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Volenti Non Fit Injuria versus Claim in Negligence Essay Example

  • Category:
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  • Document type:
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  • Level:
    Undergraduate
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Volenti Non Fit Injuria versus Claim in Negligence

Volenti Non Fit Injuria versus Claim in Negligence

Introduction

Volenti non fit injuria is a term used in the legal field to mean; no harm or injury is done on a willing person (this applies to a defendant). It could also be said that it is a consent to run a risk by a plaintiff. Despite of the fact that it is a voluntary agreement there are conditions that are necessary to be fulfilled for a defense case; the claimant or plaintiff should be able to exercise freedom of choice voluntarily and freely. It has to be an agreement between two or more parties. It should be made in full knowledge of the nature and full extent of the risks; the claimant should be fully aware of the nature and extents of the possible risks that they could face (E-law resources, 2013).

Claim in Negligence

Claim in Negligence comes about when there is failure to exercise caution or care that a rational person is expected to in certain circumstances. However, in common law it is used to mean harm caused by carelessness, that is, unintentional harm. Just as in volenti non fit injuria a claimant has conditions to meet to claim negligence;

  1. That there was a duty of care owed to him (James) by the defendant and in this case by the coach and team doctor.

  2. The doctor and the team coach did actually breach the duty of care to him.

  3. James suffered a loss, losing his career as an ice hockey player.

  4. The loss of his career was due to the negligence committed or breach of the duty of care and loss caused should be compensated or awarded.

There are various types of negligence cases; medical negligence, professional negligence, criminal negligence, educational negligence and contributory negligence (Everything Legal, 2011).

James vs. Doctor and Team Coach

James is a young man who is nineteen years old. He is hopeful of pursuing a career in ice hockey and works hard to achieve his goals. Things turn sour when is accused of using a prohibited substance after testing positive during an out of competition test. However, James claims to operate a clean body policy. After being selected to play in a representative team, James signed a contract voluntarily agreeing to a special diet that included vitamins and supplements and because of the friendly attitude he had seen within the team he had total trust in the team coach and the doctor to the extent of not questioning when he is given the supplements by the doctor.

In a bid to try and get justice and prove his innocence, the team coach and doctor refuse to take responsibility and claim that he voluntarily consented to taking the prohibited substance. This can be proven as a volenti non fit injuria because;

  1. James signed the contract voluntarily without being coerced by neither the team coach nor the doctor.

  2. The presence of a contract means there was an agreement that was entered by James and the team coach and the doctor. A contract is a legal agreement binding two or more parties that are regarded as being competent; it can either be expressed or implied (E-law resources, 2013).

However, James can sue them for negligence because they did not fulfill the third condition of total disclosure of the nature and extent of the risks. They did not inform him of the types of supplements and vitamins they were giving him nor did they tell him the extent of the risks that came with the consumption of those supplements and vitamins.

In addition to non disclosure of information, James can sue for negligence claims because;

There was a breach of duty of care on both parties. Duty of care exists because of the nature of their relationships; doctor/patient and coach/team player relationships. These relationships obligate the involved parties to protect and care for each other against risks and injuries that could have been prevented or potential harm that is deemed foreseeable to the other party. The doctor was fully aware of the substance that he was giving James and considering his profession he knew the consequences of partaking of such substances and yet he did not inform James nor did he stop giving him the substance. He intentionally gave him a substance that was going to harm his career or worse James’ health. The team coach was definitely aware of the doctor’s doing or possibly the doctor was acting under his instructions and he did nothing to protect James who was a player in his team and his career. It is therefore evident that there was duty of care and it was further breached by the doctor and team coach. This is proof enough for James to sue them for negligence and he ought to be compensated.

There is also proof of loss to James. Given that James tested positive for using a prohibited substance, he will not be able to achieve his goals of being a professional hockey player. The substance being prohibited has consequences to the users such as not playing for a while or losing credibility to potential employers, worse not playing the game competitively for the rest of his life. The loss suffered by James is due to negligence by the team coach and the doctor. The doctor and the team coach kept giving James a substance that was likely harmful to his career or health and they did nothing to protect him against the loss he was likely to encounter. If it were not for the actions of the doctor and the team coach the probability of James fulfilling his ambitions in ice hockey would have been very high. Therefore, one can conclude that because of the breach of care by the team coach and the doctor, James will lose a chance to pursue a career in ice hockey (Major Injury Law, 2013).

