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. he defence of volenti non fit injuria re!uires 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. here is a considerable overlap with contributory negligence and since the introduction of the "aw #eform $Contributory %egligence& Act '()*, 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. he re!uirements of the defence are thus+ '. A voluntary ,. Agreement -. .ade in full knowledge of the nature and e/tent of the risk.

1. Voluntary he 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 e/ercise free choice, the defence will not succeed. his element is most commonly seen in relation to employment relationships, rescuers and suicide.

2. greement he second re!uirement for the defence of volenti non fit injuria is agreement. he agreement may be e/press or implied. An e/ample of an e/press agreement would be where there e/ists a contractual term or notice. 0owever, this would be sub1ect to the controls of s., of the 2nfair Contract erms Act '(33. An implied agreement may e/ist where the Claimant's action in the circumstances demonstrates a willingness to accept not only the physical risks but also the legal risks. Smith v Baker & Sons !1"#1$ C %2&

he Claimant sued his employers for in1uries sustained while in the course of working in their employment. 0e was employed to hold a drill in position whilst two other workers took it in turns to hit the drill with a hammer. %e/t to where he was working another set of workers were engaged in taking out stones and putting them into a steam crane which swung over the place where the Claimant was working. he Claimant was in1ured when a stone fell out of the crane and struck him on the head. he Defendant raised the defence of volenti non fit injuria in that the Claimant knew it was a dangerous practice and had complained that it was dangerous but nevertheless continued. At trial the 1ury found for the Claimant. he Defendant appealed and the Court of Appeal allowed the appeal holding that the Claimant was precluded from recovering as he had willingly accepted the risk. he Claimant appealed to the 0ouse of "ords. 0eld -+, Decision.

he appeal was allowed. he Claimant may have been aware of the danger of the 1ob, but had not consented to the lack of care. 0e was therefore entitled to recover damages.

"ord Watson+

4In its application to !uestions between the employer and the employed, the ma/im as now used generally imports that the workman had either e/pressly 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 in1ury. he !uestion which has most fre!uently to be considered is not whether he voluntarily and rashly e/posed himself to in1ury, but whether he agreed that, if in1ury should befall him, the risk was to be his and not his masters. When, as is commonly the case, his acceptance or non5acceptance of the risk is left to implication, the workman cannot reasonably be held to have undertaken it unless he knew of its e/istence, and appreciated or had the means of appreciating its danger. 6ut assuming that he did so, I am unable to accede to the suggestion that the mere fact of his continuing at his work, with such knowledge and appreciation, will in every case necessarily imply his acceptance. Whether it will have that effect or not depends, in my opinion, to a considerable e/tent upon the nature of the risk, and the workman's connection with it, as well as upon other considerations which must vary according to the circumstances of each case.4 %. 'nowledge he Claimant must have knowledge of the full nature and e/tent of the risk that they ran+ Wooldridge v Sumner !1#(%$ 2 )* +% he claimant was a photographer at a horse show. 0e was situated within the ring of the horse show and not behind the barriers where the spectators were housed. 0e was on a bench with a .iss 7mallwood who was a director of the company which employed the Claimant. 0e had been taking little interest in the proceedings and was not e/perienced in regard to horses. During the competition, one of the horses, Work of Art owned by the Defendant, came galloping at great speed towards the bench where they were sitting. he Claimant took fright at the approach of the galloping horse and attempted unsuccessfully to pull .iss 7mallwood off the bench. 0e stepped or fell back into the course of the horse which passed three or few feet behind the bench, and was knocked down. he Claimant brought an action in negligence arguing the rider had lost control of the horse and was going too fast. he defendant raised the defence of volenti non fit injuria.

0eld+ here was no breach of duty so the Claimant's action failed. 8n the issue of volenti non fit injuria it was held that consent to the risk of in1ury was insufficient. here must be consent to the breach of duty in full knowledge of the nature and e/tent of the risk. Diplock "9+ 4 he ma/im in :nglish law presupposes a tortious act by the defendant. he consent that is relevant is not consent to the risk of in1ury but consent to the lack of reasonable care that may produce that risk; and re!uires on the part of the plaintiff at the time at which he gives his consent full knowledge of the nature and e/tent of the risk that he ran4

Volenti non fit injuria in em,loyment relationshi,s As long ago as '<(', the 0ouse of "ords 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+ Imperial Chemical Industries Ltd v Shatwell !1#(&$ C (&( 0ouse of "ords he claimants were brothers who were !ualified shotfirers employed by the defendant. hey were in1ured as a result of an e/plosion at the defendant's !uarry caused by the brothers' negligence. hey had insufficient wire to test a circuit to allow them to test from a shelter. Another worker had gone to fetch more wire but the brothers decided to go ahead and test with the shorter wire. :ach brother claimed against the defendant based on their employer's vicarious liability for the negligence and breach of statutory duty of the other brother. he defendant raised the defence of volenti non fit injuria in that the brothers the brothers had full knowledge of the risk and were acting against e/press instructions. At trial the 1udge held that the defence of volenti could not apply where there was breach of a statutory duty. his was upheld in the Court of Appeal.

