AIMS AND OBJECTIVES
After reading this chapter you should be able to:
■ Understand the criteria for establishing the defences of volenti non fit injuria (voluntary assumption of risk) and contributory negligence
■ Understand that volenti is a complete defence removing liability while contributory negligence is only a partial defence with the effect of reducing damages
■ Critically analyse the two defences
■ Apply the two defences to factual situations
Causation also needs to be considered when determining whether or not the claimant has either accepted a risk of harm and voluntarily taken it, or indeed has otherwise contributed to his own damage by taking insufficient care for his own safety. In this way a claimant who takes part in sporting activities, particularly in the case of a contact sport, may have voluntarily assumed the risk of injury by taking part and being aware of the nature of the sport. Similarly in the case of road traffic accidents there may be contributory negligence, for instance where the claimant has failed to wear a seat belt, or in the case of an accident involving a motorbike where the claimant failed to wear a crash helmet.
If on the other hand the claimant has contributed so much to the damage suffered as to be entirely responsible, then this will probably result in a successful plea of novus actus interveniens.
There are two specific defences that are particularly appropriate here: volenti non fit injuria (voluntary assumption of a risk) and contributory negligence. The distinction between volenti and contributory negligence is clearly important. Volenti is a complete defence and so defeats the claim, whereas contributory negligence is a partial defence only reducing the claimant’s damages. Besides this, statutory provisions such as the Unfair Contract Terms Act 1977 s2(3) suggest that volenti might succeed even without an agreement between the two parties.
However, it is not easy to succeed in a defence of volenti since use of contributory negligence and apportionment of responsibility is more fair than denying any redress to a claimant where a defendant has been in breach of a duty of care.
Volenti non fit injuria is a complete defence, unlike contributory negligence which only reduces damages, and if it is successful then a claimant will recover no damages. The defence succeeds because there is a voluntary assumption of the risk of harm by the claimant and a simple translation would be that no injury is done to one who freely consents to the risk.
Distinction must be drawn between:
■ an intentional infliction of harm — which is negatived by consent, for example where a patient signs a consent form in respect of an operation there is no battery, and
■ a negligent infliction of harm — in which for the defendant to avoid liability for his otherwise negligent act the claimant must voluntarily accept the risk of injury.
It must be remembered of course that before the defence can be applied successfully it must be shown that the defendant did in fact commit a tort.
Wooldridge v Sumner  2 QB 43
The claimant attended a horse show as a professional photographer. A rider who was riding too fast lost control of his horse which then injured the claimant. The Court of Appeal recognised that the rider owed spectators a duty of care. Nevertheless, they considered that he had been guilty of an error of judgement in his riding of the horse but not negligence. He had not breached his duty so volenti was not an issue.
Some judges take the view that the defence succeeds because there is an express or implied agreement between the defendant and the claimant. However, certain judges believe that the defence can still succeed where the claimant has come upon a danger that has already been created by the defendant.
To succeed, the defendant will in any case have to show three things:
■ knowledge of the precise risk involved;
■ exercise of free choice by the claimant;
■ a voluntary acceptance of the risk.
Knowledge of the precise risk
The test of volenti is a subjective one, not an objective one. It will not help the defendant to argue that the claimant ought to have been aware of the risk. The defence only applies where the claimant does actually know of the risk and freely accepts it.
Nevertheless, where a defence of volenti may fail for just such a reason, the defendant may still be able to successfully claim contributory negligence and at least reduce the amount of damages that are payable.
It is not sufficient then merely that the claimant has knowledge of the existence of the risk. The defence is volenti non fit injuria and not scienti non fit injuria. The claimant must fully understand the precise nature of the actual risk and be prepared to run it.
Stermer v Lawson  79 DLR (3d) 366
The claimant borrowed the defendant’s motorbike but was not shown how to use it so he could not and did not appreciate the risks involved. The defendant’s claim of volenti failed as a result. The court held that he was unaware of the precise risk and therefore was not personally responsible.
Exercise of free choice by the claimant
Similarly the risk must be freely taken for the defence to succeed. There will be no defence where the claimant had no choice but to accept the risk.
Smith v Baker  AC 325
The claimant drilled rock in a quarry bottom. He was injured when a crane moved rocks over his head and some fell on him. Volenti failed in the case because, as the court explained, the worker was given no proper warning of when the crane was in use and so was unaware of the danger. He was aware of the risk of stones falling but there was no voluntary assumption of risk in the circumstances.
Lord Halsbury LC explained why the defence could not apply:
‘I think that a person who relies on the maxim must shew a consent to the particular thing done … in order to defeat a plaintiff’s right by the maxim relied on … the jury ought to be able to affirm that he consented to the particular thing being done which would involve the risk, and consented to take the risk upon himself.’
