Defences to negligence - Consent in employment and rescue situations

Learning Outcomes

This article examines the defence of consent, also known as volenti non fit injuria, in the context of negligence claims. It focuses specifically on how this defence operates in employment situations and rescue scenarios. After studying this material, you should understand the core elements required to establish consent, appreciate the significant limitations on this defence within the employment relationship due to factors like economic pressure and statutory duties, and recognise why consent is rarely applicable to rescuers acting out of duty or instinct. This understanding is essential for applying relevant legal principles to SQE1 assessment questions.

SQE1 Syllabus

For SQE1, you must understand the general defences available in negligence claims, including consent (volenti non fit injuria). This involves applying the principles of the defence to specific factual scenarios, particularly those involving employment relationships and rescuers. You should be prepared to:

• Identify the elements required to establish the defence of consent.
• Analyse the limitations on the defence of consent, especially concerning employees and rescuers.
• Distinguish consent from contributory negligence.
• Apply the legal principles relating to consent in employment and rescue situations to multiple-choice questions.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Which of the following is NOT an essential element for the defence of consent (volenti non fit injuria) to succeed?
   1. The claimant had full knowledge of the nature and extent of the risk.
   2. The claimant voluntarily agreed to accept the risk.
   3. The claimant received a benefit for accepting the risk.
   4. The claimant had the capacity to give valid consent.
2. In which famous case was it established that an employee's knowledge of a risk in the workplace does not automatically mean they have consented to that risk?
   1. Haynes v Harwood
   2. Smith v Baker & Sons
   3. ICI Ltd v Shatwell
   4. Baker v TE Hopkins & Son Ltd

3. True or False? The defence of consent is generally applicable to rescuers who are injured while attempting to save others from danger created by the defendant's negligence.

4. Section 149 of the Road Traffic Act 1988 primarily affects the defence of consent in which context?
   1. Employment relationships
   2. Medical treatment
   3. Sporting events
   4. Passengers in road traffic accidents

Introduction

When a claimant establishes the core elements of negligence – duty of care, breach, and causation – the defendant may still avoid liability by successfully raising a defence. One such complete defence is consent, known by the Latin maxim volenti non fit injuria (often shortened to volenti). This principle essentially states that no injury is done to one who consents. However, establishing consent requires more than simply showing the claimant knew of a danger. This article focuses on the application and limitations of this defence in two specific contexts frequently encountered: employment situations and rescue scenarios, highlighting why the defence often fails in these areas.

Key Term: Consent (Volenti Non Fit Injuria)
A complete defence to negligence where the claimant, with full knowledge of the nature and extent of the risk, voluntarily agrees to accept that risk. If successful, it absolves the defendant of all liability.

Elements of Consent

For the defence of volenti to succeed, the defendant must prove three elements:

1. Knowledge of the Risk: The claimant must not only be aware that a risk exists but must also have full understanding of both the nature and the extent of the specific risk they are alleged to have accepted. A general awareness of danger is insufficient.
2. Voluntary Agreement: The claimant's agreement to run the risk must be entirely voluntary, made without compulsion or constraint. This involves having the freedom and capacity to choose whether or not to accept the risk.
3. Acceptance of the Legal Risk: The claimant must have accepted the specific risk of injury caused by the defendant's breach of duty, not just the ordinary risks of an activity.

Worked Example 1.1

Anya visits a paintball centre. Before playing, she signs a form acknowledging the risks of being hit by paintballs and agreeing not to sue if injured during the game. During play, faulty equipment provided by the centre malfunctions, causing a paintball gun to explode and injure Anya. Can the centre rely on the defence of consent?

Answer: Likely no. While Anya consented to the risk of being hit by paintballs during normal play (ordinary risks), she did not consent to the risk of injury from faulty equipment caused by the centre's potential negligence (breach of duty). Her consent form likely wouldn't cover negligence unless very specifically worded and even then may be subject to statutory controls (like UCTA 1977/CRA 2015).

Consent in Employment

The application of volenti in the workplace is heavily restricted. While employees might be aware of risks associated with their jobs, courts are reluctant to find that they have voluntarily consented to injury caused by their employer's negligence.

Limitations on Consent in Employment

Several factors limit the effectiveness of the consent defence against employees:

1. Economic Pressure: Employees often face economic compulsion to continue working despite known risks. Fear of dismissal or lack of alternative employment means their acceptance of risk may not be truly voluntary.
2. Employer's Duty of Care: Employers owe employees a common law duty (and statutory duties) to provide a safe workplace, safe equipment, and a safe system of work. This duty cannot easily be negated by arguing the employee consented to risks created by the employer's breach of this duty.
3. Knowledge vs. Consent: The principle established in Smith v Baker & Sons [1891] AC 325 remains key: an employee's knowledge of danger does not equate to consent to the risk of injury arising from the employer's negligence. Continuing to work despite danger is not conclusive proof of voluntary assumption of the legal risk.

