Volenti non fit iniuria is a common law doctrine which states that if someone
willingly places themselves in a position where harm might result,
knowing that some degree of harm might result, they are not able to bring a
claim against the other party in tort or delict. Volenti only applies to the risk
which a reasonable person would consider them as having assumed by their actions;
thus a boxer consents to being hit, and to the injuries that might be expected
from being hit, but does not consent to his opponent striking him with an iron
bar, or punching him outside the usual terms of boxing. Volenti is also known
as a "voluntary assumption of risk." Volenti is sometimes described as the
plaintiff "consenting to run a risk." In this context, volenti can be
distinguished from legal consent in that the latter can prevent some torts
arising in the first place. For example, consent to a medical procedure prevents
the procedure from being a trespass to the person, or consenting to a person
visiting your land prevents them from being a trespasser.
English Law In English tort law, volenti is a full
defence, i.e. it fully exonerates the defendant who succeeds in proving it.
The defence has two main elements: The claimant was fully aware of all the
risks involved, including both the nature and the extent of the risk; and
The claimant expressly or implicitly consented to waive all claims for
damages. Knowledge of the risk is not sufficient: sciens non est volens.
Consent must be free and voluntary, i.e. not brought about by duress. If the
relationship between the claimant and defendant is such that there is doubt as
to whether the consent was truly voluntary, such as the relationship
between workers and employers, the courts are unlikely to find volenti.
It is not easy for a defendant to show both elements and therefore comparative
negligence usually constitutes a better defence in many cases. Note however that
comparative negligence is a partial defence, i.e. it usually leads to a
reduction of payable damages rather than a full exclusion of liability. Also, the
person consenting to an act may not always be negligent: a bungee jumper may
take the greatest possible care not to be injured, and if he is, the defence
available to the organiser of the event will be volenti, not comparative
negligence. Consent to medical treatment or consent
to risky sports on the part of the claimant excludes liability in tort
where that consent is informed consent. United States
The similar principle in US law is known as assumption of risk.
Canada In Canada, the "volenti" principles
applies in much the same way as under English law. The leading Canadian cases
on point are Dube v. Labar, [1986] 1 SCR 649 and Hall v. Hebert, [1993] 2 SCR
159. Cases
= Trespassers = The Occupiers' Liability Act 1984
requires all owners of property to take reasonable steps to make their premises
safe for anyone who enters them, even those who enter as trespassers, if they
are aware of a risk on the premises. However, the doctrine of volenti has
been applied to cases where a trespasser exposed themselves deliberately to risk:
Titchener v British Railways Board [1983] 1 WLR 1427
Ratcliff v McConnell [1997] EWCA Civ 2679
Tomlinson v Congleton Borough Council [2003] UKHL 47
In the first case, a girl who had trespassed on the railway was hit by a
train. The House of Lords ruled that the fencing around the railway was adequate,
and the girl had voluntarily accepted the risk by breaking through it. In the
second case, a student who had broken into a closed swimming-pool and injured
himself by diving into the shallow end was similarly held responsible for his
own injuries. The third case involved a man who dived into a shallow lake,
despite the presence of "No Swimming" signs; the signs were held to be an
adequate warning. = Drunk drivers =
The defence of volenti is now excluded by statute where a passenger was injured
as a result of agreeing to take a lift from a drunk car driver. However, in a
well-known case of Morris v Murray [1990] 3 All ER 801, volenti was held to
apply to a drunk passenger, who accepted a lift from a drunk pilot. The pilot
died in the resulting crash and the passenger who was injured, sued his
estate. Although he drove the pilot to the airfield and helped him start the
engine and tune the radio, he argued that he did not freely and voluntarily
consent to the risk involved in flying. The Court of Appeal held that there was
consent: the passenger was not so drunk as to fail to realise the risks of
taking a lift from a drunk pilot, and his actions leading up to the flight
demonstrated that he voluntarily accepted those risks.
= Rescuers = For reasons of policy, the courts are
reluctant to criticise the behaviour of rescuers. A rescuer would not be
considered volens if: He was acting to rescue persons or
property endangered by the defendant’s negligence;
He was acting under a compelling legal, social or moral duty; and
His conduct in all circumstances was reasonable and a natural consequence of
the defendant’s negligence. An example of such a case is Haynes v.
Harwood [1935] 1 KB 146, in which a policeman was able to recover damages
after being injured restraining a bolting horse: he had a legal and moral
duty to protect life and property and as such was not held to have been acting as
a volunteer or giving willing consent to the action - it was his contractual
obligation as an employee and police officer and moral necessity as a human
being to do so, and not a wish to volunteer, which caused him to act. In
this case the court of appeal affirmed a judgement in favor of a policeman who
had been injured in stopping some runaway horses with a van in a crowded
street. The policeman who was on duty, not in the street, but in a police
station, darted out and was crushed by one of the horses which fell upon him
while he was stopping it. It was also held that the rescuer's act need not be
instinctive in order to be reasonable, for one who deliberately encounters
peril after reflection may often be acting more reasonably than one who acts
upon impulse. By contrast, in Cutler v. United Dairies
[1933] 2 KB 297 a man who was injured trying to restrain a horse was held to
be volens because in that case no human life was in immediate danger and he was
not under any compelling duty to act. = Unsuccessful attempts to rely on
volenti = Examples of cases where a reliance on
volenti was unsuccessful include: Nettleship v. Weston [1971] 3 All ER 581
Baker v T E Hopkins & Son Ltd [1959] 3 All ER 225.
In the first case, the plaintiff was an instructor who was injured while
teaching the defendant to drive. The defence of volenti failed: that is,
because the plaintiff specifically inquired if the defendant's insurance
covered him before agreeing to teach. In the second case, a doctor went in to try
to rescue workmen who were caught in a well after having succumbed to noxious
fumes. He did so despite being warned of the danger and told to wait until the
fire brigade arrived. The doctor and the workmen all died. The court held that it
would be "unseemly" to hold the doctor to have consented to the risk simply
because he acted promptly and bravely in an attempt to save lives.
Generally courts are reluctant to recognise voluntary assumption of risk.
An example of a court reluctant to find a voluntary assumption of risk includes
Carey v Lake Macquarie City Council [2007] NSWCA 4. Instead the conduct
amounted to contributory negligence, which is not a complete defence.
See also Acts of the claimant
Assumption of risk Consent
Ex turpi causa non oritur actio List of Latin phrases
Sciens Volens
References