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Volenti non fit injuria

 

Volenti non fit injuria is a defence of limited application in tort law. A direct translation of the latin phrase volenti non fit injuria is, 'to one who volunteers, no harm is done'. Where the defence of volenti applies it operates as a complete defence absolving the Defendant of all liability. It is often stated that the Claimant consents to the the risk of harm, however, the defence of volenti is much more limited in its application and should not be confused with the defence of consent in relation to trespass.   The defence of volenti non fit injuria requires a freely entered and voluntary agreement by the Claimant, in full knowledge of the circumstances, to absolve the Defendant of all legal consequences of their actions. There is a considerable overlap with contributory negligence and since the introduction of the Law Reform (Contributory Negligence) Act 1945, the courts have been less willing to make a finding of volenti preferring to apportion loss between the parties rather than taking an all or nothing approach.
 
 
The requirements of the defence are thus:
 
 
 
1. A voluntary
 
2. Agreement
 
3. Made in full knowledge of the nature and extent of the risk.
 
 
 
 
1. Voluntary
 
 
The agreement must be voluntary and freely entered for the defence of volenti non fit injuria to succeed. If the Claimant is not in a position to exercise free choice, the defence will not succeed. This element is most commonly seen in relation to employment relationships, rescuers and suicide.
 
 
 
 
 
 
2. Agreement
 
 
The second requirement for the defence of volenti non fit injuria is agreement. The agreement may be express or implied. An example of an express agreement would be where there exists a contractual term or notice. However, this would be subject to the controls of s.2 of the Unfair Contract Terms Act 1977. An implied agreement may exist where the Claimant's action in the circumstances demonstrates a willingness to accept not only the physical risks but also the legal risks. 
 
 
 
 
 
Lord Denning:

    "Knowledge of the risk of injury is not enough. Nothing will suffice short of an agreement to waive any claim for negligence. The plaintiff must agree expressly or impliedly to waive any claim for any injury that may befall him due to the lack of reasonable care by the defendant: or more accurately due to the failure by the defendant to measure up to the duty of care which the law requires of him".
 
White v Blackmore [1972] 3 WLR 296  Case summary
 
 
 
 
Lord Watson:

    "In its application to questions between the employer and the employed, the maxim as now used generally imports that the workman had either expressly or by implication agreed to take upon himself the risks attendant upon the particular work which he was engaged to perform, and from which he has suffered injury. The question which has most frequently to be considered is not whether he voluntarily and rashly exposed himself to injury, but whether he agreed that, if injury should befall him, the risk was to be his and not his masters.
 
 
 
3. Knowledge
 
 
The Claimant must have knowledge of the full nature and extent of the risk that they ran:
 
 
 
 
 
 
 
The test for this is subjective and not objective and in the context of an intoxicated Claimant, the question is whether the Claimant was so intoxicated that he was incapable of appreciating the nature of the risk:
 
 
 
 
 
 
 
 
 


 
 
 
 
Volenti non fit injuria in employment relationships
 
 
As long ago as 1891, the House of Lords recognised that an employee who complained of unsafe practice, but nevertheless continued to work could not truly be said to have voluntarily agreed to waive their legal rights:
 
 
 
This position of the law was affirmed in:
 
 
 
Bowater v Rowley Regis Corporation [1944] KB 476  Case summary
 
 
 
As a matter of public policy, the defence is not generally available where an employer is in breach of statutory duty, however limited exceptions exist to this:
 
 
 
 
 
 
 
 
Volenti non fit injuria - rescuers
 
 
 
A rescuer is not regarded as having freely and voluntarily accepted the risk:
 
 
 
Baker v TE Hopkins & Son Ltd [1959] 1 WLR 966 Case summary
 
 
 
This applies to professional rescuers:
 
 
Haynes v Harwood [1935] 1 KB 146 Case summary 
 
 
 
Ogwo v Taylor [1987] 3 WLR 1145 Case summary
 
 
 
If however, there is no real need to rescue, the Claimant may be held volens:
 
 
 
Cutler v United Dairies [1933] 2 KB 297 Case summary
 
 
 
 
 
Volenti non fit injuria - Suicide
 
 
 
 
 
Where the Claimant commits suicide, originally it was held that they would be treated as volens if they were of sound mind, but if they were of unsound mind the defence of volenti non fit injuria would have no application:
 
 
 
 
 
 
 
However, this distinction was abandoned as it would essentially deprive the duty of substance:
 
 
 
 
 
 
 
 
 
 
 
 
 
Volenti non fit injuria in context of sporting events
 
 
 
A participant in sporting events is taken to consent to the risk of injury which occurs in the course of the ordinary performance of the sport.
 
 
Condon v Basi [1985] 1 WLR 866  Case summary
 
 
 
This was also taken to apply to spectators at sporting events:
 
 
 
 
This principle has also been held to apply outside of sports, to a high spirited 'game':
 
 
 
 
Blake v Galloway [2004] 3 All ER 315  Case summary

 
 
 
Volenti non fit injuria in relation to drunk drivers
 
 
 
 
 
In Dann v Hamilton [1939]  1 KB 509 (Case summary) it was held that a person accepting a lift from a drunk driver was not to be treated as volens unless the drunkenness was so extreme and so glaring that accepting a lift would be equivalent of to intermeddling with an unexploded bomb or walking on the edge of an unfenced cliff.
 
An example of where this was successfully invoked can be seen:
 
 
 
 
 
 
The impact of s.148(3) of the Road Traffic Act 1972 (Now s.149(3) RTA 1988) was considered in Pitts v Hunt and it was held that it precluded the application of the defence of volenti in circumstances where a person accepted a lift from an intoxicated driver in circumstances where the driver was subject to compulsory insurance. 
 
 
 
 
 
Pitts v Hunt [1990] 3 All ER 344  Case summary
 
 
 
 
 
Volenti non fit injuria - Occupiers Liability
 
 
 
 
 
 S. 2(5) Occupiers' Liability Act 1957 and s. 1(6) of the Occupiers' Liability Act 1984 provide that occupiers owe no duty in respect to risks willingly accepted by that person as his. It appears that there is no need to establish an agreement.
 
For an application of the Scottish equivalent provision see:
 
 
 
 
 

 
 
Volenti non fit injuria