If the claimant’s behaviour is such that he need not have been in any danger but for his own actions then volenti is clearly a possibility.
ICI Ltd v Shatwell  AC 656
The claimant and his brother were working in the defendants’ quarry. They disregarded the defendants’ orders and also statutory regulations by testing detonators without taking appropriate precautions. The claimant was injured in an explosion and maintained that the defendants were vicariously liable on the basis of the claimant’s brother, who instructed him not to follow the instructions, having been negligent and in breach of statutory duty. The court held against him. By ignoring his employers and listening to his brother’s unauthorised comments he had assumed the risk of injury by exercising his own free choice.
A voluntary acceptance of the risk
For a defendant to successfully raise the defence, the claimant must have had a genuine free choice, freedom of will and no feeling of constraint.
As Scott LJ put it in Bowater v Rowley Regis Corporation  KB 476:
‘A man cannot be said to be truly willing unless he is in a position to choose freely.’
Smith v Baker  AC 325
Here while the employers pleaded volenti it could not apply because there had been no warning of the moment of a recurring danger. Although the claimant knew of the risk, there was no evidence that he had voluntarily accepted the risk. Merely continuing to work in the circumstances was not voluntary acceptance of the risk.
However, if an employee is not in a predicament actually imposed upon him by the defendant, but instead by pursuing a dangerous method of work through personal choice he injures himself, then volenti may well apply and the defence might succeed.
ICI v Shatwell  AC 656
Here the court held that if the claimant had sued his brother, the action would have failed on the basis of volenti and, as a result, the defendants were not vicariously liable. The claimant had consented to the conduct that had caused his injury. He had voluntarily accepted the risk of harm and was responsible for his own injury.
The fact that the claimant has engaged in or attempted a rescue does not mean that he has voluntarily accepted the risk.
Haynes v Harwood  1 KB 146
Here the claimant, a policeman, was injured when he attempted to stop a runaway horse. He was under a duty because of his employment to try to stop the horse and protect the public so he had not acted voluntarily. The court would not accept the defence.
However, if there is no actual danger then a claimant in such circumstances may indeed have voluntarily accepted the risk of harm.
Cutler v United Dairies  2 KB 297
A horse bolted into an empty field. Nobody was in actual danger. The claimant tried to calm the horse but was injured. The court held that the claimant was indeed volenti and had exercised free choice. The defence succeeded.
‘By engaging in a sport … the participants may be held to have accepted risks which are inherent in that sport … but this does not eliminate all duty of care of the one participant to the other.’
Lord Diplock has explained the position regarding spectators in Wooldridge v Sumner  2 QB 43:
‘A person attending a game or competition takes the risk of any damage caused to him by any act of a participant done in the course of and for the purposes of the game or competition notwithstanding that such an act may involve an error of judgement or a lapse of skill, unless the participant’s conduct is such as to evince a reckless disregard for the spectator’s safety.’
Nevertheless, a spectator does not consent to the negligence of a competitor merely by being present at the sporting event.
In some cases judges have indicated that for the defence to succeed there must be either an express or implied agreement that the claimant would waive any claim against the defendant. This may for instance be as a result of an exclusion clause. Even then it would be subject to s2(1) of the Unfair Contract Terms Act 1977.
The courts are more reluctant to imply that there is an agreement that a claimant will accept the risk of injury.
Dann v Hamilton  1 KB 509
Hamilton drove the claimant and her mother to London to see the Coronation decorations. Hamilton drank alcohol during the evening. They met a man who was given a lift but who left the car shortly before it was involved in an accident when the claimant was injured and Hamilton was killed. The man had said to the claimant and her mother ‘You two have more pluck than I have.’ The claimant said, ‘You should be like me. If anything is going to happen, it will happen.’ The court held that volenti could not apply. The claimant had not consented to the defendant’s negligence.
Asquith J indicated that the defence was only applicable when the claimant came to a situation where the defendant’s negligence had already created the danger. He also stated:
‘There may be cases in which the drunkenness of the driver at the material time is so extreme and so glaring that to accept a lift from him is like engaging in an intrinsically and obviously dangerous occupation, intermeddling with an unexploded bomb or walking on the edge of an unfenced cliff.’
‘Nothing will suffice short of an agreement to waive any claim for negligence. The claimant must agree, expressly or impliedly, to waive any claim for any injury that may befall him due to the lack of reasonable care by the defendant.’
Where a defendant tries to rely on an exclusion clause if the damage is death or personal injury the defence of volenti may fail because of s2(1) Unfair Contract Terms Act 1977 which states:
‘s2(1) A person cannot by reference to any contract term or to a notice given to persons generally or to particular persons exclude or restrict his liability for death or personal injury resulting from negligence.’