Worked Example 1.2

Chen works in a factory where a machine guard is known to be defective. His employer, FastTrack Ltd, has been informed but has delayed repairs. Chen continues to operate the machine because he needs the job. He is subsequently injured due to the defective guard. FastTrack Ltd argues Chen consented to the risk by continuing to work. Is this defence likely to succeed?

Answer: Unlikely. Chen's continuation of work was likely influenced by economic necessity. He knew the risk (defective guard) but did not voluntarily accept the legal risk of injury arising from his employer's negligence (failure to repair). The employer's duty to provide safe equipment likely overrides any implied consent.

Exam Warning

Do not confuse an employee's awareness of workplace risks with genuine consent to the employer's negligence. Employers have significant duties regarding workplace safety that are difficult to bypass using the volenti defence. Statutory duties, particularly under health and safety legislation, further strengthen the employer's responsibilities.

Consent in Rescue Situations

Rescuers – those who intervene to help others in danger – are generally treated favourably by the law, and the defence of volenti is rarely successful against them.

Rationale for Limited Application

The courts recognise that rescuers often act out of impulse, moral duty, or social obligation rather than through calm, voluntary deliberation. Key reasons why volenti usually fails against rescuers include:

1. Lack of True Volition: Rescuers often act instinctively or feel compelled by the situation ('danger invites rescue'). Their decision is not typically a free and voluntary choice in the sense required for consent.
2. Duty/Moral Imperative: Many rescuers (e.g., police officers, firefighters, doctors, or even ordinary citizens) act under a perceived or actual duty to assist. The law does not penalise individuals for acting on such compulsions. See Haynes v Harwood [1935] 1 KB 146, where a police officer injured stopping runaway horses was held not to have consented.
3. Foreseeability: It is generally foreseeable that someone might attempt a rescue if a defendant's negligence creates a dangerous situation. The defendant owes a duty to the rescuer.

Key Term: Rescuer
An individual who intervenes to assist someone imperilled by the defendant's negligence or another cause. The law generally protects rescuers from the defence of consent.

Worked Example 1.3

David negligently starts a fire in his workshop. His neighbour, Eva, sees the flames spreading towards David's house, where she knows his children are sleeping. She rushes in to alert them and suffers burns. David argues Eva consented to the risk by entering the burning building. Will this defence succeed?

Answer: Unlikely. Eva acted as a rescuer motivated by the immediate danger to the children. Her actions were likely driven by moral compulsion, not a free choice to accept the risk of being burned due to David's negligence. The defence of volenti would almost certainly fail. See Baker v TE Hopkins & Son Ltd [1959] 1 WLR 966.

Revision Tip

While volenti is a complete defence, its application is very fact-specific and limited, especially in employment and rescue contexts. Contributory negligence, a partial defence reducing damages based on the claimant's own carelessness for their safety, is often more relevant and successful in these situations. Remember to distinguish between the two.

Statutory Restriction: Road Traffic Act 1988

It is important to note that s 149 of the Road Traffic Act 1988 prevents the defence of volenti being used against passengers injured due to the driver's negligence in circumstances where insurance is compulsory (which covers most passenger scenarios). This reflects a policy decision to protect passengers, even if they accept a lift knowing the driver is, for example, intoxicated. Contributory negligence might still apply to reduce the passenger's damages.

Key Point Checklist

This article has covered the following key knowledge points:

• The defence of consent (volenti non fit injuria) requires the claimant to have knowledge of the risk, voluntarily agreed to it, and accepted the legal risk of the defendant's negligence.
• Volenti is a complete defence, but its application is restricted.
• In employment, the defence is rarely successful due to economic pressures limiting free choice and the employer's overriding duties of care (Smith v Baker & Sons principle).
• Knowledge of risk by an employee does not equate to consent to the employer's negligence.
• Rescuers are generally protected from the volenti defence as they often act out of duty or compulsion, not free choice (Haynes v Harwood principle).
• The Road Traffic Act 1988, s 149, statutorily prevents the use of volenti against most passengers injured by negligent drivers.
• Contributory negligence is often a more relevant defence than volenti in employment and rescue situations.

Key Terms and Concepts

• Consent (Volenti Non Fit Injuria)
• Rescuer