• Video Transcript - What Is ‘Voluntary Assumption of the Risk’ in a Civil Claim?

  Video Transcript - What Is ‘Voluntary Assumption of the Risk’ in a Civil Claim?

  "0:00 What is voluntary assumption of the risk?
  0:02 In a civil claim, voluntary assumption of
  0:06 the risk is a situation where a
  0:08 plaintiff voluntarily accepts a known
  0:11 and appreciated risk and goes forward
  0:13 with the dangerous activity. For example,
  0:16 if somebody gets on a horse and they go
  0:19 riding the horse, they assume the risk
  0:21 that they could fall off that horse. If
  0:24 someone engages in a recreational
  0:26 activity like boxing, for example, they’re
  0:30 deemed to have assumed the risk inherent
  0:32 in that particular activity, and
  0:34 therefore they cannot sue someone who
  0:36 may have contributed to creating that
  0:39 risk of harm. [Music]"

In Volenti Non-fit Injuria, the plaintiff cannot recover damages as they have consented to the activity that resulted in their injury. Let’s explore the doctrine with Ehline Law and our personal injury attorneys.

What Is ‘Volenti Non-fit Injuria’ in a Civil Claim?

Under the personal injury law, every person must ensure reasonable care to prevent harm to others, whether they’re driving, operating machinery, conducting surgery, etc. However, like any other statute, there are exceptions known as defenses of torts.

Under the defenses of torts, defendants can avoid liability by using the Volenti Non-fit Injuria defense. In the event that an individual consents to a wrongful act that results in their injury, they lose their right to recover compensation as they voluntarily consented to such a wrong. The plaintiff’s consent protects the defendant from liability, referred to as Volenti Non-fit Injuria.

Volenti Non-fit Injuria means that there is no injury done to a willing person, as any harm suffered voluntarily does not lead to a legal injury. Let’s look at an example of Volenti Non-fit Injuria to understand the concept better. Jeff invites John to his house for lunch, meaning Jeff cannot sue John later for trespassing. Jeff has voluntarily agreed to some harm by calling John over to their home, but it cannot go beyond the consented limit. In football or any other sport, the players agree to injuries arising from normal acts of the game, meaning they cannot sue players for suffering any injuries within the game.

No individual can enforce a right that they voluntarily waived. The defendant must prove that the plaintiff was fully aware of the risks involved. However, mere knowledge of the risk is insufficient, and the plaintiff must give consent.

Volenti Non-fit Injuria Elements

To implement the Volenti Non-fit Injuria, the defendant must fulfill the elements, which include:

• The plaintiff knew about the risks
• The plaintiff knew about the risks and agreed voluntarily to the harm.

When a plaintiff knows the risks of an act, and they voluntarily agree to the risks, they accept the harm that can occur from the activity, and in that case, the defendant is not liable or accountable for the outcome of the act.

It is important to realize that knowledge of the risks is insufficient for the defendant to implement Volenti Non-fit Injuria. It is a partial fulfillment of the elements of implementing Volenti Non-fit Injuria. For example, employees working at a construction site know the risks involved in the profession they are working in and the location they are working at. However, they can sue their employer and recover compensation if they suffer injuries at the construction site because they did not give their consent to the lack of reasonable care demonstrated by their employer.

Smith v. Baker & Sons case is a perfect example. One of the employees was working at a site where the cranes would move rocks over their heads. Eventually, the stones fell on the employee, resulting in his injuries, who decided to pursue compensation against his employer.  Although the employee knew of the risks of working at the job site, he did not consent to a lack of reasonable care, resulting in him winning the case against his employer.

Who Needs to Prove Volenti Non-fit Injuria Elements?

When the defendant wishes to use the Volenti Non-fit Injuria defense, they have to prove that the plaintiff knew the risk involved and also gave their consent to it. If the defendant cannot provide evidence, they cannot use the Volenti Non-fit Injuria defense.

Plaintiff’s Consent

The plaintiff’s consent is the most crucial part of the Volenti Non-fit Injuria doctrine because, without their consent to the activity, the defendant cannot use Volenti Non-fit Injuria as a defense.

A plaintiff may give their content in writing or through their actions or conduct, free of fraud, coercion, or any influence that may affect the consent. Such consent must be free consent without any influence from the other party or any action. Fraud consent obtained does not allow the defendant to use the Volenti Non-fit Injuria defense.

