Volenti non fit injuria
Encyclopedia
Volenti non fit injuria (Latin
: "to a willing person, no injury is done" or "no injury is done to a person who consents") is a common law
doctrine which means that if someone willingly places themselves in a position where harm might result, knowing that some degree of harm might result, they will not be 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 tort
s 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 trespass
er).
, volenti is a full defence, i.e. it fully exonerates the defendant who succeeds in proving it. The defence has two main elements:
It is not easy for a defendant to show both elements and therefore comparative negligence
usually constitutes a better defence in many cases. Note however that comparative negligence is a partial defence, i.e. it usually leads to a reduction of payable damages rather than a full exclusion of liability. Also, the person consenting to an act may not always be negligent: a bungee jumper may take the greatest possible care not to be injured, and if he is, the defence available to the organiser of the event will be volenti, not comparative negligence.
Consent to medical treatment or consent to risky sports on the part of the claimant excludes liability in tort where that consent is informed consent.
For the similar principle in American law, see Assumption of risk
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:
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.
), 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.
if:
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.
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.
Latin
Latin is an Italic language originally spoken in Latium and Ancient Rome. It, along with most European languages, is a descendant of the ancient Proto-Indo-European language. Although it is considered a dead language, a number of scholars and members of the Christian clergy speak it fluently, and...
: "to a willing person, no injury is done" or "no injury is done to a person who consents") is a common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
doctrine which means that if someone willingly places themselves in a position where harm might result, knowing that some degree of harm might result, they will not be 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
Boxing
Boxing, also called pugilism, is a combat sport in which two people fight each other using their fists. Boxing is supervised by a referee over a series of between one to three minute intervals called rounds...
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
Consent
Consent refers to the provision of approval or agreement, particularly and especially after thoughtful consideration.- Types of consent :*Implied consent is a controversial form of consent which is not expressly granted by a person, but rather inferred from a person's actions and the facts and...
in that the latter can prevent some tort
Tort
A tort, in common law jurisdictions, is a wrong that involves a breach of a civil duty owed to someone else. It is differentiated from a crime, which involves a breach of a duty owed to society in general...
s 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 trespass
Trespass
Trespass is an area of tort law broadly divided into three groups: trespass to the person, trespass to chattels and trespass to land.Trespass to the person, historically involved six separate trespasses: threats, assault, battery, wounding, mayhem, and maiming...
er).
Volenti in English Law
In English tort lawEnglish tort law
English tort law concerns civil wrongs, as distinguished from criminal wrongs, in the law of England and Wales. Some wrongs are the concern of the state, and so the police can enforce the law on the wrongdoers in court – in a criminal case...
, volenti is a full defence, i.e. it fully exonerates the defendant who succeeds in proving it. The defence has two main elements:
- The claimant was fully aware of all the risks involved, including both the nature and the extent of the risk; and
- The claimant expressly (by his statement) or impliedly (by his actions) consented to waive all claims for damages. His knowledge of the risk is not sufficient: sciens non est volens ("knowing is not volunteering"). His consentConsentConsent refers to the provision of approval or agreement, particularly and especially after thoughtful consideration.- Types of consent :*Implied consent is a controversial form of consent which is not expressly granted by a person, but rather inferred from a person's actions and the facts and...
must be free and voluntary, i.e. not brought about by duress. If the relationship between the claimant and defendant is such that there is doubt as to whether the consent was truly voluntary, such as the relationship between workers and employers, the courts are unlikely to find volenti.
It is not easy for a defendant to show both elements and therefore comparative negligence
Comparative negligence
Comparative negligence, or non-absolute contributory negligence outside of the United States, is a partial legal defense that reduces the amount of damages that a plaintiff can recover in a negligence-based claim based upon the degree to which the plaintiff's own negligence contributed to cause...
usually constitutes a better defence in many cases. Note however that comparative negligence is a partial defence, i.e. it usually leads to a reduction of payable damages rather than a full exclusion of liability. Also, the person consenting to an act may not always be negligent: a bungee jumper may take the greatest possible care not to be injured, and if he is, the defence available to the organiser of the event will be volenti, not comparative negligence.