0eld+ he appeal was allowed. he brothers had deliberately acted in defiance of the employer's e/press instructions in full knowledge of the risks. he workers were under the statutory duty not the employer. he employer had been instrumental in bringing in the statutory regulations and ensured all workers were aware of them. hey had also previously dismissed a worker for flouting the regulations. Volenti non fit injuria - rescuers

A rescuer is not regarded as having freely and voluntarily accepted the risk+ Baker v ! "opkins & Son Ltd !1#&#$ 1 -./ #(( Court of Appeal

.r Ward and .r Wileman were employed by the defendant, 0opkins. hey had been called to clean out a well. he well was *=ft deep and >ft wide. 0opkins tested the atmosphere in the well by putting a lighted candle down the well. he candle returned still lighted and thus he concluded the atmosphere was fine. 0e and Ward then took a petrol motored pump down the well started it up and left the well leaving the engine running on its own. he motor ran for ' '?, hours before it stopped of its own accord. 6efore leaving the site .r 0opkins told .r Ward and .r Wileman not to go down the well until the fumes have cleared. he following morning 0opkins again told the two not to go down the well until he had arrived on the site. In breach of these orders .r. Ward went down the well and was overcome by fumes. .r Wileman called for assistance and went down the well after him. he claimant, Dr 6aker, then arrived on the scene. 0e too went into the well to seek to rescue the two. 2nfortunately all three died of carbon mono/ide poisoning. he defendant contended that the act of the doctor acted as a novus actus interveniens and sought to invoke volenti non fit injuria. 0eld+ he doctors actions were not a novus actus interveniens. It was foreseeable that if a defendant by his negligence places another in peril that someone may come to his rescue and the doctor's actions were not unreasonable in the circumstances. he Claimant's action was not defeated by volenti non fit injuria. 0e was and as such his actions did not count as freely and voluntarily accepting the risk.

.orris "9+ it was said that Dr. 6aker had been 4unreasonably4 brave. If a rescuer acts with a wanton disregard of his own safety it might be that in some circumstances it might be held that any in1ury to him was not the result of the negligence that caused the situation of danger. 7uch a contention cannot be here asserted. Dr. 6aker tied a strong rope round his body and arranged for the rope to be held by those on the surface, and arranged to maintain oral communication with them. It must be remembered also that the chances of success of his attempt would diminish moment by moment if he tarried. 0e in no way acted recklessly or negligently. In my 1udgment, the learned 9udge came to a correct conclusion in regard to the claim made by his e/ecutors. "a#nes v "arwood !1#%&$ 1 '* 1+( he Defendant left a horse5drawn van unattended in a crowded street. he horses bolted when a boy threw a stone at them. A police officer tried to stop the horses to save a woman and children who were in the path of the bolting horses. he police officer was in1ured. It was held that the Defendant owed a duty of care as he had created a source of danger by leaving his horses unattended in a busy street. Volenti non fit injuria - 0uicide 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+ $irkham v CC %reater &anchester 'olice !1##1$ 2 )* 2"% Court of Appeal .r @irkham was an alcoholic and suffered from depression. 0e had made a two suicide attempts on >th 9an '(<=. 0e was admitted to hospital but discharged himself the following day. When he arrived home his wife prevented him from drinking and he became violent and started smashing furniture. he police were called and arrested him. 0is wife informed them of his suicide attempts and discharging himself from hospital and it was agreed that he should be remanded in custody for his own safety. 0owever, the police failed inform the prison

authorities that .r @irkham was a suicide risk. 0e committed suicide whilst on remand at #isley #emand Centre. 0is wife brought an action based on the negligence of the police in failing to pass on the information. he Aolice raised the defences of volenti non fit injuria and ex turpi causa.

0eld+ he claimant was successful. he defence of volenti non fit in1uria, although normally would apply where a person of sound mind were to take their own life, had no application where a person of unsound mind took their life. he defence of ex turpi causa was not limited to illegal acts but e/tended also to immoral acts. he court applied the public conscience test and concluded that to allow the claimant to succeed would not affront the public conscience, or shock the ordinary citiBen. "ord 9ustice "loyd+ Where a man of sound mind in1ures himself in an unsuccessful suicide attempt, it is difficult to see why he should not be met by a plea of volenti non fit in1uria. 0e has not only courted the risk of in1ury by anotherC he has inflicted the in1ury himself. In 0yde v. ameside Area 0ealth Authority, the plaintiff, who had made an unsuccessful suicide attempt, brought an action for damages against the 0ealth Authority alleging negligence on the part of the hospital staff. "ord Denning doubted whether a defence of volenti non fit injuria would be available in such a case 4seeing that Dthe plaintiffE did not willingly in1ure himself 5 he wanted to die4. I find that reasoning hard to follow. Any observation of "ord Denning is, of course, entitled to great weightC but the observation was obiter, since the court held that the hospital staff had not been negligent. .oreover we were told by .r Foster, who happened to have appeared for the plaintiff in that case, that the point was never argued. 7o I would be inclined to hold that where a man of sound mind commits suicide, his estate would be unable to maintain an action against the hospital or prison authorities, as the case might be. Volenti non fit injuria would provide them with a complete defence. here should be no distinction between a successful attempt and an unsuccessful attempt at suicide. %or should there be any distinction between an action for the benefit of the estate under the "aw #eform Act and an action for the benefit of dependants under the Fatal

