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. The defence of volenti non fit
injuria requires 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. There is a considerable overlap with
contributory negligence and since the introduction of the Law Reform
(Contributory Negligence) Act 1945, 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.

The requirements of the defence are thus:

1. A voluntary

2. Agreement

3. Made in full knowledge of the nature and extent of the risk.

1. Voluntary

The 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 exercise free
choice, the defence will not succeed. This element is most commonly seen in
relation to employment relationships, rescuers and suicide.
2. Agreement

The second requirement for the defence of volenti non fit injuria is agreement.
The agreement may be express or implied. An example of an express agreement
would be where there exists a contractual term or notice. However, this would
be subject to the controls of s.2 of the Unfair Contract Terms Act 1977. An
implied agreement may exist 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 [1891] AC 325

The Claimant sued his employers for injuries sustained while in the course of
working in their employment. He was employed to hold a drill in position whilst
two other workers took it in turns to hit the drill with a hammer. Next 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. The Claimant was injured when a stone fell out of the crane and
struck him on the head. The 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 jury
found for the Claimant. The 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. The Claimant appealed to the House of
Lords.

Held 3:2 Decision.

The appeal was allowed. The Claimant may have been aware of the danger of
the job, but had not consented to the lack of care. He was therefore entitled to
recover damages.

Lord Watson:
"In its application to questions between the employer and the employed, the
maxim as now used generally imports that the workman had either expressly 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 injury. The question which has most frequently to be considered is not
whether he voluntarily and rashly exposed himself to injury, but whether he
agreed that, if injury should befall him, the risk was to be his and not his
masters. When, as is commonly the case, his acceptance or non-acceptance of
the risk is left to implication, the workman cannot reasonably be held to have
undertaken it unless he knew of its existence, and appreciated or had the means
of appreciating its danger. But 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 extent 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."

3. Knowledge

The Claimant must have knowledge of the full nature and extent of the risk that
they ran:

Wooldridge v Sumner [1963] 2 QB 43

The claimant was a photographer at a horse show. He was situated within the
ring of the horse show and not behind the barriers where the spectators were
housed. He was on a bench with a Miss Smallwood who was a director of the
company which employed the Claimant. He had been taking little interest in the
proceedings and was not experienced 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. The
Claimant took fright at the approach of the galloping horse and attempted
unsuccessfully to pull Miss Smallwood off the bench. He stepped or fell back
into the course of the horse which passed three or few feet behind the bench,
and was knocked down. The Claimant brought an action in negligence arguing
the rider had lost control of the horse and was going too fast. The defendant
raised the defence of volenti non fit injuria.
Held:

There was no breach of duty so the Claimant's action failed. On the issue
of volenti non fit injuria it was held that consent to the risk of injury was
insufficient. There must be consent to the breach of duty in full knowledge of
the nature and extent of the risk.

Diplock LJ:
"The maxim in English law presupposes a tortious act by the defendant. The
consent that is relevant is not consent to the risk of injury but consent to the lack
of reasonable care that may produce that risk… and requires on the part of the
plaintiff at the time at which he gives his consent full knowledge of the nature
and extent of the risk that he ran"

Volenti non fit injuria in employment relationships

As long ago as 1891, the House of Lords 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 [1965] AC 656 House of Lords

The claimants were brothers who were qualified shotfirers employed by the
defendant. They were injured as a result of an explosion at the defendant's
quarry caused by the brothers' negligence. They 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.
Each brother claimed against the defendant based on their employer's vicarious
liability for the negligence and breach of statutory duty of the other brother. The
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 express
instructions. At trial the judge held that the defence of volenti could not apply
where there was breach of a statutory duty. This was upheld in the Court of
Appeal.
Held:

The appeal was allowed. The brothers had deliberately acted in defiance of the
employer's express instructions in full knowledge of the risks. The workers were
under the statutory duty not the employer. The employer had been instrumental
in bringing in the statutory regulations and ensured all workers were aware of
them. They 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 TE Hopkins & Son Ltd [1959] 1 WLR 966 Court of Appeal

Mr Ward and Mr Wileman were employed by the defendant, Hopkins. They had
been called to clean out a well. The well was 50ft deep and 6ft wide. Hopkins
tested the atmosphere in the well by putting a lighted candle down the well. The
candle returned still lighted and thus he concluded the atmosphere was fine. He
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. The motor ran for 1 1/2 hours
before it stopped of its own accord. Before leaving the site Mr Hopkins told Mr
Ward and Mr Wileman not to go down the well until the fumes have cleared.
The following morning Hopkins again told the two not to go down the well until
he had arrived on the site. In breach of these orders Mr. Ward went down the
well and was overcome by fumes. Mr Wileman called for assistance and went
down the well after him. The claimant, Dr Baker, then arrived on the scene. He
too went into the well to seek to rescue the two. Unfortunately all three died of
carbon monoxide poisoning. The defendant contended that the act of the doctor
acted as a novus actus interveniens and sought to invoke volenti non fit injuria.

Held:

The 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. The Claimant's action was not defeated by volenti non fit injuria.
He was and as such his actions did not count as freely and voluntarily accepting
the risk.
Morris LJ:
it was said that Dr. Baker had been "unreasonably" 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 injury to him was not the result of the negligence that
caused the situation of danger. Such a contention cannot be here asserted. Dr.
Baker 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. He in no way acted recklessly or
negligently. In my judgment, the learned Judge came to a correct conclusion in
regard to the claim made by his executors.

