Learning Outcomes
After reading this article, you will be able to explain the defence of voluntary assumption of risk (volenti non fit injuria) in negligence claims. You will understand the strict requirements for establishing this defence, including the need for full knowledge of the risk and genuine, voluntary consent. You will be able to distinguish volenti from contributory negligence, identify when the defence is likely to succeed or fail, and apply these principles to SQE1-style scenarios.
SQE1 Syllabus
For SQE1, you are required to understand the operation and limits of the defence of voluntary assumption of risk in negligence. In your revision, focus on:
- the meaning and effect of volenti non fit injuria as a complete defence to negligence
- the legal requirements for establishing the defence: knowledge of the risk and voluntary acceptance
- the distinction between volenti and contributory negligence
- situations where the defence is unlikely to succeed (e.g. employment, rescuers, statutory exclusions)
- the impact of public policy and relevant statutory provisions (such as the Road Traffic Act 1988)
- how to apply the defence to practical problem 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.
- What are the two essential elements a defendant must prove to establish the defence of voluntary assumption of risk in negligence?
- In which of the following situations is the defence of volenti non fit injuria least likely to succeed?
a) A passenger in a car accident who knew the driver was drunk
b) An employee injured at work after being told of a risk
c) A spectator at a football match injured by a stray ball
d) A skydiver who signs a waiver and is injured during a jump - How does the defence of volenti non fit injuria differ from contributory negligence?
- What is the effect of section 149 of the Road Traffic Act 1988 on the defence of volenti in road traffic accident claims?
Introduction
The defence of voluntary assumption of risk—also known by its Latin maxim, 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, even if all elements of negligence are otherwise satisfied. However, the requirements for this defence are strict and it is rarely successful in practice.
The principle of volenti non fit injuria
Volenti non fit injuria means "no injury is done to one who consents." In negligence, this defence applies where the claimant has freely agreed to accept the risk of harm arising from the defendant’s conduct. If proven, the defendant is not liable for any resulting damage.
Key Term: volenti non fit injuria
A complete defence to negligence where the claimant freely and voluntarily accepts the risk of harm, barring recovery for resulting injury.
Legal requirements for the defence
To succeed with the defence of voluntary assumption of risk, the defendant must prove two elements:
- The claimant had full knowledge of the nature and extent of the risk.
- The claimant voluntarily agreed to accept that risk.
Both elements must be satisfied. The courts apply these requirements strictly, as the effect is to deny the claimant any remedy.
Key Term: knowledge of the risk
The claimant must fully understand the specific risk involved, not just be generally aware of possible harm.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 have a clear and complete understanding of the actual risk being accepted. General awareness of danger is not enough. The risk must be specific and obvious to the claimant, or it must have been explained to them.
For example, if a person knowingly gets into a small aircraft with a pilot who is visibly drunk, and is aware of the pilot’s condition, the claimant will be taken to have knowledge of the risk of flying with an intoxicated pilot.
Voluntary acceptance of the risk
The claimant’s acceptance must be a genuine, free choice. If the claimant is under duress, economic pressure, or lacks a real alternative (such as in employment), the acceptance will not be considered voluntary.
Consent can be express (stated in words or writing) or implied from conduct, but the courts are slow to find implied consent, especially where public policy favours protecting claimants.
Distinguishing volenti from contributory negligence
It is important to distinguish between volenti and contributory negligence:
- Volenti non fit injuria is a complete defence. If established, the claimant recovers nothing.
- Contributory negligence is a partial defence. If established, the claimant’s damages are reduced to reflect their share of responsibility.
If the claimant did not truly accept the risk but was merely careless, contributory negligence may apply instead.
Key Term: contributory negligence
A partial defence reducing damages where the claimant’s own lack of care contributed to their injury.
Worked Example 1.1
A passenger accepts a lift from a friend who is obviously drunk. The car crashes and the passenger is injured. Can the driver rely on the defence of volenti?
Answer: No. Although the passenger knew the driver was drunk, section 149 of the Road Traffic Act 1988 prevents the use of volenti as a defence by drivers to claims by passengers in motor vehicles. The driver may, however, argue contributory negligence.
Worked Example 1.2
A football player is injured by a late tackle during a match. The player knew football carries a risk of injury. Can the defendant rely on volenti?
Answer: No. While the claimant accepted the ordinary risks of the game, they did not consent to negligent or reckless fouls. Volenti does not apply to injuries caused by conduct outside the normal rules of the sport.
Worked Example 1.3
A skydiver signs a waiver acknowledging the risks of jumping and is injured during a routine jump. Can the skydiving company rely on volenti?
Answer: Yes, if the waiver was clear, the risks were explained, and the claimant freely consented. The company may be able to rely on volenti as a complete defence, provided there was no negligence outside the accepted risks.
Application and limits of the defence
Employment situations
The defence of volenti is rarely successful in employment cases. Employees may feel compelled to accept dangerous work due to economic necessity or fear of dismissal. The courts recognise this and usually find that acceptance is not truly voluntary.
Rescuers
Where a claimant is injured while acting as a rescuer, the defence of volenti will almost never succeed. The law recognises that rescuers act under a moral or social duty, not by free choice.
Sports and recreational activities
Participants in sports are taken to accept the ordinary risks of the activity, but not risks arising from negligence or conduct outside the rules. Volenti will not apply to injuries caused by dangerous fouls or reckless disregard for safety.
Statutory exclusions
Section 149 of the Road Traffic Act 1988 prevents defendants from relying on volenti as a defence to claims by passengers in motor vehicles where insurance is compulsory. This means that, even if a passenger knew of the risk, the driver cannot escape liability by arguing that the passenger consented.
Key Term: Road Traffic Act 1988, section 149
A statutory provision barring the defence of volenti for drivers facing claims by passengers in insured vehicles.
Policy considerations
Courts are reluctant to apply volenti where it would undermine public policy, such as in employment, rescue, or road traffic situations. The defence is more likely to succeed where the claimant is genuinely free to choose and the risk is clear and specific.
Exam Warning
The defence of volenti is rarely successful. For SQE1, remember that the courts require clear evidence of both full knowledge and voluntary acceptance. If in doubt, consider whether contributory negligence is more appropriate.
Revision Tip
Always check for statutory exclusions (such as the Road Traffic Act 1988) before advising on volenti. If the claimant had no real choice, the defence will not apply.
Key Point Checklist
This article has covered the following key knowledge points:
- Volenti non fit injuria is a complete defence to negligence if the claimant freely and knowingly accepts the risk.
- The defendant must prove both full knowledge of the risk and genuine, voluntary acceptance.
- The defence is rarely available in employment, rescue, or road traffic cases due to public policy or statute.
- Volenti is distinct from contributory negligence, which only reduces damages.
- Statutory provisions, such as section 149 of the Road Traffic Act 1988, may bar the defence in certain contexts.
Key Terms and Concepts
- volenti non fit injuria
- knowledge of the risk
- voluntary acceptance
- contributory negligence
- Road Traffic Act 1988, section 149
