Personal injury practitioners are well aware that where a duty to take reasonable care is breached, resulting in reasonably foreseeable loss and injury, an injured person has the option to pursue a claim for damages. 

A defender may respond to such a claim in any number of ways. One available defence is that the injured person brought on such harm through their own action or inaction, and thus, the defender should not be held liable. This is the maxim volenti non fit injuria –“to a willing person, injury is not done”.

Early cases 

The volenti defence is a complete defence which will absolve a defender. It cannot apply without a finding that a defender owed a duty to take reasonable care and thereafter breached that duty. As such, a successful application of volenti will be dependent on the individual facts of the case (Smith vs. Charles Bakers & Sons (1891) A.C. 325).

In order for a defence of volenti to succeed, it is essential that a defender proves that the pursuer knew of the risk of injury and accepted or voluntarily assumed that risk.

Following the early judgement in Yarmouth vs. France (1887) L.R. 19 Q.B.D. 647, a defender must show more than a “mere knowledge of danger” and prove that the pursuer had a full appreciation of the extent of that danger.

Since these early decisions were issued, the concept of volenti has been the focus of interesting judicial discussion across the UK. 

More recent cases 

Toms vs. Royal Mail Group plc, 2006 S.L.T. 431 

This case involved a tragic road traffic incident in which a lorry driver was fatally injured after falling asleep at the wheel. The accident occurred at night, when the pursuer was working for the defender, but he also worked for another employer during the day. The surviving children pursued a claim against Royal Mail on the basis that they, as his employers, were aware the deceased had two jobs yet permitted him to continue to drive at night when he would be tired. Ultimately, a duty of care was not established on the basis that the defender was unaware of the deceased’s second job, meaning a plea of volenti was irrelevant. However, volenti was considered in obiter.

The presiding Judge, Lord Glennie, noted that the deceased’s actions, though foolhardy, were not enough to establish a knowledge of the risk of his actions. He noted that the deceased’s foolhardiness would be the “very thing which […] was foreseeable and against which it was the defenders’ duty to guard,” indicating that this defence would not have been successful had a duty of care been established. In addition, Lord Glennie notes that a distinction must be made between a volenti defence and a defence of novus actus interveniens (the maxim which indicates that a “new intervening act” will break the chain of causation), indicating the care and precision that must be taken when drafting defences in these matters. 

Raybould vs. T & N Gilmartin (Contractors) Limited, 2019 S.L.T. (Sh Ct) 1 

This case was pursued by Digby Brown and involved a pursuer who resided near to the installation of street lighting. An excavation was underway but no footway boards or other safe routes for access and egress were in place. Navigating the route to her home, the pursuer tripped and fell, to her injury.

In the first instance, the maxim of volenti was applied by the sheriff and the defender was assoilzied. This defence had not appeared in the pleadings. The matter was successfully appealed and the initial judgement was recalled, replaced with a finding of negligence discounted by contributory negligence of 50%.

Each vital element of volenti was considered in this case. It was noted that there must be a breach of a duty of care for volenti to be considered, and that, if successful, volenti is a complete defence.

The maxim and its nature are put in clear form by Sheriff Principal M Stephen: “Volenti, in effect, amounts to a waiver by the pursuer of the defenders' liability to her in damages. There must be proof that the pursuer knew of the risk (sciens) and also that she accepted the risk or voluntarily assumed the risk (volens).”

White Lion Hotel vs. Deborah Jayne James, [2021] EWCA Civ 31 

This widely reported English case concerned a hotel guest who was fatally injured after falling from an upstairs window. This was pursued under the Occupiers’ Liability Act 1957. It is important to note that the maxim of volenti is expressly preserved by the 1957 Act under Section 2(5), and is likewise preserved by its Scottish counterpart, Section 2(3) of the Occupiers’ Liability (Scotland) Act 1960.

Though volenti was not referred to in submissions, the defender argued that an occupier has no duty to act where (i) the danger is obvious; and (ii) the deceased chose to take an action that led to the accident. It was noted by the presiding Judge, Lady Justice Nicola Davies, that “the maxim presupposes a tortious [or delictual] act by the defendant” and that “the test is a high one.” No finding was made that the deceased knew and accepted that the risk had been created by the appellant’s breach of duty or that he had deliberately absolved the appellant by his actions or by waiving his right to sue. As such there was no finding of volenti, however contributory negligence was applied at 60%. 

The Exception to the Rule 

Suzanne Toner v Glasgow Airport Limited, [2019] SC EDIN 78 

This case involved a pursuer who had attempted to rescue an elderly woman who had become trapped between automatic “RAID” doors at Glasgow Airport. In doing so, the pursuer was repeatedly struck by the closing doors and she was injured. Volenti was pled on the basis that the pursuer had voluntarily intervened, thereby accepting a risk of injury.

In this case, volenti was rejected due to the pursuer acting as a rescuer. A claim for contributory negligence was also rejected. This is due to the argument that it would be against the public good to penalise a pursuer who put themselves in harm’s way to protect another individual. This is further rationalised in the case of Steel vs. Glasgow Iron & Steel, 1944 SC 237. In Steel, Lord Keith discussed in some detail that the intervention of a bystander to rescue someone amounted to a “natural and probable consequence of the initial negligence”. As such, they are an “additional victim of the risk created by the wrongdoer” and ought not to be considered to be at fault if their actions were justified. 

The [Other] Exception to the Rule 

Similarly to rescuers as discussed above, as with all good rules, there is a further notable exception to this defence. Vitally for practitioners of personal injury law in the UK, passengers of a drunk driver have a statutory protection from volenti by virtue of Section 149 of the Road Traffic Act 1988. Rather, in these cases contributory negligence may apply. This exclusion does not apply to those voluntarily embarking a plane operated by a drunk pilot, however (as per the unusual case of Morris vs. Murray [1940] 3 All ER 801).

Practice Points 

  • Volenti is a complete defence. 
  • Volenti cannot apply without a finding that the defender owed a duty of care which they had breached. 
  • To succeed with a volenti plea, the defence requires to prove:
    • the pursuer knew of the risk; and 
    • the pursuer accepted or voluntarily assumed the risk. 
  • Volenti must be included in pleadings to be considered. 
  • As a defence, the burden of proof shifts to the defender when pled.