Defences to negligence - Voluntary assumption of risk

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Overview

The doctrine of voluntary assumption of risk, known as volenti non fit injuria, is a significant defense in negligence law. It suggests that those who willingly accept known risks cannot claim compensation for resulting injuries. For SQE1 FLK1 candidates, understanding this defense is essential, as it relates to core ideas of consent, duty of care, and public policy. This article delves into its key elements, applications, and limitations, offering essential guidance for handling complex negligence scenarios in both exams and future practice.

The Doctrine of Volenti Non Fit Injuria

Core Concept

The principle volenti non fit injuria, meaning "to one who is willing, no harm is done," supports this defense. It rests on the idea that the law should not protect individuals from consequences they willingly embrace. If successfully argued, this defense fully dismisses a negligence claim, removing the defendant's liability.

Legal Requirements

Two main elements must be proven for this defense to work:

  1. Knowledge of Risk: The claimant must fully understand the nature and extent of the risk.
  2. Voluntary Consent: The claimant must willingly accept the risk.

These elements present a high standard, highlighting the courts' careful approach to denying claimants the right to compensation.

Knowledge of Risk

Required Understanding

The claimant's knowledge needs to be clear and specific. General awareness of danger is not enough; the claimant must recognize the particular risk that occurred. In Bowater v Rowley Regis Corporation [1944] KB 476, Lord Justice Scott stated that the claimant must have "a full and free opportunity of exercising his own will and choice."

Evaluating Knowledge

Courts consider several factors to assess if the necessary knowledge was present:

  • The claimant's experience and familiarity with the activity
  • Any warnings or information from the defendant
  • The obviousness of the risk

In Morris v Murray [1991] 2 QB 6, the claimant's awareness of the pilot's intoxication was enough to show knowledge of the specific risk of flying.

Voluntary Consent

Freedom of Choice

Consent must be freely given, without pressure. Courts look at whether the claimant had a real choice in accepting the risk. This is often difficult to prove in certain relationships, especially in workplaces.

Types of Consent

Consent can be either express or implied:

  • Express Consent: Usually shown by signed waivers or explicit agreements.
  • Implied Consent: Deduced from the claimant's actions, such as participating in dangerous activities.

However, courts are cautious about inferring consent, especially when public policy issues arise.

Distinguishing Volenti from Contributory Negligence

It's important to separate volenti from contributory negligence:

  • Volenti: Completely removes the defendant's liability.
  • Contributory negligence: Partially reduces the defendant's liability based on the claimant's own actions.

Where volenti fails, courts may consider contributory negligence to allocate fair blame.

Legal Precedents and Case Law

Nettleship v Weston [1971] 2 QB 691

This important case involved a learner driver who injured her instructor. The Court of Appeal rejected the volenti defense, stressing that knowing the risks of driving was not the same as consenting to negligence.

Key points:

  • Clarifies the difference between accepting inherent risks and consent to negligence
  • Shows the high standard for proving voluntary assumption of risk

Morris v Murray [1991] 2 QB 6

Here, the claimant chose to fly with a drunk pilot after a day of drinking. The Court of Appeal upheld the volenti defense, finding the claimant fully aware and accepting of the extraordinary risk.

Key points:

  • Highlights situations where volenti can succeed
  • Stresses the importance of specific knowledge and clear voluntary action

Special Considerations and Limitations

Employment Context

The defense rarely succeeds in workplaces due to the power imbalance between employers and employees. In Smith v Baker & Sons [1891] AC 325, the House of Lords dismissed the defense as the employee continued working despite knowing the dangers, emphasizing economic pressures.

Rescuers and Social Duty

The law usually protects rescuers from the volenti defense, recognizing the necessity of rescue efforts. In Haynes v Harwood [1935] 1 KB 146, a policeman hurt while stopping runaway horses was not denied his claim, as his actions were a natural response to negligence.

Participation in Sports

Athletes accept risks inherent in their sports, but injuries from reckless actions exceed these limits. In Condon v Basi [1985] 1 WLR 866, a player was liable for a hazardous tackle, showing that volenti doesn't cover misconduct beyond the usual play.

Statutory Limitations

Laws have restricted volenti in some areas:

  • Road Traffic Act 1988, Section 149: This provision nullifies consent defenses for passengers in insured vehicles, highlighting public safety concerns.

This legal intervention illustrates the ongoing debate between personal responsibility and community protection in negligence law.

Practical Application and Exam Relevance

For SQE1 FLK1 candidates, understanding volenti non fit injuria is key for:

  1. Analyzing intricate negligence cases
  2. Assessing the strength of defenses
  3. Recognizing legal principles and public policy interactions

When tackling exam questions:

  • Evaluate the claimant's knowledge and voluntary actions
  • Consider the context (e.g., employment, sports) and relevant laws
  • Explore alternative defenses or liability sharing

Conclusion

The defense of voluntary assumption of risk is a challenging aspect of negligence law. Proving it requires clear evidence of both complete knowledge and true voluntary consent to risk. For SQE1 FLK1 candidates, mastering this defense involves understanding its theoretical basis, recognizing its limitations, and appreciating its interplay with broader legal issues.

Key points to remember:

  • Volenti non fit injuria demands specific knowledge of risk and voluntary consent
  • It's a complete defense, different from contributory negligence
  • Its use varies across contexts, with restrictions in employment and rescue cases
  • Case law shows the high bar for establishing the defense
  • Legal changes reflect ongoing policy debates
  • Understanding volenti is vital for complex negligence analysis in the SQE1 FLK1 exam