Negligence - Defences: Volenti Non fit Injuria Flashcards
Volenti non fit injuria: PRINCIPLE
If D can show that C:
1 - had knowledge of the risk of injury AND
2 - voluntarily decided to take that risk
(^^BOTH MUST BE PROVED - Dann v Hamilton)
OR
1 - agreed to exclude D’s liability
THEN D WILL HAVE A COMPLETE DEFENCE
D must prove C actually knew of the risk
Test is subjective not objective:
Smith v Austin Lifts Ltd:
> ‘He must know and appreciate the full extent of the danger.’
Essentially says it doesn’t matter whether objectively a reasonable man would realise the risk but rather subjectively that C must know and appreciate the full extent of danger
Knowledge of a risk is different from being mistaken about it
Smith v Austin Lifts Ltd:
‘If a man, faced with a dangerous means of getting across a gap, mistakes the risk, saying to himself: “I know it is a bit risky, but so long as I am careful I shall be alright” [the defence will not apply]. But if he truly measures the risk, saying: “No matter how careful I am, it is very likely I shall fall” and still goes on, he cannot recover [because the defence will apply].’
If C is mistaken about the risk then the defence will not be apply HOWEVER if C has measured up the risks and KNOWS of the potential danger then the defence will apply
3 elements that D needs to prove C had knowledge of
1 - existence of risk
2 - extent of risk
3 - nature of risk
Dann v Hamilton 1939:
> D must prove C consented to the risk of injury not the certainty of injury
How free should C’s choice be?
Bowater v Rowley Regis Corporation 1944:
> ‘A man cannot be said to be truly willing unless he is in a position to choose freely, and freedom of choice predicates, not only full knowledge of the circumstances on which the exercise of choice is conditioned, so that he may be able to choose wisely, but the absence from his mind of any feeling of constraint so that nothing shall interfere with the freedom of his will.’
There should be no constraint on their minds
Have genuine freedom of choice
Wider approach to volenti non fit injuria - KNOWLEDGE = AGREEMENT TO TAKE THE RISK
Morris v Murray 1991 - almost equates to ‘knowledge’ with ‘voluntary agreement’
Narrow Approach to volenti non fit injuria - REQUIRE AN AGREEMENT TO EXCLUDE LIABILITY OR WAIVE A CLAIM
Nettleship v Weston 1971 - ‘knowledge of the risk of injury is not enough. Nor is a willingness to take the risk of injury. Nothing will suffice short of an agreement to waive a claim for negligence.’
C. needs to have done more than put themselves in a situation which a reasonable man would regard as dangerous: the test is subjective.’
(Volenti cannot be used as a defence by a driver against a claim by a passenger in a vehicle which is required to have compulsory motor insurance: Road Traffic Act 1988, s.149(3).
Typical areas where volenti is argued - EMPLOYEES (voluntary decision making)
Smith v Charles Baker & Sons Ltd:
> It is rare for a volenti defence to succeed against an employee
> Merely continuing to work in a situation which involves a risk is not usually ‘voluntary’ enough
Typical areas where volenti is argued - EMPLOYEES (voluntary decision making) - ICI Ltd v Shatwell
However, if, without pressure, an employee voluntarily chooses a dangerous working method, this may be enough for the defence:
ICI Ltd v Shatwell (1965) HL:
> 2 employees working with explosives
> Knew of risks of not using a shelter
> Knew D. required a shelter
> Knew D disciplined non-use
> Both disobeyed the rules
> Both were injured in an explosion
> The employer could do nothing more.
Employees knew of the risks and volenti applied here
Typical areas where volenti is argued - SELF HARM (voluntary decision making)
How much freedom of choice does a person have when self-harming or committing suicide?
If mental health issues:
> take away mental capacity, an act of suicide may not be sufficiently ‘voluntary’ for volenti to apply: Kirkham v Chief Constable of the Greater Manchester Police (1990)
> do not take away mental capacity, an act of suicide may be sufficiently ‘voluntary’ for volenti to apply: but maybe not so in ‘custodian’ cases where there is a duty to prevent suicide : Reeves v Metropolitan Police Commissioner (1999) HL.
Typical areas where volenti is argued - SPECTATORS (voluntary decision making)
Wooldridge v Sumner (1963):
> ‘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 judgment or lapse of skill, unless the participant’s conduct is such as to evince a reckless disregard of the spectator’s safety.’
Effect is not entirely clear. Some risk might be accepted, but not every risk.
Narrow Approach - Waiving a claim
If D. can show that C. knew of the risk of injury and voluntarily decided to take the risk or exclude D.’s liability, D. will have a complete defence.
The exclusion of D.’s liability needs to be ‘voluntary’ in the same way as the voluntariness to run the risk
The exclusion of liability could be:
> Before D.’s breach of duty; or
> After D.’s breach of duty
