2B.6.2 Volenti non fit injuria Flashcards
Volenti non fit injuria
Consent or volenti non fit injuria is a full defence to a claim of negligence or occupiers’ liability, when the defendant shows that the claimant voluntarily accepted a risk of harm or injury.
The phrase means that no injury is done to one who consents to the risk. If successful, the claimant will receive no damage.
What sort of defence is volenti non fit injuria?
A full defence, the negligence claim will fail if proved.
How does volenti operate?
To succeed, the defendant has to show that the claimant has:
1) Knowledge of the actual risk.
2) The capacity to make the choice (free will).
3) Voluntarily accepted the risk.
All three must be present for volenti non fit injuria (consent) and negligence claim will fail.
[Volenti non fit injuria]
Stermer v Lawson (1977)
The claimant borrowed a motorbike and didn’t know the risk as they were not shown how to use it.
This meant they did not consent to the risk.
[Volenti non fit injuria]
Morris v Murray (1991)
Two friends went drinking together. After a few, one suggested they take a ride in his light aircraft.
The plane crashed, killing the pilot and seriously injuring the claimant. The claim failed because the claimant knew of the risk (volenti non fit injuria).
[Volenti non fit injuria]
Smith v Baker (1977)
Rocks fell from a crane, injuring the claimant.
The claimant knew of the risk and complained but did not consent, meaning there was no volenti non fit injuria.
Volenti with a duty to act
People with a duty to act may know the actual risk but are not acting from free will and voluntary acceptance.
Volenti would not be available as a defence. As seen in:
* Haynes v Harwood (1935)
* Ogwo v Taylor (1987)
[Volenti with a duty to act]
Haynes v Harwood (1935)
It was held that volenti non fit injuria was not available for police acting under duty.
[Volenti with a duty to act]
Ogwo v Taylor (1987)
It was held that volenti non fit injuria was not available for firefighters acting under duty.
[Volenti non fit injuria]
Sidaway v Governors of the Bethlem Royal and Maudsley Hospitals
The claimant was paraplegic after surgery and C claims her doctor was negligent. The doctor claimed the defence of volenti (she accepted the risk). The claimant was not told about the less than 1% chance of becoming paraplegic and said she did not consent (the defendant could not use volenti).
Held: D could use volenti because he told her the major risks and did not need to get consent for risks that are “too remote”.
[Volenti non fit injuria]
IVI Ltd v Shatwell (1965)
Two brothers, who worked for a quarrying company disobeyed their employer’s instructions and mandatory regulations. and tested the electric circuit with the insufficient wiring, causing them to sustain injuries.
The defendant claimed volenti non fit injuria and succeeded.
[Volenti non fit injuria]
Darnley v Croydon Health Services NHS Trust (2018)
V had a head injury and went into A&E. The A&E receptionist gave incorrect information on waiting times and went home. V’s condition worsened and returned to A&E in a hospital and as a result he suffered a permanent brain injury.
Held: V’s injuries would have been avoided but for the receptionist telling him the wrong information. Held: A duty of care was established from a patient-hospital relationship. An averagely competent and well-informed A&E receptionist would not have provided incorrect information.
