Potpourri

Quick Referencer for Judicial Service

Q. ‘X’ and his wife ‘Y’ were in the shop of ‘Z’ as customers. The roof of the shop was being repaired. In the mean time due to the negligence of defendant’s servant some glass pieces fell on ‘X’ from the way of sky light. ‘Y’ seeing her husband was in danger tried to save him. In so doing her own leg was injured. ‘Y’ sues ‘Z’ for damages. ‘Z’ pleads ‘Volenti non fit injuria’. Will ‘Z’ succeed in his defence? Refer case law on the point.
U.P. Civil Services Exam, 1991

Ans: No, ‘Z’ will not succeed in his defence of ‘Volenti non fit injuria’ – Brandon v. Osborne Garret & Co., (1924) 1 KB 548.
Reasons: One of the general defences in law of torts is ‘Volenti non fit injuria’. (harm suffered with consent is no harm and not actionable).
But one of the exceptions of the maxim ‘Volenti non fit injuria’ is ‘Rescue Cases’. Hence, the maxim does not apply in cases of rescue.

Facts of this problem are similar to the famous case of Brandon v. Osborne Garret & Co. In this case, it was held that plaintiff is entitled to recover damages because the plaintiff sustained injury in rescuing her husband and the maxim ‘Volenti non fit injuria’ does not apply in ‘Rescue Cases’.
On the basis of above discussions it can be said that in the given problem ‘Z’ will not succeed in his defence of ‘Volenti non fit injuria’ because ‘Y’ sustained injury in rescuing her husband from danger and the maxim ‘Volenti non fit injuria’ does not apply in ‘Rescue Cases’.
-Kishor Prasad

About the author

Editor LU

Leave a Comment