Volenti Non Fit Iniuria

Volenti non fit iniuria (or injuria) (Latin: “to a willing person, injury is not done”) 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 (for example) 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.

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 (decided before the Occupier’s Liability Act was passed), 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 (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 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:

  1. He was acting to rescue persons or property endangered by the defendant’s negligence;
  2. He was 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. 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 (Court of Appeal)
  • Baker v T E 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: 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.

Powered By 360Presence

Project Time Cost Trade-off Project Time Cost Trade-off Project Time Cost Trade-off Project Time Cost Trade-off

By Hassham

Leave a Reply

Your email address will not be published. Required fields are marked *