Defences to negligence - Consent (volenti non fit injuria)

Learning Outcomes

After reading this article, you will be able to explain the defence of consent (volenti non fit injuria) in negligence, identify its strict requirements, distinguish it from contributory negligence, and apply the relevant legal principles to SQE1-style scenarios. You will also be able to spot common pitfalls and understand when the defence is likely to succeed or fail in practice.

SQE1 Syllabus

For SQE1, you are required to understand the defence of consent (volenti non fit injuria) as it applies to negligence. In your revision, focus on:

• the meaning and requirements of the consent defence in negligence
• how the courts interpret knowledge of risk and voluntary acceptance
• the difference between consent and contributory negligence
• the practical application of the defence in typical scenarios (e.g., employment, sports, and road traffic)
• situations where the defence is excluded by statute or public policy

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. What two elements must a defendant prove to establish the defence of consent (volenti non fit injuria) in negligence?
2. True or false? Merely knowing about a risk is enough for the defence of consent to succeed.
3. In what types of situations is the defence of consent most likely to fail?
4. How does the defence of consent differ from contributory negligence?
5. Can a passenger in a car accident ever be prevented from claiming damages on the basis of consent?

Introduction

Consent (volenti non fit injuria) is a complete defence to a claim in negligence. If established, it means the defendant is not liable for the claimant’s loss. The defence is rarely successful because the courts apply it strictly. For SQE1, you must know the requirements for consent, how it is distinguished from contributory negligence, and the main situations where it is likely to arise.

Key Term: consent (volenti non fit injuria) Consent is a defence to negligence where the claimant freely and knowingly agrees to accept the risk of harm, so the defendant is not liable for resulting injury.

Requirements for the Defence of Consent

To rely on consent, the defendant must prove both of the following:

1. The claimant had full knowledge of the nature and extent of the risk.
2. The claimant voluntarily agreed to accept that risk.

The burden of proof is on the defendant. Both elements must be satisfied for the defence to succeed.

Key Term: knowledge of the risk The claimant must be aware of the specific risk that materialises, not just a general awareness of danger.

Key Term: voluntary acceptance The claimant must freely choose to accept the risk, without pressure, compulsion, or lack of real choice.

Knowledge of the Risk

The claimant must understand the actual risk that causes the harm. General awareness is not enough. The claimant must appreciate the precise risk that materialises.

Voluntary Acceptance

The claimant’s acceptance must be genuine and made of their own free will. If the claimant had no real choice (e.g., due to economic necessity or pressure), the defence will fail.

Consent Is Interpreted Strictly

Courts are reluctant to deprive claimants of compensation unless there is clear evidence of both knowledge and voluntary acceptance. The defence is rarely available in employment, rescue, or road traffic cases.

Worked Example 1.1

A passenger accepts a lift from a friend who has been drinking. The passenger knows the driver is over the legal limit. The car crashes and the passenger is injured. Can the driver rely on consent as a defence?

Answer: No. The passenger’s knowledge of the risk is not enough. There must also be clear evidence that the passenger agreed to waive any claim for negligence. In addition, statute (Road Traffic Act 1988, s 149) prevents the use of consent as a defence by drivers to claims by passengers.

Worked Example 1.2

A spectator at a football match is injured by a ball kicked into the stands. Can the club rely on consent as a defence?

Answer: Possibly. Spectators are generally taken to accept the ordinary risks of the sport, such as being hit by a ball. However, if the injury is caused by something outside the normal risks (e.g., dangerous stadium conditions), the defence will not apply.

Exam Warning

The defence of consent is a complete defence. If successful, the claimant recovers nothing. However, courts are reluctant to apply it and will often prefer to reduce damages for contributory negligence instead. Do not confuse the two defences in your exam answers.

Consent in Practice

Employment Situations

Consent almost never succeeds in employment cases. Employees rarely have a real choice about accepting risks at work. Continuing to work in dangerous conditions is not treated as consent.

Rescuers

Rescuers are not considered to have consented to the risk of injury when acting in an emergency. The law does not penalise those who act bravely to help others.

Road Traffic Accidents

Statute prevents drivers from relying on consent as a defence to claims by passengers (Road Traffic Act 1988, s 149). This applies even if the passenger knew the driver was unfit or uninsured.

Sports and Voluntary Activities

Participants and spectators are generally taken to accept the ordinary risks of the sport or activity. However, consent does not cover risks arising from negligence outside the normal conduct of the activity (e.g., dangerous equipment, foul play).

Medical Treatment

A patient who gives informed consent to medical treatment cannot later sue for harm resulting from the agreed risks. However, if the patient was not properly informed, the defence will not apply.

Consent vs Contributory Negligence

Consent is a complete defence. If established, the claimant recovers nothing. Contributory negligence is a partial defence. If the claimant is partly at fault, damages are reduced to reflect their share of responsibility.

Key Term: contributory negligence Where the claimant’s own carelessness contributes to their injury, damages are reduced proportionally.

Summary Table: Consent vs Contributory Negligence

Revision Tip

Always check if the facts support contributory negligence rather than consent. Courts prefer to reduce damages rather than deny all compensation.

Key Point Checklist

This article has covered the following key knowledge points:

• Consent (volenti non fit injuria) is a complete defence to negligence, but is rarely successful.
• The defendant must prove the claimant knew the precise risk and voluntarily accepted it.
• Knowledge of risk alone is not enough; voluntary acceptance is also required.
• Consent is unlikely to succeed in employment, rescue, or road traffic cases.
• Courts often prefer to apply contributory negligence, which reduces damages, rather than consent, which is a total bar to recovery.
• Statute may exclude the defence in some situations (e.g., Road Traffic Act 1988, s 149).

Key Terms and Concepts

• consent (volenti non fit injuria)
• knowledge of the risk
• voluntary acceptance
• contributory negligence