From the arguments brought forward, I can advice James to sue the team coach and the doctor for negligence as there is enough proof to prove duty of care, breach of duty of care by the doctor and team coach and that there was loss or damage due to the breach of duty of care by the two defendants. Although there was a contract that was signed by James and voluntarily for that matter the accused did not give full disclosure of information thus not giving James a chance to make proper decisions regarding his career. If he had been aware of the substance he was being given and its implications and still signed the contract, James would have been totally liable for his actions and the defense of volenti non fit injuria could have been upheld.

Due to the fact that they did not disclose the entire truth to James their response of volenti non fit injuria will not be enough and therefore they will have to compensate James for the loss incurred due their breach of duty of care. The defendants could have been spared just by proof of one element of volenti non fit injuria but if the plaintiff can prove that there existed duty of care and also find a loophole in their defense then the plaintiff has a stronger case against the defendants and has a right to monetary or financial compensation. James can find loopholes in their defense and further prove that they were negligent towards him and his career (Everything Legal, 2011).

Conclusion

This is a case of professional negligence and to some extent a criminal negligence. This is because, James entrusted his career to the team coach and the doctor and trusted their professional opinions without questions yet they behaved in a way that their skills were not appropriate and as expected of them for the specific role. Also the reckless actions of the team coach and the doctor could have put James’ life in danger even though it did not happen which is tantamount to criminal negligence (Everything Legal, 2011).

In conclusion, James ought to find the right solicitor or lawyer to represent him as it is clearly a case of negligence. This will result in him being compensated whether physically, mentally or financially by the negligent parties. Practicing care and being accountable is very important as it protects many people from potential and foreseeable harm to other people or else they may become answerable to the law.

List of References

Jaffey, A. J., 1985. The Cambridge Law Journal. Volenti non fit injuria. Retrieved on September 27th, 2013 from <http://www.jstor.org/discover/10.2307/4506702?uid=3738336&uid=2&uid=4&sid=21102687917927>

Compensation Culture, 2000-2013. Volenti non fit injuria- A key Defense. Retrieved on September 27th, 2013 from <
http://www.compensationculture.co.uk/volenti-non-fit-injuria-a-key-defence.html >

E-law resources, 2013. Volenti non fit injuria. Retrieved on September 27th, 2013 from <
http://www.e-lawresources.co.uk/Volenti-non-fit-injuria.php >

Major Injury Law, 2013. Negligence Claims. Retrieved on September 27th, 2013 from <
http://www.majorinjurylaw.com/negligence-claims.htm >

Everything Legal, 2011. Negligence Claims. Retrieved on September 27th, 2013 from < http://claims-negligence.co.uk/ >

Slideshare, 2009. Claims of Negligence. Retrieved on September 27th, 2013 from <
http://www.slideshare.net/dgclip1981/claims-of-negligence >

Bits of Law, 2013. Absolute Defence: Consent. Retrieved on September 27th, 2013 from <
http://www.bitsoflaw.org/tort/negligence/revision-note/degree/absolute-defence-consent-volenti-non-fit-injuria >

Merriam-Webster, 2013. Contract. Retrieved on September 27th, 2013 from <
http://www.merriam-webster.com/dictionary/contract >

WebFinance Inc, 2013. Contract. Retrieved on September 27th, 2013 from <
http://www.businessdictionary.com/definition/contract.html >

Counsel Direct Inc., 2000. Frequently Asked Questions About Negligence.
Retrieved on September 27th, 2013 from <
http://www.freecasereview.com/FAQS/negligencefaqs.ht>

Elaws, 1999. Rebeetsweng vs Botswana Motor Vehicle Insurance Fund. Retrieved on September 27th, 2013 from <
http://www.elaws.gov.bw/desplaylrpage.php?id=594&dsp=2 >

Raedwald, 2010. Volenti non fit injuria. Retrieved on September 27th, 2013 from < http://raedwald.blogspot.com/ >

Gyani, M., 2013. Volenti non fit Injuria. Retrieved on September 27th, 2013 from <
http://www.gyancentral.com/forum/law-preparation/legal-aptitude-preparation/7891-volenti-non-fit-injuria.html >

WiseGeek, 2003-2013. In Legal Terms, What Is Volenti Non Fit Injuria?
Retrieved on September 27th, 2013 from <
http://www.wisegeek.com/in-legal-terms-what-is-volenti- non-fit-injuria.htm >

Law-Pedia, 2011-2012. Volenti non fit Injuria. Retrieved on September 27th, 2013 from <
http://www.law-pedia.com/volenti-non-fit-injuria.htm >