Introduction
The volenti maxim has has had a colurful past. In one olde case (Wilson v Glossop), a husband sued his wife for damages as a result of her alleged adultery. The claim was barred as the evidence revealed that he had connived in the adultery. In another case, in an era when spring-guns were not illegal, a man was hurt by the gun after having been warned by the landowner of it. The maxim prevented his claim for damages ( Ilott v Wilkes). Similarly, a person who crosses a barrier into a leopard cage to retrieve a smouldering cigarette, and gets mauled by the leopard, was prevented from suing based on the volenti maxim (Sylvester v Chapman). In a 1986 Supreme Court of Canada decision, usti!e "stey wrote !(")olenti will arise only where the circumstances circumstances are such that it is clear that the plainti#, $nowing of the virtually certain ris$ of harm, in essence bargained away his right to sue for in%uries incurred as a result of any negligence on the defendant&s part. !The acceptance of ris$ may be express express or may arise by necessary implication from the conduct of the parties, but it will arise, in cases such as the present, only where there there can truly be said s aid to be an understanding on the part of both parties that the defendant assumed no responsibility to ta$e due care for the safety of the plainti#, and that the plainti# did not expect him to. !'ommon sense dictates that only rarely will a plainti# genuinely consent to accept the ris$ of the defendant&s negligence. !Glanville Williams wrote that &the defence must be restrictively restrictively construed.... In almost every negligence action of modern times where the defence of volens has been raised it has failed. This is because the cases in which a person truly consents to run the ris$ of another&s negligence are altogether exceptional.&! exceptional.&!
#olenti non $t in%uria is a legal principle in which one who $nowingly and voluntarily consents to and ta$es on a ris$ (for example, by participating in a potentially dangerous sport, such as motor racing or s$iing) cannot as$ for
compensation for the damage or in%ury resulting from it. It is a basically a defence in tort law. direct translation of the atin phrase volenti non ft injuria is, &to one who volunteers, no harm is done&. *here the defence of volenti applies it operates as a complete defence absolving the +efendant of all liability. It is often stated that the 'laimant consents to the ris$ of harm, however, the defen!e 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 ft injuria reuires a freely entered and voluntary a&reement 'y the Claimant in full knoled&e of the !ir!umstan!es to a'solve the *efendant of all le&al !onse+uen!es of their a!tions.
,he re+uirements of the defen!e are thus-
1. !onsent must 'e &iven freely or voluntary-/ The agreement must be voluntary and freely entered for the defence of volenti non ft injuria to succeed. If the 'laimant 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.
0. &reement- Consent must not have 'een &iven to an ille&al a!t The second reuirement for the defence of volenti non ft injuria is agreement. The agreement may be express or implied. n example of an express agreement would be where there exists a contractual term or notice. owever, this would be sub%ect to the controls of s. of the /nfair 'ontract Terms ct 0122. n implied agreement may exist where the 'laimant&s action in the circumstances demonstrates a willingness to accept not only the physical ris$s but also the legal ris$s. Smith v Charles Baker & Sons 304105 ' 67
. 2noled&e-/ 2noled&e of risk is not the same thin& as !onsent to run the risk-/ The 'laimant must have $nowledge of the full nature and extent of the ris$ that they ran *ooldridge v Sumner 8 nor 301965 :; <6
In Case of employment relationships The ouse of ords recogni=ed that an employee who complained of unsafe practice, but nevertheless continued to wor$ could not truly be said to have voluntarily agreed to waive their legal rights
In Case of res!uers rescuer is not regarded as having freely and voluntarily accepted the ris$. If however, there is no real need to rescue, the 'laimant may be held volens. >or reasons of policy, the courts are reluctant to critici=e the behavior of rescuers. rescuer would not be considered volens if 0. e was acting to rescue persons or property endangered by the defendant?s negligence@ . e was acting under a compelling legal, social or moral duty@ and 6. is conduct in all circumstances was reasonable and a natural conseuence of the defendant?s negligence. n example of such a case is Haynes v. Harwood 301675 0 A; 0<9, in which a policeman was able to recover damages after being in%ured restraining a bolting horse he had a legal and moral duty to protect life and property and as such was not held to have been acting as a volunteer or giving willing consent to the action - it was his contractual obligation as an employee and police oBcer and moral necessity as a human being to do so, and not a wish to volunteer, which caused him to act. In this case the court of appeal aBrmed a %udgement in favor of a policeman who had been in%ured in stopping some runaway horses with a van in a crowded street. The policeman who was on duty, not in the street, but in a police station, darted out and was crushed by one of the horses which fell upon him while he was stopping it. It was also held that the rescuer&s act need not be instinctive in order to be reasonable, for one who deliberately encounters peril after reCection may often be acting more reasonably than one who acts upon impulse.
In Case of Sui!ide*here the 'laimant commits suicide, originally it was held that they would be treated as volens if they were of sound mind, but if they were of unsound mind the defence of volenti non ft injuria would have no application. owever, this distinction was abandoned as it would essentially deprive the duty of substance
In Case of sportin& events participant in sporting events is ta$en to consent to the ris$ of in%ury which occurs in the course of the ordinary performance of the sport. ,his was also ta$en to apply to spectators at sporting events.
In Case of drunk driversIf a person accepting a lift from a drun$ driver was not to be treated as volens unless the drun$enness was so extreme and so glaring that accepting a lift would be euivalent of to intermeddling with an unexploded bomb or wal$ing on the edge of an unfenced cli#. The defence of volenti is now excluded by statute where a passenger was in%ured as a result of agreeing to ta$e a lift from a drun$ car driver. owever, in a well-$nown case of Morris v Murray 3011D5 6 ll EF 4D0 ('ourt of ppeal), volenti was held to apply to a drun$ passenger, who accepted a lift from a drun$ pilot. The pilot died in the resulting crash and the passenger who was in%ured, sued his estate. lthough he drove the pilot to the airGeld (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 ris$ involved in Cying. The 'ourt of ppeal held that there was consent the passenger was not so drun$ as to fail to realise the ris$s of ta$ing a lift from a drun$ pilot, and his actions leading up to the Cight demonstrated that he voluntarily accepted those ris$s.
,respassers The Hccupiers? iability ct 014< reuires all owners of property to ta$e reasonable steps to ma$e their premises safe for anyone who enters them, even those who enter as trespassers, if they are aware of a ris$ on the
premises. owever, the doctrine of volenti has been applied to cases where a trespasser exposed them deliberately to ris$ •
Titchener v British Railways Board 301465 0 *F 0<2
In this case (decided before the Hccupier&s iability ct was passed), a girl who had trespassed on the railway was hit by a train. The ouse of ords ruled that the fencing around the railway was adeuate, and the girl had voluntarily accepted the ris$ by brea$ing through it. •
Ratcli v McConnell 301125 E*' 'iv 921
In this case, a student who had bro$en into a closed swimming-pool and in%ured himself by diving into the shallow end was similarly held responsible for his own in%uries.
