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Tort - Volenti Non Fit Injuria I

Updated on August 7, 2017

Volenti non fit injuria (volenti) is a defense that is pleaded in claims of negligence. It means that the plaintiff’s injuries are the result of his own actions or when a person voluntarily puts himself in a position that would most likely result in some form of injury to himself or herself then the defendant is not liable for those injuries.

In Wooldridge v Sumner (1963) the plaintiff was a photographer who was standing too close to a racetrack and subsequently he was knocked over by a rider who had lost control of his horse. The plaintiff sued for negligence and the defendant pleaded volenti. The court dismissed the claim. Volenti is only a defense in instances of negligence. In this instance the defendant wasn’t negligent at all; he merely lost control of his horse, which is something that happens during races and can happen in the course of any race. In any racetrack there is seating that is available for the spectators and the plaintiff, if he had bought a ticket, than by virtue of entering into the contract, must restrict himself to the sitting area.

In cases where the relationship between the plaintiff and the defendant is an employer-employee relationship, the employer must take reasonable care not to put his employee in a situation where he’d likely incur some form of injury or other and having done so, he cannot claim or plead the defense of volenti.

In Smith v Baker (1891) the plaintiff was employed by the defendant to construct a railway. On the site there was a crane that was constantly operating, moving rocks and stones over the plaintiff’s head and the plaintiff had complained to the defendant on numerous occasions that there is a possibility that rocks or stones may drop down as they were being moved by the crane. The defendant acknowledged the fact and instructed the plaintiff to continue working and as a result the plaintiff was injured by a falling stone. The plaintiff sued and the defendant pleaded the defense of volenti. The court found in favor of the plaintiff.

Would it have been any different if the defendant had made safety hats available to all his workers? It would have. If the plaintiff had been issued with a safety hat and if he had removed it while he was working and was subsequently injured by a falling stone, he would have been contributorily negligent.

Volenti is a voluntary act that the plaintiff undertakes on his own accord or by his own volition. Here the plaintiff was instructed to work under the crane. Employers generally have a duty not to put their employees in situations where they would sustain or incur some form of physical injury and to provide them with the correct or appropriate safety equipment or gear.

In ICI Ltd v Shatwell (1965) the plaintiff and his brother were experienced shotfirers who were employed to work in the defendants quarry. The wire on one of the detonators was short and while another worker went off to find a longer wire the plaintiff detonated the explosives. Because the length of the wire was too short the plaintiff and his brother were unable to seek adequate shelter and as a result the brothers were injured. Both the plaintiff and his brother were aware of the relevant safety precautions but failed to take the appropriate measures. The plaintiff sued the defendants for negligence and the defendants relied on the defense of volenti. The plaintiff failed. The plaintiff was aware of the dangers and of the fact that the explosives were only to be detonated from a safe distance away. In addition to that there was also a duty imposed by statute that placed on them a duty to take the necessary precautions while detonating explosives.

In Nettleship v Weston (1971) the defendant was a learner driver who employed the plaintiff to help her fine-tune her driving skills. While they were on the road the defendant turned a bend and the plaintiff told the defendant to straighten the wheel. The defendant failed to do so and in order to avoid an accident the plaintiff pulled on the handbrake but despite that the car ran over a pavement and hit a lamppost and the plaintiff was injured in the accident that followed.

The plaintiff sued. The defendant pleaded volenti and argued that by entering into the car the plaintiff had voluntarily accepted the risk. The court rejected this argument and the plaintiff was successful. The court held that despite the fact that the defendant was a learner driver the duty imposed on her was the same duty that was imposed on any other driver. In this particular instance in order for the defendant to successfully plead volenti the plaintiff must have either impliedly or expressly waived his right to seek a legal remedy.

© 2017 Kathiresan Ramachanderam and Dyarne Jessica Ward

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