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Volenti non fit injuria

Volenti non fit injuria is a defence of limited application in tort law. The Latin term Volenti non fit injuria
meaning “to one who is willing, no harm is done.” This doctrine holds that a person who knowingly and
willingly puts himself in a dangerous situation cannot later on sue for any resulting injuries. Volenti non
fit injuria is a defense in tort. If a person engages in an event accepting and being totally aware of the
risks inherent in that event, then such person cannot later complain of, or seek compensation for injury
suffered during the event.

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.

Nettleship v Weston [1971] 3 WLR 370 Court of Appeal

The defendant was a learner driver. She was taking lessons from a friend. The friend checked that the
defendant's insurance covered her for passengers before agreeing to go out with her. On one of the
lessons Mrs Weston turned a bend, Mr Nettleship told her to straighten the wheel but Mrs Weston
panicked and failed to straighten the wheel. She approached the pavement and Mr Nettleship grabbed
the handbrake and tried to straighten the wheel but it was too late. She mounted the pavement and hit
a lamp post. Mr Nettleship fractured his knee. The defendant argued that the standard of care should be
lowered for learner drivers and she also raised the defence of volenti non fit injuria in that in agreeing to
get in the car knowing she was a learner, he had voluntarily accepted the risk.
Held:
A learner driver is expected to meet the same standard as a reasonable qualified competent
driver. Volenti did not apply as he had checked the insurance cover which demonstrated he did not
waive any rights to compensation. His damages were reduced by 50% under the Law Reform
(Contributory Negligence) Act 1945 to reflect the degree to which he was also at fault.

White v Blackmore [1972] 3 WLR 296 Court of Appeal


Mr White was killed at a Jalopy car race due negligence in the way the safety ropes were set up. A car
crashed into the ropes about 1/3 of a mile from the place where Mr White was standing. Consequently
he was catapulted 20 foot in the air and died from the injuries received. Mr White was a driver in the
race but at the time of the incident he was between races and standing close to his family. He had
signed a competitors list which contained an exclusion clause. There was also a warning sign at the
entrance to the grounds which stated that Jalopy racing is dangerous and the organisers accept no
liability for any injury including death howsoever caused. The programme also contained a similar
clause. His widow brought an action against the organiser of the event who defended on the grounds
of volenti and that they had effectively excluded liability.

Held:
The defence of volenti was unsuccessful. Whilst it he may have been volens in relation to the risks
inherent in Jalopy racing, he had not accepted the risk of the negligent construction of the ropes.
However the defendant had successfully excluded liability (Lord Denning MR dissenting)

Lord Denning MR:

"The Act preserves the doctrine of volenti non fit injuria. It says in Section 2(5) that: "the common duty
of care does not impose on an occupier any obligation to a visitor in respect of risks willingly accepted as
his by the visitor".
No doubt the visitor takes on himself the risks inherent in motor racing, but he does not take on himself
the risk of injury due to the defaults of the organisers. People go to race meetings to enjoy the sport.
They like to see the competitors taking risks, but they do not like to take risks on themselves, even
though it is a dangerous sport, they expect, and rightly expect, the organisers to erect proper barriers, to
provide proper enclosures, and to do all that is reasonable to ensure their safety. If the organisers do
everything that is reasonable, they are not liable if a racing car leaps the barriers and crashes into the
crowd - see Hall v. Brooklands (1933) 1 K.B. 206. But, if the organisers fail to take reasonable
precautions, they cannot excuse themselves from liability by invoking the doctrine of volenti non fit
injuria: for the simple reason that the person injured or killed does not willingly accept the risks arising
from their want of reasonable care, see Slater v. Clay Cross Co.(1956) 2 Q.B.20B;Wooldridge v.
Summer (1963) 2 Q.B. at page 69; Nettleship v. Weston (1971) 2 Q.B. at page 201."