In the R. v. Williams case, a coach convinced his student to have sex with him to improve her singing capabilities. The student sued the coach, and the court held the defendant liable as the defendant obtained the student’s consent through fraudulent means, and such consent does not protect the defendant.

Volenti Non-fit Injuria Defense Limitations

The Volenti Non-fit Injuria defense has its limitations, and even if all the essential conditions are present in a case, the defendant cannot use the defense in certain situations.

Rescue Cases

When a plaintiff decides to rescue a person from a threat, they know the risks involved, and their actions consent to the risk. However, the defense may be unable to use the Volenti Non-fit Injuria, and Haynes v. Harwood is an example of such a case.

The defendant’s servant pulled along some horses to town, tied them near a pole, and went off to get some work done. Nearby, children started throwing stones at the horses, which broke free and began to attack the children in rage.

A police officer saw what was happening and ran toward the horses to stop them but suffered injuries. The officer brought a civil action against the horse’s owner to recover compensation for the injuries and won. Since it was a rescue case, the defendant could not use the Volenti Non-fit Injuria defense.

Illegal Acts

The Volenti Non-fit Injuria defense is not applicable when the activities carried out are illegal under the law. In such cases, even if the defendant fulfills the elements of Volenti Non-fit Injuria, they do not receive any protection under the doctrine since it is an illegal act.

For example, if Jane shoots Jerry, she cannot claim that Jerry gave his consent to shoot him, and Jane cannot take protection under the defense of Volenti Non-fit Injuria as such an act is illegal.

Defendant’s Negligence

Where the defendant is negligent, they cannot use the Volenti Non-fit Injuria defense to escape liability. Let’s look at Slater v. Clay Cros Co. The plaintiff sued the railway company after he got struck by a train in a tunnel. The railway company told their drivers to blow a whistle before entering the tunnel and slow down their speed to prevent accidents.

However, one of the drivers did not comply with the instructions provided, causing injuries to a plaintiff who walked into a tunnel without knowing a train was approaching. The defendant tried to escape accountability by taking defense under Volenti Non-fit Injuria. Although the plaintiff walked into the tunnel and assumed the risk, the court held the defendant liable because the driver was negligent.

Is Contributory Negligence Similar to Volenti Non-fit Injuria?

Regarding contributory negligence, the liability of the defense is only based on their share of fault, while in Volenti Non-fit Injuria, it is a complete defense. When both parties are negligent, it comes under contributory negligence, while in Volenti Non-fit Injuria, the plaintiff may have voluntarily entered while exercising due care for their safety. Another difference between the two is that the plaintiff in contributory negligence may be unaware of their negligence. In Volenti Non-fit Injuria, a plaintiff is entirely aware of the danger they encounter.

Landmark Volenti Non-fit Injuria Case: Padmavati v. Dugganika

In Padmavati v. Dugganika, a driver gave a lift to two strangers while on his way to fill up petrol in his jeep. During the journey, the bolts on the right front wheel came off, causing the jeep to get out of control. The accident resulted in the death of one of the strangers, while the other suffered serious injuries.  The injured stranger sued the driver, but the court did not hold the defendant liable as it was an accident, and the plaintiff gave implied consent and knew the risk when they jumped into the vehicle for a lift.

Schedule a Free Consultation with Ehline Law

In most personal injury cases, the plaintiff must prove the other party’s negligence and provide evidence of their injuries resulting from another’s negligence. If you’ve suffered injuries in an accident that was not your fault, contact us at (833) LETS-SUE for a free consultation, as you may be eligible for compensation. Our experienced attorneys can assess your case, gather evidence to build a case, and fight for the compensation you deserve.

• Accordion Index - Videos
  1. What is ‘Volenti Non Fit Injuria‘ in a civil claim?
  2. What are the basic issues in right to privacy?
  3. What is ‘Negligent Infliction of Emotional Distress’ Under Tort Law?
  4. What is ‘Proximate Cause’ Under Tort Law?
  5. What is a ‘Breach Causing Harm in Fact’ Under Tort Law?
  6. What is a ‘Breach of Duty of Care’ Under Tort Law?
  7. What is ‘Standard of Care’ Under Tort Law?
  8. What are the Elements of Negligent Torts?
  9. What is a ‘Tort of Negligence’?
  10. What is a ‘Conversion’ Under Tort Law?
  11. What is an ‘Attractive Nuisance’ Under Tort Law?
  12. What is a ‘Nuisance’ Under Tort Law?
  13. What is ‘Trespass to Chattels’ Under Tort Law?