one horse rounded the bend was too fast. As the horse galloped furiously, the plaintiff was frightened and fell in the course. He was seriously injured, and it was held that the defendants had taken proper care in closing the course and the plaintiff, by being in the show, agreed to take the risk of such an accident, so the defendants were not liable and this defence cannot apply.

So, the conventional understanding about the plea of volenti non fit injuria is that it is an affirmative defence to liability arising in the tort of negligence.

Volenti non fit injuria

Adyasree Prakriti Sivakumar

Volenti non fit injuria“, is a Latin maxim, on literal translation, means To a willing person, injury is not done. This is a common law doctrine which states if someone is willingly places themselves in a position where harm might result, the party so placed cannot claim damages or compensation. This doctrine is used in the Law of Torts as a defense to prove that the wrong wasn’t committed by the sued party. The Law of Tort is a branch of law that mainly deals with civil wrongs. Civil wrongs are wings that cause a certain harm or injury to a person due to the actions of another. “Volenti” is also known as “Voluntary assumption of risk”.  It also sometimes described as the plaintiff “consenting to a risk”. The consent may be implied, that is through actions or conduct, or expressed, that is through written agreements or official documents with a proper witness or an attestor.

Yet, there continues to exist a distinction between Volenti and Legal Consent. For example, of a person allows his friend or a known person into his house or land or house then, that persons cannot claim damages or compensation for such action as he had legally consented to the entry without stopping them at the entrance. Such a claim for trespass is invalid due to the legal consent of the plaintiff.

In English tort law, Volenti is a full defense, that is it releases the defaulter from the duty or obligations, provided that the defaulter succeeds in proving that the action was Voluntary and not involuntary or coercive. The defense has two main elements:

  1. The claimant was fully aware of all the risks including both the nature and the extent of the risk; and
  2. The claimant expressly (by statement) or implicitly (by actions) consented to waive all claims for damages.

Another point that has to be noted here is that, mere knowledge of the risk is not sufficient. Thus, giving rise to another maxim, sciens non est volens, which means that, “Knowing is not volunteering”. The consent must be free, that is without any undue influence, coercion or stress by the defendant on the claimant. If there is a doubt on the relationship, as to if the consent was free or not, then the courts are unlikely to hold it Volenti or voluntary. The best example for such a relationship is that of employers and workers/ employees. In their relationship there is always a pressure on the employee to work as per the standards of the company. And if the employee doesn’t carry out the job properly or complains about the employer regards certain issues, he is immediately threatened of his job and is made silent. In such cases the defense of Volenti non fit injuria, cannot be taken.

Consent to medic, treatment or consent to risky sports on the part of the claimant excludes liability on tort where that consent is informed consent.

The ratio of this maxim is basically to protect the defendant in many a cases, with certain exceptions.