Smith v Baker & Sons [1891] AC 325

The Claimant sued his employers for injuries sustained while in the course of working in their
employment. He was employed to hold a drill in position whilst two other workers took it in turns to hit
the drill with a hammer. Next to where he was working another set of workers were engaged in taking
out stones and putting them into a steam crane which swung over the place where the Claimant was
working. The Claimant was injured when a stone fell out of the crane and struck him on the head. The
Defendant raised the defence of volenti non fit injuria in that the Claimant knew it was a dangerous
practice and had complained that it was dangerous but nevertheless continued. At trial the jury found
for the Claimant. The Defendant appealed and the Court of Appeal allowed the appeal holding that the
Claimant was precluded from recovering as he had willingly accepted the risk. The Claimant appealed to
the House of Lords.

Held 3:2 Decision.


The appeal was allowed. The Claimant may have been aware of the danger of the job, but had not
consented to the lack of care. He was therefore entitled to recover damages.

Lord Watson:

"In its application to questions between the employer and the employed, the maxim as now used
generally imports that the workman had either expressly or by implication agreed to take upon himself
the risks attendant upon the particular work which he was engaged to perform, and from which he has
suffered injury. The question which has most frequently to be considered is not whether he voluntarily
and rashly exposed himself to injury, but whether he agreed that, if injury should befall him, the risk was
to be his and not his masters. When, as is commonly the case, his acceptance or non-acceptance of the
risk is left to implication, the workman cannot reasonably be held to have undertaken it unless he knew
of its existence, and appreciated or had the means of appreciating its danger. But assuming that he did
so, I am unable to accede to the suggestion that the mere fact of his continuing at his work, with such
knowledge and appreciation, will in every case necessarily imply his acceptance. Whether it will have
that effect or not depends, in my opinion, to a considerable extent upon the nature of the risk, and the
workman's connection with it, as well as upon other considerations which must vary according to the
circumstances of each case."
3. Knowledge
The Claimant must have knowledge of the full nature and extent of the risk that they ran:

The test for this is subjective and not objective and in the context of an intoxicated Claimant, the
question is whether the Claimant was so intoxicated that he was incapable of appreciating the nature of
the risk.

Wooldridge v Sumner [1963] 2 QB 43


The claimant was a photographer at a horse show. He was situated within the ring of the horse show
and not behind the barriers where the spectators were housed. He was on a bench with a Miss
Smallwood who was a director of the company which employed the Claimant. He had been taking little
interest in the proceedings and was not experienced in regard to horses. During the competition, one of
the horses, Work of Art owned by the Defendant, came galloping at great speed towards the bench
where they were sitting. The Claimant took fright at the approach of the galloping horse and attempted
unsuccessfully to pull Miss Smallwood off the bench. He stepped or fell back into the course of the horse
which passed three or few feet behind the bench, and was knocked down. The Claimant brought an
action in negligence arguing the rider had lost control of the horse and was going too fast. The
defendant raised the defence of volenti non fit injuria.
Held:
There was no breach of duty so the Claimant's action failed. On the issue of volenti non fit injuria it was
held that consent to the risk of injury was insufficient. There must be consent to the breach of duty in
full knowledge of the nature and extent of the risk.

Morris v Murray [1991] 2 QB 6


The Claimant and Defendant had been drinking all day. The Defendant, who had a pilot licence and a
light aircraft, suggested that they took the aircraft for a flight. The Claimant agreed and drove them both
to the airfield. They started the engine and the Defendant took off but crashed shortly after. The
Defendant was killed and the Claimant was seriously injured. An autopsy revealed that the Defendant
had consumed the equivalent of 17 Whiskeys. In an action for negligence, the Defendant raised the
defence of volenti non fit injuria.
Held:
The defence was allowed. The actions of the Claimant in accepting a ride in an aircraft from an obviously
heavily intoxicated pilot was so glaringly dangerous that he could be taken to have voluntarily accepted
the risk of injury and waived the right to compensation.