Haynes v Harwood [1935] 1 KB 146

The Defendant left a horse-drawn van unattended in a crowded street. The

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. The
police officer was injured. 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 - Suicide

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:

Kirkham v CC Greater Manchester Police [1990] 2 QB 283 Court of Appeal

Mr Kirkham was an alcoholic and suffered from depression. He had made a two
suicide attempts on 6th Jan 1980. He 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. The police were
called and arrested him. His 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. However, the police failed inform the prison
authorities that Mr Kirkham was a suicide risk. He committed suicide whilst on
remand at Risley Remand Centre. His wife brought an action based on the
negligence of the police in failing to pass on the information. The Police raised
the defences of volenti non fit injuria and ex turpi causa.

Held:

The claimant was successful. The defence of volenti non fit injuria, 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. The defence
of ex turpi causa was not limited to illegal acts but extended also to immoral
acts. The 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 citizen.

Lord Justice Lloyd:

Where a man of sound mind injures himself in an unsuccessful suicide attempt,

it is difficult to see why he should not be met by a plea of volenti non fit injuria.
He has not only courted the risk of injury by another; he has inflicted the injury
himself. In Hyde v. Tameside Area Health Authority, the plaintiff, who had
made an unsuccessful suicide attempt, brought an action for damages against
the Health Authority alleging negligence on the part of the hospital staff. Lord
Denning doubted whether a defence of volenti non fit injuria would be available
in such a case "seeing that [the plaintiff] did not willingly injure himself - he
wanted to die". I find that reasoning hard to follow. Any observation of Lord
Denning is, of course, entitled to great weight; but the observation was obiter,
since the court held that the hospital staff had not been negligent. Moreover we
were told by Mr Foster, who happened to have appeared for the plaintiff in that
case, that the point was never argued.

So 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. There should be no distinction between a
successful attempt and an unsuccessful attempt at suicide. Nor should there be
any distinction between an action for the benefit of the estate under the Law
Reform Act and an action for the benefit of dependants under the Fatal
Accidents Act. In so far as Pilcher J. drew a distinction between the two types of
action in Pigney v. Pointers Transport Services Ltd. 1957 2 All E.R. S07, I
would respectfully disagree.

But in the present case Mr Kirkham was not of sound mind. True, he was sane
in the legal sense. His suicide was a deliberate and conscious act. But Dr Sayed,
whose evidence the judge accepted, said that Mr Kirkham was suffering from
clinical depression. His judgment 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 Sayed's
further evidence that, though his judgment was impaired, Mr Kirkham knew
what he was doing. But in the end I have been persuaded by Mr Foster that,
even so, he was not truly volens. Having regard to his mental state, he cannot,
by his act, be said to have waived or abandoned any claim arising out of his
suicide. So I would reject the defence of volenti non fit injuria.

Reeves v Commissioner of Police of the Metropolis [2000] 1 AC 360 House of

Lords

Martin Lynch committed suicide whilst in a police cell. He had attempted

suicide earlier that day in the cells at the magistrates. He had also attempted
suicide on previous occasions. He had been seen by a doctor at the police
station on arrival who reported that he was not schizophrenic or depressed but
was a suicide risk. The custody officer checked him at 1.57 pm and left the
hatch open. He was found at 2.05 pm having used his shirt as a ligature secured
by the open hatch. He was unable to be resuscitated and died a week later. The
defendant argued that as Lynch was of sound mind his voluntary and informed
act of suicide broke the chain of causation.

Held:

The 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. Therefore the defendant was liable, however damages were reduced
by 50% under the Law Reform (Contributory Negligence) Act 1945.

Volenti non fit injuria in context of sporting events

A participant in sporting events is taken to consent to the risk of injury which
occurs in the course of the ordinary performance of the sport.

Wooldridge v Sumner [1963] 2 QB 43

The claimant was a photographer at a horse show. He was situated within the
ring of the horse show and not behind the barriers where the spectators were
housed. He was on a bench with a Miss Smallwood who was a director of the
company which employed the Claimant. He had been taking little interest in the
proceedings and was not experienced 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. The
Claimant took fright at the approach of the galloping horse and attempted
unsuccessfully to pull Miss Smallwood off the bench. He stepped or fell back
into the course of the horse which passed three or few feet behind the bench,
and was knocked down. The Claimant brought an action in negligence arguing
the rider had lost control of the horse and was going too fast. The defendant
raised the defence of volenti non fit injuria.

Held:

There was no breach of duty so the Claimant's action failed. On the issue
of volenti non fit injuria it was held that consent to the risk of injury was
insufficient. There must be consent to the breach of duty in full knowledge of
the nature and extent of the risk.

Diplock LJ:
"The maxim in English law presupposes a tortious act by the defendant. The
consent that is relevant is not consent to the risk of injury but consent to the lack
of reasonable care that may produce that risk… and requires on the part of the
plaintiff at the time at which he gives his consent full knowledge of the nature
and extent of the risk that he ran"

Volenti non fit injuria in relation to drunk drivers

In Dann v Hamilton [1939] 1 KB 509 (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 extreme and so glaring that accepting a lift would be
equivalent of to intermeddling with an unexploded bomb or walking on the edge
of an unfenced cliff.

An example of where this was successfully invoked can be seen:

Dann v Hamilton [1939] 1 KB 509

The Claimant was injured when she was a willing passenger in the car driven by
the Mr Hamilton. He 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.

Held:

The defence was unsuccessful. The claimant was entitled to damages.

Asquith J:

"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. It is not
necessary to decide whether in such a case the maxim 'volenti non fit
injuria' would apply, for in the present case I find as a fact that the driver's
degree of intoxication fell short of this degree".