Volenti non fit injuria – To a willing person, no harm is done

personal-injury-consent‘Volenti non fit injuria’ is a legal principle that one who knowingly and voluntarily consents to and takes on a risk cannot ask for compensation for the damage or injury resulting from it. So Volenti non fit injuria is a defence in tort that means where a person engages in an event accepting and aware of the risks inherent in that event, then they cannot later complain of, or seek compensation for an injury suffered during the event. This is used often to defend against tort actions as a result of a sports injury.

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 statement) or implicitly (by actions) consented to waive all claims for damages.

So, the essential conditions are:

  1. Consent must be free and voluntary, i.e. it must not be brought about by duress.
  2. Consent must not have been given to an illegal act
  3. Knowledge of risk is not the same thing as consent to run the risk

In Woolridge vs Sumner (1963) 2 QB 43, the plaintiff a photographer was taking photographs at a horse show, during which one horse rounded the bend too fast. As the horse galloped furiously, the plaintiff was frightened and he fell in the course. He was seriously injured. It was held that the defendants had taken proper care in closing the course and the plaintiff, by being in the show, agreed to take the risk of such an accident. The defendants were not held liable.

In Wilson vs Glossop (20 QBD 354), 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 Smith vs Baker [1891] AC 325, the plaintiff was employed by the defendants on the construction of a railway. While he was working, a crane moved rocks over his head. Both he and his employers knew there was a risk of a stone falling on him and he had complained to them about this. A stone fell and injured the plaintiff and he sued his employers for negligence. The employers pleaded volenti non fit injuria but this was rejected by the court. Although the plaintiff knew of the risk and continued to work, there was no evidence that he had voluntarily undertaken to run the risk of injury

Limitations to the defence of ‘Volenti non fit injuria’

(1) No consent, leave or license can legalise an unlawful act.

(2) The maxim has no validity against an action based on a breach of statutory duty.

(3) The maxim does not apply where the plaintiff has, under an exigency caused by the defendant’s wrongful misconduct, consciously and deliberately faced a risk, even of death, to rescue another from imminent danger of personal injury or death, whether the person endangered is one to whom he owes a duty of protection or is a mere stranger.

(4) Generally the maxim does not apply to the cases of negligence.

(5) The maxim does not apply where the act of the plaintiff relied upon to establish the defence under the maxim is the very act which the defendant was under a duty to prevent.

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