Volenti non fit injuria in employment relationships


As long ago as 1891, the House of Lords recognised that an employee who complained of unsafe
practice, but nevertheless continued to work could not truly be said to have voluntarily agreed to waive
their legal rights:

Smith v Baker & Sons [1891] AC 325

The Claimant sued his employers for injuries sustained while in the course of working in their
employment. He was employed to hold a drill in position whilst two other workers took it in turns to hit
the drill with a hammer. Next to where he was working another set of workers were engaged in taking
out stones and putting them into a steam crane which swung over the place where the Claimant was
working. The Claimant was injured when a stone fell out of the crane and struck him on the head. The
Defendant raised the defence of volenti non fit injuria in that the Claimant knew it was a dangerous
practice and had complained that it was dangerous but nevertheless continued. At trial the jury found
for the Claimant. The Defendant appealed and the Court of Appeal allowed the appeal holding that the
Claimant was precluded from recovering as he had willingly accepted the risk. The Claimant appealed to
the House of Lords.

Held 3:2 Decision.


The appeal was allowed. The Claimant may have been aware of the danger of the job, but had not
consented to the lack of care. He was therefore entitled to recover damages.

Lord Watson:

"In its application to questions between the employer and the employed, the maxim as now used
generally imports that the workman had either expressly or by implication agreed to take upon himself
the risks attendant upon the particular work which he was engaged to perform, and from which he has
suffered injury. The question which has most frequently to be considered is not whether he voluntarily
and rashly exposed himself to injury, but whether he agreed that, if injury should befall him, the risk was
to be his and not his masters. When, as is commonly the case, his acceptance or non-acceptance of the
risk is left to implication, the workman cannot reasonably be held to have undertaken it unless he knew
of its existence, and appreciated or had the means of appreciating its danger. But assuming that he did
so, I am unable to accede to the suggestion that the mere fact of his continuing at his work, with such
knowledge and appreciation, will in every case necessarily imply his acceptance. Whether it will have
that effect or not depends, in my opinion, to a considerable extent upon the nature of the risk, and the
workman's connection with it, as well as upon other considerations which must vary according to the
circumstances of each case."
As a matter of public policy, the defence is not generally available where an employer is in breach of
statutory duty, however limited exceptions exist to this:

Imperial Chemical Industries Ltd v Shatwell [1965] AC 656 House of


Lords
The claimants were brothers who were qualified shotfirers employed by the defendant. They were
injured as a result of an explosion at the defendant's quarry caused by the brothers' negligence. They
had insufficient wire to test a circuit to allow them to test from a shelter. Another worker had gone to
fetch more wire but the brothers decided to go ahead and test with the shorter wire. Each brother
claimed against the defendant based on their employer's vicarious liability for the negligence and breach
of statutory duty of the other brother. The defendant raised the defence of volenti non fit injuria in that
the brothers had full knowledge of the risk and were acting against express instructions. At trial the
judge held that the defence of volenti could not apply where there was breach of a statutory duty. This
was upheld in the Court of Appeal.

Held:
The appeal was allowed. The brothers had deliberately acted in defiance of the employer's express
instructions in full knowledge of the risks. The workers were under the statutory duty not the employer.
The employer had been instrumental in bringing in the statutory regulations and ensured all workers
were aware of them. They had also previously dismissed a worker for flouting the regulations.

Volenti non fit injuria - rescuers


A rescuer is not regarded as having freely and voluntarily accepted the risk:

Baker v TE Hopkins & Son Ltd [1959] 1 WLR 966 Court of Appeal

Mr Ward and Mr Wileman were employed by the defendant, Hopkins. They had been called to clean out
a well. The well was 50ft deep and 6ft wide. Hopkins tested the atmosphere in the well by putting a
lighted candle down the well. The candle returned still lighted and thus he concluded the atmosphere
was fine. He and Ward then took a petrol motored pump down the well started it up and left the well
leaving the engine running on its own. The motor ran for 1 1/2 hours before it stopped of its own
accord. Before leaving the site Mr Hopkins told Mr Ward and Mr Wileman not to go down the well until
the fumes have cleared. The following morning Hopkins again told the two not to go down the well until
he had arrived on the site. In breach of these orders Mr. Ward went down the well and was overcome
by fumes. Mr Wileman called for assistance and went down the well after him. The claimant, Dr Baker,
then arrived on the scene. He too went into the well to seek to rescue the two. Unfortunately all three
died of carbon monoxide poisoning. The defendant contended that the act of the doctor acted as
a novus actus interveniens and sought to invoke volenti non fit injuria.

