Consent as a defence
The defense of consent is available only when it is shown that the consent given by the plaintiff was free, that is without any fraud, compulsion or coercion. Not only that, but the act done by the defendant should also be the same for which consent is given. For example, an opposed man auto meter reader has implied consent of the occupier of the house to go up to a particular place to deliver letters or take reading as the case may be. But if he goes beyond that limit and it is a bedroom or kitchen without the permission of the resident, he will be liable for trespass.
In the case of minors, the consent of parents or guardian’s will be admissible as a good defense. Thus where the Guardian of a child has consented to his child’s operation by a surgeon, the surgeon cannot be sued for operating the child without his consent.
Consent by fraud
Where the act of the defendant is in itself unlawful and prohibited by law, no amount of consent can convert such an act into a lawful act and therefore, the defendant will be liable despite the consent of the plaintiff. This is illustrated by the case of R versus Williams, wearing the accused, music teacher was held guilty of rape when he sought consent of a 16 year old minor girl for sexual intercourse by making her believe that such an act was in fact an operation which was necessary to improve her voice.
The court held that the act of sexual intercourse being unlawful and a punishable offence, would not become a lawful act on the ground that the girl had consented to it and the accused had not exerted any pressure on her to give her consent.
Consent given under compulsion is no defense
Consent is said to be given under compulsion when the plaintiff is placed in a situation to accept the work which he knows to be risky and dangerous, and would have normally not agreed to undertake it but for the compelling reasons. For example, it generally so happens under the master servant relationship that the servant has sometimes given consent to work, because its refusal would mean his losing the job. Therefore, he has to choose between the two evils that is either to consent to a risk or to be prepared to lose the job.
The case of Bowater versus Rowley Regis Corporation, is an illustration burning consent given by the plaintiff under compulsion was held to be no consent and therefore the defendant could not escape liability. In this case a horse driven cart driver was asked by the defendant drive with a horse which the driver knew to have bolted many a time thrill stop therefore he protested to take the host for driving the cart but had to ultimately yield to the wishes of the master lattice defendant in order to remain in job. The horse, as contemplated, bolted thereby injuring the plaintiff. Defending raised the defense of plaintiff’s consent which the court held was not acceptable as it was tainted by compulsion and the risk of being thrown out of job.
Mere knowledge is not consent
It must be pointed out that the maxim is volenti non fit injuria and not scienti non fit injuria. That is to say, mere having knowledge is not consent. In other words, having knowledge about a risk or danger is one thing well consented to such risk or danger is quite another. For example, the gangmen working on a railway track have the knowledge about the general risk involved in their work due to frequent movement of trains from either sides but this does not mean that they have consented to be knocked down by an approaching train. As rightly pointed out by Winfield, mere having knowledge about the possible harm does not imply consent to suffer such harm.
Distinction between volenti and contributory negligence
In the context of consent as a defense, it has been distinguished from contributory negligence which is not a defense but only helps in mitigating the quantum of damages. the main points of difference between the two are as follows–
(1) Volenti, that is consent of the plaintiff is a complete defense to absorb the defendant from liability but contributed negligence of the plaintiff reduces liability of the defendant in proportion to farmers fault as provided under the Law Reform Act, 1945
(2) In volenti non fit injuria, although the plaintiff consents to the risk or danger but at the same time takes care for his safety but contributory negligence implies negligence of both, defendant and plaintiff.
(3) In volenti, the plaintiff is well aware of the nature and extent of the danger which he is going to undertake but it is not in the case of contributory negligence though he ought to have been aware thereof.
(4) Volenti, is no difference in case of breach of statutory duty, but the defendant can raise the plea of contributory negligence of the plaintiff in his defense.
(5) In volenti, plaintiff suffers injury or damages despite taking all care and precautions against their inherent danger involved in the act to which he consents, but in case of contributory negligence, the damage is caused to the plaintiff due to his own negligence along with that of the defendants negligence.
Exceptions
As a general rule, consent of the plaintiff completely deprives him of his claim for damages against the defendant. But there are certain circumstances under which the plaintiff can recover damages from the defendant despite his willful indulgence in the wrong cost to him. Where the act itself is unlawful and prohibited by law, no amount of consent can make it lawful and the defendant will be held liable despite plaintiff’s consent for the act. A person guilty of a breach of statutory duty towards another cannot raise the defense of the latter’s consent.
For example, where a statute lays down a duty on a factory owner to defend the dangerous machinery or to provide adequate appliances to prevent metal dust being inhaled by the workers or to avoid use of certain explosive devices etc. He will be liable for breach of such statutory duty and cannot leave the defense of plaintiff’s consent.
REFERENCE
1. V.N. PARANJAPE LAW OF TORTS
About the author –
This article is written by Fiza Hussain, second year BBA LLB student at School Of Legal Studies, Cochin University of Science and Technology, Cochin