Accidents Act. In so far as Ailcher 9. drew a distinction between the two types of action in Aigney v. Aointers ransport 7ervices "td. '(*3 , All :.#. 7=3, I would respectfully disagree. 6ut in the present case .r @irkham was not of sound mind. rue, he was sane in the legal sense. 0is suicide was a deliberate and conscious act. 6ut Dr 7ayed, whose evidence the 1udge accepted, said that .r @irkham was suffering from clinical depression. 0is 1udgment was impaired. If it had been a case of murder, he would have had a defence of diminished responsibility due to disease of the mind. I have had some doubt on this aspect of the case, in the light of Dr 7ayed's further evidence that, though his 1udgment was impaired, .r @irkham knew what he was doing. 6ut in the end I have been persuaded by .r Foster that, even so, he was not truly volens. 0aving regard to his mental state, he cannot, by his act, be said to have waived or abandoned any claim arising out of his suicide. 7o I would re1ect the defence of volenti non fit injuria. (eeves v Commissioner of 'olice of the &etropolis D,===E ' AC ->= 0ouse of "ords .artin "ynch committed suicide whilst in a police cell. 0e had attempted suicide earlier that day in the cells at the magistrates. 0e had also attempted suicide on previous occasions. 0e had been seen by a doctor at the police station on arrival who reported that he was not schiBophrenic or depressed but was a suicide risk. he custody officer checked him at '.*3 pm and left the hatch open. 0e was found at ,.=* pm having used his shirt as a ligature secured by the open hatch. 0e was unable to be resuscitated and died a week later. he defendant argued that as "ynch was of sound mind his voluntary and informed act of suicide broke the chain of causation. 0eld+ he act of suicide was the very thing that the police were under a duty to prevent to treat this as a novus actus interveniens would deprive the duty of any substance. herefore the defendant was liable, however damages were reduced by *=G under the "aw #eform $Contributory %egligence& Act '()*. Volenti non fit injuria in conte2t of s,orting events

A participant in sporting events is taken to consent to the risk of in1ury which occurs in the course of the ordinary performance of the sport. Wooldridge v Sumner !1#(%$ 2 )* +% he claimant was a photographer at a horse show. 0e was situated within the ring of the horse show and not behind the barriers where the spectators were housed. 0e was on a bench with a .iss 7mallwood who was a director of the company which employed the Claimant. 0e had been taking little interest in the proceedings and was not e/perienced in regard to horses. During the competition, one of the horses, Work of Art owned by the Defendant, came galloping at great speed towards the bench where they were sitting. he Claimant took fright at the approach of the galloping horse and attempted unsuccessfully to pull .iss 7mallwood off the bench. 0e stepped or fell back into the course of the horse which passed three or few feet behind the bench, and was knocked down. he Claimant brought an action in negligence arguing the rider had lost control of the horse and was going too fast. he defendant raised the defence of volenti non fit injuria.

0eld+ here was no breach of duty so the Claimant's action failed. 8n the issue of volenti non fit injuria it was held that consent to the risk of in1ury was insufficient. here must be consent to the breach of duty in full knowledge of the nature and e/tent of the risk.

Diplock "9+ 4 he ma/im in :nglish law presupposes a tortious act by the defendant. he consent that is relevant is not consent to the risk of in1ury but consent to the lack of reasonable care that may produce that risk; and re!uires on the part of the plaintiff at the time at which he gives his consent full knowledge of the nature and e/tent of the risk that he ran4 Volenti non fit injuria in relation to drunk drivers

In Dann v Hamilton D'(-(E ' @6 *=( $Case summary& it was held that a person accepting a lift from a drunk driver was not to be treated as volens unless the drunkenness was so e/treme and so glaring that accepting a lift would be e!uivalent of to intermeddling with an une/ploded bomb or walking on the edge of an unfenced cliff. An e/ample of where this was successfully invoked can be seen+ )ann v "amilton !1#%#$ 1 '* &1# he Claimant was in1ured when she was a willing passenger in the car driven by the .r 0amilton. 0e had been drinking and the car was involved in a serious crash which killed him. In a claim for damages the Defendant raised the defence of volenti non fit injuria in that in accepting the lift knowing of his drunken condition she had voluntarily accepted the risk. 0eld+ he defence was unsuccessful. he claimant was entitled to damages. As!uith 9+ 4 here may be cases in which the drunkenness of the driver at the material time is so e/treme and so glaring that to accept a lift from him is like engaging in an intrinsically and obviously dangerous occupation, intermeddling with an une/ploded bomb or walking on the edge of an unfenced cliff. It is not necessary to decide whether in such a case the ma/im 'volenti non fit injuria' would apply, for in the present case I find as a fact that the driver's degree of into/ication fell short of this degree4.