HOME

TheInfoList



OR:

''Volenti non fit iniuria'' (or ''injuria'') (
Latin Latin (, or , ) is a classical language belonging to the Italic languages, Italic branch of the Indo-European languages. Latin was originally a dialect spoken in the lower Tiber area (then known as Latium) around present-day Rome, but through ...
: "to a willing person, injury is not done") is a
common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omniprese ...
doctrine which states that if someone willingly places themselves in a position where harm might result, knowing that some degree of harm might result, they are not able to bring a claim against the other party in
tort A tort is a civil wrong that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. Tort law can be contrasted with criminal law, which deals with criminal wrongs that are punishable ...
or delict. ''Volenti'' applies only to the risk which a reasonable person would consider them as having assumed by their actions; thus a boxer consents to being hit, and to the injuries that might be expected from being hit, but does not consent to (for example) his opponent striking him with an iron bar, or punching him outside the usual terms of boxing. ''Volenti'' is also known as a "voluntary assumption of risk". ''Volenti'' is sometimes described as the plaintiff "consenting to run a risk". In this context, ''volenti'' can be distinguished from legal consent in that the latter can prevent some torts arising in the first place. For example, consent to a medical procedure prevents the procedure from being a trespass to the person, or consenting to a person visiting one's land prevents them from being a
trespass Trespass is an area of tort law broadly divided into three groups: trespass to the person, trespass to chattels, and trespass to land. Trespass to the person historically involved six separate trespasses: threats, assault, battery, woundi ...
er.


History

''Volenti non fit injuria'' is an often-quoted form of the legal maxim formulated by the Roman jurist
Ulpian Ulpian (; la, Gnaeus Domitius Annius Ulpianus; c. 170223? 228?) was a Roman jurist born in Tyre. He was considered one of the great legal authorities of his time and was one of the five jurists upon whom decisions were to be based according to ...
which reads in original: ''Nulla iniuria est, quæ in volentem fiat.''


English law

In
English tort law English tort law concerns the compensation for harm to people's rights to health and safety, a clean environment, property, their economic interests, or their reputations. A "tort" is a wrong in civil, rather than criminal law, that usually requ ...
, ''volenti'' is a full defence, i.e. it fully exonerates the defendant who succeeds in proving it. The defence has two main elements: *The claimant was fully aware of all the risks involved, including both the nature and the extent of the risk; and *The claimant expressly (by statement) or implicitly (by actions) consented to waive all claims for damages. Knowledge of the risk is not sufficient: ''sciens non est volens'' ("knowing is not volunteering"). Consent must be free and voluntary, i.e. not brought about by duress. If the relationship between the claimant and defendant is such that there is doubt as to whether the consent was truly voluntary, such as the relationship between workers and employers, the courts are unlikely to find ''volenti''. It is not easy for a defendant to show both elements and therefore comparative negligence usually constitutes a better defence in many cases. Note however that comparative negligence is a partial defence, i.e. it usually leads to a reduction of payable damages rather than a full exclusion of liability. Also, the person consenting to an act may not always be negligent: a bungee jumper may take the greatest possible care not to be injured, and if he is, the defence available to the organiser of the event will be ''volenti'', not comparative negligence. Consent to medical treatment or consent to risky sportsSee ''Condon v Basi'' 9851 W.L.R. 866 on the part of the claimant excludes liability in tort where that consent is informed consent.


Other jurisdictions

The
Scots law Scots law () is the legal system of Scotland. It is a hybrid or mixed legal system containing civil law and common law elements, that traces its roots to a number of different historical sources. Together with English law and Northern Ireland ...
of delict similarly recognises the principle and defence of ''volenti non fit injuria''. US tort law has a similar legal principle known as assumption of risk. In Canada, the "''volentio''" principles applies in much the same way as under English law. The leading Canadian cases on point are '' Dube v. Labar'', 9861 SCR 649 and '' Hall v. Hebert'', 9932 SCR 159.Volenti
/ref>


Cases


Trespassers

The
Occupiers' Liability Act 1984 The Occupiers' Liability Act 1984 (c. 3) is an Act of the Parliament of the United Kingdom that covers occupiers' liability for trespassers. In '' British Railways Board v Herrington'' 1972 AC 877, the House of Lords had decided that occupiers ...
(and in Scotland the Occupiers' Liability (Scotland) Act 1960) requires all owners of property to take reasonable steps to make their premises safe for anyone who enters them, even those who enter as trespassers, if they are aware of a risk on the premises. However, the doctrine of ''volenti'' has been applied to cases where a trespasser exposed themselves deliberately to risk: * '' Titchener v British Railways Board'' 9831 WLR 1427 * '' Ratcliff v McConnell''
997 Year 997 ( CMXCVII) was a common year starting on Friday (link will display the full calendar) of the Julian calendar. Events By place Japan * 1 February: Empress Teishi gives birth to Princess Shushi - she is the first child of the ...
EWCA Civ 2679 * '' Tomlinson v Congleton Borough Council'' 003UKHL 47 In the first case (decided before the Occupier's Liability Act was passed), a girl who had trespassed on the railway was hit by a train. The House of Lords ruled that the fencing around the railway was adequate, and the girl had voluntarily accepted the risk by breaking through it. In the second case, a student who had broken into a closed swimming-pool and injured himself by diving into the shallow end was similarly held responsible for his own injuries. The third case involved a man who dived into a shallow lake, despite the presence of "No Swimming" signs; the signs were held to be an adequate warning.


