Defences (Volenti) Flashcards
Volenti non fit injuria
Volenti non fit injuria (no injury can be done to a willing person) is a defence which applies where the claimant has in some way consented to what was done by the defendant, on the basis that in giving consent the claimant was voluntarily taking the risk of harm. It is a complete defence. The test of consent is objective.
Consent
To see whether the claimant has consented, the courts look to the claimant’s outward behaviour as evidence. Consent will only amount to a defence if it is freely given; consent given under pressure is not a defence.
Smith v Baker 1891 (consent)
The defendant was negligently using a crane so that stones swung above the claimant’s head. The claimant was aware of this and had complained about it to his employer, but with no success. Sure enough one did fall and the court said volenti cannot be raised here, as continuing to do work that was not in itself dangerous, but was made so by the employer’s negligence, did not qualify as consent.
Imperial Chemical Industries v Shatwell 1965 (consent)
The claimant was told by the defendants to take certain precautions when testing detonators. The claimants decided to do the test without taking the precautions and this resulted in an explosion. The defendants were able to raise the defence of volenti as the claimant was fully aware of the risk he was taking, and had clearly consented to it.
Kirkham v Chief Constable of Greater Manchester (1990),
The claimant must be mentally capable of giving consent.
A man committed suicide while in police custody, the police had known he was a suicide risk and failed to prevent him taking his own life. The court said that volenti could not apply here as the claimant had not been of sound mind.
Reeves v Commissioner of Police for the Metropolis (1999) mental
The dead man was found to have been of sound mind, but nevertheless, the court said volenti could not apply, as the act the police were basing the defence on – the suicide – was the exact act they had a duty to prevent.
Passengers
The Road Traffic Act 1988, as interpreted by the courts, effectively excludes the use of volenti to allow drivers to avoid liability to passengers. s.149 provides that any attempt to avoid liability to passengers will be ineffective.
Pitts v Hunt 1991
The claimant was a passenger on a motorbike driven by the defendant, who knew that the defendant was uninsured and had been drinking, but encouraged him to drive in a dangerous way. The court held that the defendant could not rely volenti because of the Road Traffic Act (in fact illegality was successfully pleaded, so the defendant was not liable).
Important info on traffic and volenti
Where the claim falls under the Road Traffic Acts, volenti cannot be used as a defence because the defendant must have insurance, as it is compulsory. However, contributory negligence is commonly used. This means that the claimant benefits from this defence as the defendant can never be completely blameless. The defences appears to shift the loss from the insurance company to the wider public who take out insurance. For this reason, among others, the Pearson Commission wanted to abolish the defence, as in Scandinavia.
Sport
Where an injury is received by a player during a lawful game or sport, played according to the rules, volenti can apply, as players are deemed to have voluntarily taken the risk of injury.
Simms v Leigh Rugby Football Club 1969, sport
The claimant broke his leg when he was tackled and thrown against a wall. The courts held that volenti applied as it occurred within the rules of the game.
Wooldridge v Sumner (1963), sport
It was held that spectators at sporting events have voluntarily assumed the risk of harm caused by the players, providing it does not result from intentional or reckless behaviour.
Smoldon v Whitworth (1996), sport
The rules of a rugby match included that there should be no collapsed scrums. The referee failed to prevent one, and the claimant was injured. The referee failed to rely on volenti, as did not consent to the breach of duty in failing to apply the rules.
Blake v Galloway (2004), sport
Two teenagers were playing and throwing bark chippings at each other and the claimant was hit in the eye. Volenti could not apply here, as the court held that someone who voluntarily takes part in rough horseplay can only succeed in negligence if the other’s behaviour falls below an acceptable level.
Rescuer
Where a defendant’s negligence causes an emergency, and as a result the claimant consciously and deliberately takes a risk in order to rescue someone in imminent danger, the defence of volenti will not apply. This is because a rescuer is deemed to be acting instinctively due to their moral or social conscience, and therefore not exercising genuine freedom of choice.