Held:
The doctors actions were not a novus actus interveniens. It was foreseeable that if a defendant by his
negligence places another in peril that someone may come to his rescue and the doctor's actions were
not unreasonable in the circumstances. The Claimant's action was not defeated by volenti non fit injuria.
He was and as such his actions did not count as freely and voluntarily accepting the risk.

Morris LJ:

it was said that Dr. Baker had been "unreasonably" brave. If a rescuer acts with a wanton disregard of
his own safety it might be that in some circumstances it might be held that any injury to him was not the
result of the negligence that caused the situation of danger. Such a contention cannot be here asserted.
Dr. Baker tied a strong rope round his body and arranged for the rope to be held by those on the
surface, and arranged to maintain oral communication with them. It must be remembered also that the
chances of success of his attempt would diminish moment by moment if he tarried. He in no way acted
recklessly or negligently. In my judgment, the learned Judge came to a correct conclusion in regard to
the claim made by his executors.

This applies to professional rescuers:

Haynes v Harwood [1935] 1 KB 146

The Defendant left a horse-drawn van unattended in a crowded street. The horses
bolted when a boy threw a stone at them. A police officer tried to stop the horses to save a woman and
children who were in the path of the bolting horses. The police officer was injured. It was held that the
Defendant owed a duty of care as he had created a source of danger by leaving his horses unattended in
a busy street.

Ogwo v Taylor [1987] 3 WLR 1145 House of Lords

The Defendant attempted to burn off paint from the fascia boards beneath the eaves of his house with a
blow lamp and in so doing set fire to the premises. The fire brigade were called and the Claimant, an
acting leading fireman, and a colleague entered the house wearing breathing apparatus and the usual
fireman's protective clothing and armed with a hose. The two firemen were able, with the aid of a step-
ladder, to squeeze through a small hatch to get into the roof space. The heat within the roof space was
intense. The Claimant suffered serious burn injuries to his upper body and face from scalding steam
which must have penetrated his protective clothing.

Held:
A duty of care was owed to a professional fireman. There was no requirement that the risk be
exceptional. The defence of volenti had no application.

Lord Bridge:

"The duty of professional firemen is to use their best endeavours to extinguish fires and it is obvious
that, even making full use of all their skills, training and specialist equipment, they will sometimes be
exposed to unavoidable risks of injury, whether the fire is described as "ordinary" or "exceptional." If
they are not to be met by the doctrine of volenti, which would be utterly repugnant to our
contemporary notions of justice, I can see no reason whatever why they should be held at a
disadvantage as compared to the layman entitled to invoke the principle of the so-called "rescue"
cases."

If however, there is no real need to rescue, the Claimant may be held volens:

Cutler v United Dairies [1933] 2 KB 297


The Claimant was injured when he entered a field to calm some horses. His claim for compensation was
unsuccessful as the horses presented no immediate danger to persons or property and there was no
need for him to intervene. He was thus held to be volens.

Volenti non fit injuria - Suicide


Where the Claimant commits suicide, originally it was held that they would be treated as volens if they
were of sound mind, but if they were of unsound mind the defence of volenti non fit injuria would have
no application:

Kirkham v CC Greater Manchester Police [1990] 2 QB 283 Court of


Appeal

Mr Kirkham was an alcoholic and suffered from depression. He had made a two suicide attempts on 6th
Jan 1980. He was admitted to hospital but discharged himself the following day. When he arrived home
his wife prevented him from drinking and he became violent and started smashing furniture. The police
were called and arrested him. His wife informed them of his suicide attempts and discharging himself
from hospital and it was agreed that he should be remanded in custody for his own safety. However, the
police failed inform the prison authorities that Mr Kirkham was a suicide risk. He committed suicide
whilst on remand at Risley Remand Centre. His wife brought an action based on the negligence of the
police in failing to pass on the information. The Police raised the defences of volenti non fit
injuria and ex turpi causa.

