Definitions

injuria

Volenti non fit injuria

Volenti non fit injuria (Latin: "to a willing person, no injury is done" or "no injury is done to a person who consents") is a common law doctrine which means that if someone willingly places themselves in a position where harm might result, knowing that some degree of harm might result, they cannot then sue if harm does in fact happen. The '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 is not a 'volenti' if (for example) his opponent should swing an iron bar at him, or punch him outside the usual terms of boxing. Volenti is also known as a "voluntary assumption of risk".

'Volenti' (from which, indirectly, the English word 'volunteer' is derived) 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).

Volenti in 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:

  1. The claimant was fully aware of all the risks involved, including both the nature and the extent of the risk; and
  2. The claimant expressly (by his statement) or impliedly (by his actions) consented to waive all claims for damages. His knowledge of the risk is not sufficient: sciens non est volens ("knowing is not volunteering"). His 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 contributory negligence usually constitutes a better defence in many cases. Note however that contributory 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 contributory negligence.

For the similar principle in American law, see Assumption of risk

Cases

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 (Court of Appeal), 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 (which was closed at the time) 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 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 the rescuers. A rescuer would not be considered volens if:

  1. He was acting to rescue persons or property endangered by the defendant’s negligence;
  2. He was were acting under a compelling legal, social or moral duty; and
  3. 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.

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 are Nettleship v. Weston [1971] 3 All ER 581 (Court of Appeal) and Baker v. TE Hopkins & Son Ltd [1959] 3 All ER 225 (Court of Appeal). In the first case, the plaintiff was an instructor who was injured while teaching the defendant to drive. The defence of volenti failed i.a. 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.

See also

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