Defense of volenti non-fit injuria
This literally means no injury is done to a willing person. If the alleged negligence is as a result of the willingness of the plaintiff, the defendant is not liable.
Volenti non fit injuria is a defence of limited application in tort law. A direct translation of the latin phrase volenti non fit injuria is, ‘to one who volunteers, no harm is done’. Where the defence of volenti applies it operates as a complete defence absolving the Defendant of all liability. It is often stated that the Claimant consents to the the risk of harm, however, the defence of volenti is much more limited in its application and should not be confused with the defence of consent in relation to trespass. The defence of volenti non fit injuria requires a freely entered and voluntary agreement by the Claimant, in full knowledge of the circumstances, to absolve the Defendant of all legal consequences of their actions. There is a considerable overlap with contributory negligence and since the introduction of the Law Reform (Contributory Negligence) Act 1945, the courts have been less willing to make a finding of volenti preferring to apportion loss between the parties rather than taking an all or nothing approach.
The requirements of the defence are thus:
1. A voluntary
2. Agreement
3. Made in full knowledge of the nature and extent of the risk.
1. Voluntary
The agreement must be voluntary and freely entered for the defence of volenti non fit injuria to succeed. If the Claimant is not in a position to exercise free choice, the defence will not succeed. This element is most commonly seen in relation to employment relationships, rescuers and suicide.
2. Agreement
The second requirement for the defence of volenti non fit injuria is agreement. The agreement may be express or implied. An example of an express agreement would be where there exists a contractual term or notice. However, this would be subject to the controls of s.2 of the Unfair Contract Terms Act 1977. An implied agreement may exist where the Claimant’s action in the circumstances demonstrates a willingness to accept not only the physical risks but also the legal risks.
3. Knowledge
The Claimant must have knowledge of the full nature and extent of the risk that they ran:
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