Held:
The claimant was successful. The defence of volenti non fit injuria, although normally would apply
where a person of sound mind were to take their own life, had no application where a person of
unsound mind took their life. The defence of ex turpi causa was not limited to illegal acts but extended
also to immoral acts. The court applied the public conscience test and concluded that to allow the
claimant to succeed would not affront the public conscience, or shock the ordinary citizen.

Lord Justice Lloyd:

Where a man of sound mind injures himself in an unsuccessful suicide attempt, it is difficult to see why
he should not be met by a plea of volenti non fit injuria. He has not only courted the risk of injury by
another; he has inflicted the injury himself. In Hyde v. Tameside Area Health Authority, the plaintiff, who
had made an unsuccessful suicide attempt, brought an action for damages against the Health Authority
alleging negligence on the part of the hospital staff. Lord Denning doubted whether a defence of volenti
non fit injuria would be available in such a case "seeing that [the plaintiff] did not willingly injure himself
- he wanted to die". I find that reasoning hard to follow. Any observation of Lord Denning is, of course,
entitled to great weight; but the observation was obiter, since the court held that the hospital staff had
not been negligent. Moreover we were told by Mr Foster, who happened to have appeared for the
plaintiff in that case, that the point was never argued.

So I would be inclined to hold that where a man of sound mind commits suicide, his estate would be
unable to maintain an action against the hospital or prison authorities, as the case might be. Volenti non
fit injuria would provide them with a complete defence. There should be no distinction between a
successful attempt and an unsuccessful attempt at suicide. Nor should there be any distinction between
an action for the benefit of the estate under the Law Reform Act and an action for the benefit of
dependants under the Fatal Accidents Act. In so far as Pilcher J. drew a distinction between the two
types of action in Pigney v. Pointers Transport Services Ltd. 1957 2 All E.R. S07, I would respectfully
disagree.

But in the present case Mr Kirkham was not of sound mind. True, he was sane in the legal sense. His
suicide was a deliberate and conscious act. But Dr Sayed, whose evidence the judge accepted, said that
Mr Kirkham was suffering from clinical depression. His judgment was impaired. If it had been a case of
murder, he would have had a defence of diminished responsibility due to disease of the mind.
I have had some doubt on this aspect of the case, in the light of Dr Sayed's further evidence that, though
his judgment was impaired, Mr Kirkham knew what he was doing. But in the end I have been persuaded
by Mr Foster that, even so, he was not truly volens. Having regard to his mental state, he cannot, by his
act, be said to have waived or abandoned any claim arising out of his suicide. So I would reject the
defence of volenti non fit injuria.

However, this distinction was abandoned as it would essentially deprive the duty of substance:

Reeves v Commissioner of Police of the Metropolis [2000] 1 AC 360


House of Lords
Martin Lynch committed suicide whilst in a police cell. He had attempted suicide earlier that day in the
cells at the magistrates. He had also attempted suicide on previous occasions. He had been seen by a
doctor at the police station on arrival who reported that he was not schizophrenic or depressed but was
a suicide risk. The custody officer checked him at 1.57 pm and left the hatch open. He was found at 2.05
pm having used his shirt as a ligature secured by the open hatch. He was unable to be resuscitated and
died a week later. The defendant argued that as Lynch was of sound mind his voluntary and informed
act of suicide broke the chain of causation.

Held:
The act of suicide was the very thing that the police were under a duty to prevent to treat this as a
novus actus interveniens would deprive the duty of any substance. Therefore the defendant was liable,
however damages were reduced by 50% under the Law Reform (Contributory Negligence) Act 1945.

Volenti non fit injuria in context of sporting events


A participant in sporting events is taken to consent to the risk of injury which occurs in the course of the
ordinary performance of the sport.