Drunk drivers

The defence of ''volenti'' is now excluded by statute where a passenger was injured as a result of agreeing to take a lift from a drunk car driver. However, in a well-known case of ''Morris v Murray''
990 Year 990 ( CMXC) was a common year starting on Wednesday (link will display the full calendar) of the Julian calendar. Events By place Europe * Al-Mansur, ''de facto'' ruler of Al-Andalus, conquers the Castle of Montemor-o-Velho (mode ...
3 All ER 801 (
Court of Appeal A court of appeals, also called a court of appeal, appellate court, appeal court, court of second instance or second instance court, is any court of law that is empowered to hear an appeal of a trial court or other lower tribunal. In much ...
), ''volenti'' was held to apply to a drunk passenger, who accepted a lift from a drunk pilot. The pilot died in the resulting crash and the passenger who was injured, sued his estate. Although he drove the pilot to the airfield (which was closed at the time) and helped him start the engine and tune the radio, he argued that he did not freely and voluntarily consent to the risk involved in flying. The Court of Appeal held that there was consent: the passenger was not so drunk as to fail to realise the risks of taking a lift from a drunk pilot, and his actions leading up to the flight demonstrated that he voluntarily accepted those risks.


Rescuers

For reasons of policy, the courts are reluctant to criticise the behaviour of rescuers. A rescuer would not be considered '' volens'' if: #He was acting to rescue persons or property endangered by the defendant’s negligence; #He was acting under a compelling legal, social or moral duty; and #His conduct in all circumstances was reasonable and a natural consequence of the defendant’s negligence. An example of such a case is '' Haynes v. Harwood'' 9351 KB 146, in which a policeman was able to recover damages after being injured restraining a bolting horse: he had a legal and moral duty to protect life and property and as such was not held to have been acting as a volunteer or giving willing consent to the action - it was his contractual obligation as an employee and police officer and moral necessity as a human being to do so, and not a wish to volunteer, which caused him to act. In this case the court of appeal affirmed a judgement in favor of a policeman who had been injured in stopping some runaway horses with a van in a crowded street. The policeman who was on duty, not in the street, but in a police station, darted out and was crushed by one of the horses which fell upon him while he was stopping it. It was also held that the rescuer's act need not be instinctive in order to be reasonable, for one who deliberately encounters peril after reflection may often be acting more reasonably than one who acts upon impulse. By contrast, in '' Cutler v. United Dairies''
933 Year 933 ( CMXXXIII) was a common year starting on Tuesday (link will display the full calendar) of the Julian calendar. Events By place Europe * Spring – Hugh of Provence, king of Italy, launches an expedition to Rome to remo ...
2 KB 297 a man who was injured trying to restrain a horse was held to be ''volens'' because in that case no human life was in immediate danger and he was not under any compelling duty to act. Also, although to be a "neighbour" within Lord Atkin's dictum, a claimant must be "so closely and directly affected by one's act that one ought reasonably to have them in contemplation", rescuers are invariably deemed to be neighbours, even if their presence would objectively seem to be somewhat unlikely - '' Baker v Hopkins'' 9593 All ER 225 (CA).


Unsuccessful attempts to rely on ''volenti''

Examples of cases where a reliance on ''volenti'' was unsuccessful include: * '' Nettleship v. Weston''
971 Year 971 ( CMLXXI) was a common year starting on Sunday (link will display the full calendar) of the Julian calendar. Events By place Byzantine Empire * Battle of Dorostolon: A Byzantine expeditionary army (possibly 30–40,000 men ...
3 All ER 581 (Court of Appeal) * '' Baker v T E Hopkins & Son Ltd'' 9593 All ER 225 (Court of Appeal). : In the first case, the
plaintiff A plaintiff ( Π in legal shorthand) is the party who initiates a lawsuit (also known as an ''action'') before a court. By doing so, the plaintiff seeks a legal remedy. If this search is successful, the court will issue judgment in favor of t ...
was an instructor who was injured while teaching the defendant to drive. The defence of ''volenti'' failed: that is, because the plaintiff specifically inquired if the defendant's insurance covered him before agreeing to teach. In the second case, a doctor went in to try to rescue workmen who were caught in a well after having succumbed to noxious fumes. He did so despite being warned of the danger and told to wait until the fire brigade arrived. The doctor and the workmen all died. The court held that it would be "unseemly" to hold the doctor to have consented to the risk simply because he acted promptly and bravely in an attempt to save lives. Generally courts are reluctant to recognise voluntary assumption of risk. An example of a court reluctant to find a voluntary assumption of risk includes Carey v Lake Macquarie City Council
007 The ''James Bond'' series focuses on a fictional British Secret Service agent created in 1953 by writer Ian Fleming, who featured him in twelve novels and two short-story collections. Since Fleming's death in 1964, eight other authors have ...
NSWCA 4. Instead the conduct amounted to
contributory negligence In some common law jurisdictions, contributory negligence is a defense to a tort claim based on negligence. If it is available, the defense completely bars plaintiffs from any recovery if they contribute to their own injury through their own negl ...
, which is not a complete defence.


See also

*
Acts of the claimant In the English law of negligence, the acts of the claimant may give the defendant a defence to liability, whether in whole or part, if those acts unreasonably add to the loss. The principles In the normal course of events, the defendant is liabl ...
* Assumption of risk * Consent *'' Ex turpi causa non oritur actio'' *
List of Latin phrases __NOTOC__ This is a list of Wikipedia articles of Latin phrases and their translation into English. ''To view all phrases on a single, lengthy document, see: List of Latin phrases (full)'' The list also is divided alphabetically into twenty pag ...
*''
Sciens In law, ''sciens'', the Latin word for "knowlingly", describes a state of mind. It refers to knowledge of a fact, usually of a specific risk. It is usually pleaded by way of defence. For example, where a claimant suffers a personal injury, th ...
'' *'' Volens''


References

{{Reflist Brocards (law) Delict Legal rules with Latin names Legal doctrines and principles Tort law