Volenti Non Fit Injuria: The "Willing" Defense

This tortuous defence is majorly predominant in sports and athletics vis-à-vis athletes’ implied willingness to commit to such threat of injury
Consent is an express or unapplied agreement, approval, permission or acquiescence given voluntarily by a competent person to an act, conduct or cause of action. The defence of consent means that no injury is done to a willing person.

This is so because the general rule of law is that a person who consents cannot claim for injury, he cannot approve and dis approve. He cannot approbate and reprobate.

He who comes to equity or justice must come with clean hands. Therefore  risk voluntarily, deliberately or impliedly undertaken cannot be the basis of a claim.

Nevertheless, as a general rule consent is not binding when it is obtained by coercion, fraud or undue influence.

Thus, volenti non fit injuria means no injury can be done to a willing person. No injury is done to a person who consented. A person who is a volunteer or who abandons his right cannot as general rule turn round and enforce the right, for he voluntarily assumed the risk. Thus, as a general rule, what a person consents to cannot be considered to be an injury. This is the defence of consent.

Therefore where a person consents expressly or impliedly to a conduct and is injured, his consent is done. What a person consents to  be regarded as injury. No act is actionable as a tort at the suit of a person who has expressly or impliedly assented to it.

Again, no person can enforce a right which he has willingly waived or abandoned. No wrong can be done to a person who consents to what is done.

In other words, a person who has willingly consented to the commission of a tort or undertaken the risk of a tortious harm may turn round to sue on it.

The defence of consent is available whenever a plaintiff with full knowledge of the nature and extent of the risk, agreed to incur it.

Consent may be express, such as by spoken words or written contract or unapplied by conduct which points to consent.

1. Deliberate Harm

Deliberate harm is any intentional or willful act or injury which is ordinarily a tort and rendering a tort feasor liable, but for the fact that there is consent by the person at the receiving end. For instance, participants in boxing and wrestling matches are deemed to consent to the inherent risk in the sport.

2. Accidental Harm

Exposure to the risk of accidental or unintentional harm which ordinarily should give rise to a right of action in tort of negligence but for the fact that the sufferer has consented expressly or by implication of his action there is no liability. Instances are the risk one runs in attending potentially sports events such as also avails in surgical operations provided that cannot the operation was done in terms of what was agreed by the parties.

In the case of Chapman V. Ellesmere & Ors (1932) All ER 221 CA, the plaintiff, a horse trainer was a member of a horse racing club. The rules of the club empowered the officers to inquire into the activities of members and to publish it in the club’s in house newspaper known as racing Calendar, upon allegations a race at a meeting held by the Club, the officers satisfied themselves that a drug had been administered to the horse for the purpose of the race in question.

Thereupon they banned the horse from future races. Apart from publishing the plaintiff’s activities in the Club’s Racing Calendar, the defendant officers also communicated the activities to the press and Times published it.

The plaintiff sued for defamation, the Court held that as publication of the Club Officer’s decision in the racing Calendar was consented to by the plaintiff and the publication was in fact a true statement of their decision, the principle of volenti non fit injuria applied and no right of action for damages would lie for that.

The fact that the decision was published in such a way that led to defamatory innuendo was a risk which the plaintiff by consenting to a report of the decision being published in the racing Calendar had elected to run.

However, the publication in the news agencies and claim for damages would lie in respect of that.