Condon v Basi [1985] 1 WLR 866 Court of Appeal


The Claimant suffered a broken leg during a tackle from the Defendant during a football match. The
Claimant was playing for Whittle Wanderers and the Defendant for the Khalso Football Club. Both clubs
were in the Leamington local league. The question for the court was the standard of care expected of a
football player.

Held:
The standard of care varies according to the level of expertise the player has. The Defendant was in
breach of duty as the tackle was reckless even with regards the standard expected of a local league
player. Whilst a participant can be taken to accept the risks of injury inherent to such sporting activities
they do not accept the risk of injury which occurs outside the rules of the game.

Sir John Donaldson MR:

The standard is objective, but objective in a different set of circumstances. Thus there will of course be a
higher degree of care required of a player in a First Division football match than of a player in a Fourth
Division football match.

This was also taken to apply to spectators at sporting events:

Wooldridge v Sumner [1963] 2 QB 43

The claimant was a photographer at a horse show. He was situated within the ring of the horse show
and not behind the barriers where the spectators were housed. He was on a bench with a Miss
Smallwood who was a director of the company which employed the Claimant. He had been taking little
interest in the proceedings and was not experienced in regard to horses. During the competition, one of
the horses, Work of Art owned by the Defendant, came galloping at great speed towards the bench
where they were sitting. The Claimant took fright at the approach of the galloping horse and attempted
unsuccessfully to pull Miss Smallwood off the bench. He stepped or fell back into the course of the horse
which passed three or few feet behind the bench, and was knocked down. The Claimant brought an
action in negligence arguing the rider had lost control of the horse and was going too fast. The
defendant raised the defence of volenti non fit injuria.

Held:
There was no breach of duty so the Claimant's action failed. On the issue of volenti non fit injuria it was
held that consent to the risk of injury was insufficient. There must be consent to the breach of duty in
full knowledge of the nature and extent of the risk.

Diplock LJ:

"The maxim in English law presupposes a tortious act by the defendant. The consent that is relevant is
not consent to the risk of injury but consent to the lack of reasonable care that may produce that risk…
and requires on the part of the plaintiff at the time at which he gives his consent full knowledge of the
nature and extent of the risk that he ran"

This principle has also been held to apply outside of sports, to a high spirited 'game':

Blake v Galloway [2004] 3 All ER 315 Court of Appeal


The claimant, a 15 year old boy, was out with four of his friends including the defendant. The boys
started throwing pieces of bark chippings and twigs at each other. The claimant did not join in at first
but then threw a piece of bark chipping at the defendant hitting him in the leg. The defendant picked it
up and threw it back at the claimant. The piece of bark struck the claimant's eye resulting in serious
injury. The claimant brought an action contending that the injury was caused by the battery and or
negligence of the defendant. The defendant raised volenti non fit injuria. The trial judge rejected the
defence of volenti but held that the damages should be reduced by 50% under the Law Reform
(Contributory Negligence) Act 1945. The defendant appealed contending that there was no breach of
duty and that the judge was wrong to reject the defence of volenti.

Held:
Appeal allowed. In the context of 'horseplay' there is a breach of the duty of care only where the
defendant's conduct amounts to recklessness or a very high degree of carelessness. The defendant had
consented to the risk of injury occurring within the conventions and understanding of the game.

Lord Justice Dyson:

"If the defendant in the present case had departed from the tacit understandings or conventions of the
play and, for example, had thrown a stone at the claimant, or deliberately aimed the piece of bark at the
claimant's head, then there might have been a breach of the duty of care. But what happened here was,
at its highest, "an error of judgment or lapse of skill" (to quote from Diplock LJ), and that is not sufficient
to amount to a failure to take reasonable care in the circumstances of horseplay such as that in which
these youths were engaged. In my view, the defendant's conduct came nowhere near recklessness or a
very high degree of carelessness."

The game was played on the basis that the objects were thrown at no particular part of the body. It
follows that an object thrown in the general direction of a participant, without negligence and without
intent to cause injury, but which happened to hit him in the face, was being thrown in accordance with
the understandings and conventions of the game, and in a manner to which the participants had
consented.