Consent to medical treatment or consent to risky sports on the part of the claimant excludes liability in tort where that consent is informed consent.
For the similar principle in American law, see Assumption of risk
Assumption of risk
Assumption of risk is a defense in the law of torts, which bars a plaintiff from recovery against a negligent tortfeasor if the defendant can demonstrate that the plaintiff voluntarily and knowingly assumed the risks at issue inherent to the dangerous activity in which he was participating at the...
Trespassers
The Occupiers' Liability Act 1984Occupiers' Liability Act 1984
The Occupiers' Liability Act 1984 is an Act of the Parliament of the United Kingdom that covers occupiers' liability for trespassers. In British Railways Board v Herrington 1972 AC 877, the House of Lords had decided that occupiers owed a duty to trespassers, but the exact application of the...
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 BoardTitchener v British Railways BoardTitchner v British Railway Board [1983] 1 WLR 1427 is a Scottish delict case concerning occupiers' liability, decided by the House of Lords.-Facts:...
[1983] 1 WLR 1427 - Ratcliff v McConnell [1997] EWCA Civ 2679
- Tomlinson v Congleton Borough CouncilTomlinson v Congleton Borough CouncilTomlinson v Congleton Borough Council [2003] is a 2003 court case in England from the House of Lords regarding the torts of negligence and occupiers' liability ....
[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 AppealCourt of Appeal of England and Wales
The Court of Appeal of England and Wales is the second most senior court in the English legal system, with only the Supreme Court of the United Kingdom above it...
), 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 volensVolens
In law, volens is a state of mind, referring to voluntary acceptance of a specific risk. It is usually pleaded by way of defence, and often employs the legal Latin volenti non fit injuria...
if:
- He was acting to rescue persons or property endangered by the defendant’s negligence;
- He was acting under a compelling legal, social or moral duty; and
- 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. WestonNettleship v. WestonNettleship v Weston [1971] 2 QB 691 is an English Court of Appeal judgment dealing with the breach of duty in negligence claims. In this case the court had considered the question of the standard of care that should be applied to a learner driver, and whether it should be the same as is expected of...
[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
Plaintiff
A plaintiff , also known as a claimant or complainant, is the term used in some jurisdictions for the party who initiates a lawsuit before a court...
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.
See also
- Acts of the claimantActs of the claimantIn the English law of negligence, the acts of the claimant may give the defendant a defence to liability, whether in whole or part, if those acts unreasonably add to the loss.-The principles:...
- Assumption of riskAssumption of riskAssumption of risk is a defense in the law of torts, which bars a plaintiff from recovery against a negligent tortfeasor if the defendant can demonstrate that the plaintiff voluntarily and knowingly assumed the risks at issue inherent to the dangerous activity in which he was participating at the...
- ConsentConsentConsent refers to the provision of approval or agreement, particularly and especially after thoughtful consideration.- Types of consent :*Implied consent is a controversial form of consent which is not expressly granted by a person, but rather inferred from a person's actions and the facts and...
- Ex turpi causa non oritur actioEx turpi causa non oritur actioEx turpi causa non oritur actio is a legal doctrine which states that a claimant will be unable to pursue a cause of action if it arises in connection with his own illegal act...
- List of Latin phrases
- SciensSciensIn law, sciens, the Latin word for "knowlingly", describes a state of mind. It refers to knowledge of a fact, usually of a specific risk. It is usually pleaded by way of defence. For example where a claimant suffers a personal injury, the respondent to the claim may aver that the claimant was...
- VolensVolensIn law, volens is a state of mind, referring to voluntary acceptance of a specific risk. It is usually pleaded by way of defence, and often employs the legal Latin volenti non fit injuria...