Volenti non fit injuria in relation to drunk drivers


In Dann v Hamilton [1939] 1 KB 509 it was held that a person accepting a lift from a drunk driver was
not to be treated as volens unless the drunkenness was so extreme and so glaring that accepting a lift
would be equivalent of to intermeddling with an unexploded bomb or walking on the edge of an
unfenced cliff.

An example of where this was successfully invoked can be seen:


Morris v Murray [1991] 2 QB 6

The Claimant and Defendant had been drinking all day. The Defendant, who had a pilot licence and a
light aircraft, suggested that they took the aircraft for a flight. The Claimant agreed and drove them both
to the airfield. They started the engine and the Defendant took off but crashed shortly after. The
Defendant was killed and the Claimant was seriously injured. An autopsy revealed that the Defendant
had consumed the equivalent of 17 Whiskeys. In an action for negligence, the Defendant raised the
defence of volenti non fit injuria.

Held:
The defence was allowed. The actions of the Claimant in accepting a ride in an aircraft from an obviously
heavily intoxicated pilot was so glaringly dangerous that he could be taken to have voluntarily accepted
the risk of injury and waived the right to compensation.

The impact of s.148(3) of the Road Traffic Act 1972 (Now s.149(3) RTA 1988) was considered in Pitts v
Hunt and it was held that it precluded the application of the defence of volenti in circumstances where a
person accepted a lift from an intoxicated driver in circumstances where the driver was subject
to compulsory insurance.

Pitts v Hunt [1990] 3 All ER 344 Court of Appeal

The Claimant, Mr Pitts (aged 18), and Mr Hunt (aged 16), were friends. They had been out for an evening
together. Mr Hunt gave the Claimant a lift on the back of his trial motorbike which was a Suzuki 250cc.
He had no licence to ride the bike on the road, indeed the engine capacity limit for a 16 year old to ride
legally would be 50cc. He also had no tax or insurance. The pair consumed alcohol at their destination
and Mr Hunt was twice over the legal limit for driving. Nevertheless, the pair embarked on their journey
home on the motorcycle. Witnesses gave evidence that the two were obviously very drunk and Hunt
was driving recklessly and erratically. He was zig-zagging down the centre of an A road at great speed,
with both the parties shouting and jeering. Mr Pitts was jeering Mr Hunt on and encouraging the
dangerous driving. At one time, Mr Hunt drove dangerously close to a witness in order to scare them.
Unfortunately Mr Hunt hit an oncoming car when he was travelling at speed on the wrong side of the
road. Mr Hunt was killed and the Claimant was left permanently partially disabled. He brought an action
for the injuries sustained against the personal representatives of Mr Hunt. In their defence they raised
the defences of volenti non fit injuria, contributory negligence and ex turpi causa. The trial judge held
that the Claimant could not recover based on the fact that ex turpi causa operated to preclude the
imposition of a duty of care and also that the Claimant was 100% responsible for his own injuries under
the Law Reform (Contributory Negligence) Act 1945. On the issue of volenti he held that s.148(3) of the
Road Traffic Act 1972 precluded the application of the defence. The Claimant appealed.

Held:
Ex turpi causa and public policy did operate to preclude the imposition of a duty of care. The trial judge
was wrong in principle in finding that the Claimant was 100% contributory negligence since the wording
of the Act precluded such a finding. S.148(3) of the Road Traffic Act did preclude the application of the
defence of volenti non fit injuria.

Conclusion
Thus, after analyzing the various judicial precedents it can be concluded that, Volenti non fit injuria
arises when a person is ignorant to the risk that he had voluntarily consented to or has amounted to any
negligence or acted recklessly and caused injury to others or has done anything outside the usual course
of the game is either punished or exempted by the law accordingly.

After reffering the above mentioned cases it is found that it strongly depends on the court to decide
that whether negligence took place or not in the course of action, hence, concept of assumption of risk
and inherent risk related to a game needs more clear and correct definition than the present one with
the evolution of this tort law.