Volenti Non Fit Injuria and Contributory Negligence: Consenting to a Risk and Failing to Guard Against It

Volenti says the plaintiff agreed to run the risk, and therefore that no duty was broken as against him. Contributory negligence says he was careless about his own safety, and therefore that his award should be cut down. The first is a complete answer and defeats the claim altogether; the second is a partial answer and reduces it in proportion. Since apportionment became available the whole weight of judicial preference has moved to the second, and volenti, once the standard defence in the employment cases, now succeeds in very few.

1. The Comparison

2. Volenti Non Fit Injuria

• Two things must be established: that the plaintiff knew of the risk in its nature and extent, and that he freely and voluntarily agreed to run it. The second is the difficult one.
• Knowledge is not consent. The maxim is volenti non fit injuria and not scienti non fit injuria, so a man who knows of a danger and continues does not thereby agree to bear its consequences.
• Consent must be free. A person who acts under economic compulsion, under a legal or moral obligation, or in an emergency of the defendant's making, does not consent.
• The consent must extend to the legal risk and not merely the physical one. The plaintiff must be taken to have agreed to bear the loss himself, not merely to have accepted that the activity was dangerous.
• Where it succeeds, it succeeds absolutely: the plaintiff recovers nothing.

• Bowater v. Rowley Regis Corporation, [1944] KB 476 puts the point in the form usually quoted: a man cannot be said to be truly willing unless he is in a position to choose freely, and that freedom connotes the absence of any feeling of constraint, so that the maxim can rarely be applied as between employer and workman.
• Imperial Chemical Industries Ltd. v. Shatwell, [1965] AC 656 is the exception that proves the rule. Two experienced shotfirers, both fully aware of the statutory safety requirement and of the risk, deliberately agreed between themselves to test a circuit without taking shelter. The defence succeeded, the plaintiff having freely and expressly chosen the danger in collaboration with his fellow servant and not under any compulsion from the employer.
• Dann v. Hamilton, [1939] 1 KB 509 holds that a passenger who accepts a lift from a driver she knows to have been drinking does not, without more, consent to the risk, unless the drunkenness is so extreme that accepting the lift is like intermeddling with an unexploded bomb.

3. Where Volenti Is Not Available

4. Contributory Negligence

• The plaintiff failed to take reasonable care of his own safety, and that failure contributed to the damage he suffered.
• It is not a breach of a duty owed to the defendant. It is a failure in self protection, which is why no duty analysis is required and why the plaintiff's conduct is judged only against his own interest.
• It was once a complete defence, on the reasoning that a plaintiff who contributed to his own harm could not say the defendant caused it, and the harshness of that rule produced the last opportunity doctrine in Davies v. Mann, (1842) 10 M and W 546.
• It is now met by apportionment. In England the Law Reform (Contributory Negligence) Act 1945 made the change by statute; in India there is no such statute, and the courts have adopted apportionment as a rule of justice, equity and good conscience, reducing the award by the share of blame attributable to the plaintiff.
• Special rules soften it. A child is judged by the standard of a child of that age and understanding; a rescuer is not contributorily negligent merely because he took a risk; and a person put in a dilemma by the defendant's negligence is not held to a fine judgment made in the agony of the moment.
• The subject is examined fully in TORT 025 and TORT 026.

5. Why Volenti Has Shrunk

• So long as contributory negligence was itself a complete defence, courts had no reason to prefer one plea to the other, since both produced the same result.
• Once apportionment arrived the pressure ran all one way. A finding of volenti gives the plaintiff nothing; a finding of contributory negligence gives him most of his claim. A court confronted with a plaintiff who was careless rather than consenting will therefore choose the second.
• The requirements of volenti were tightened in the same period. The insistence on a free and voluntary agreement, and on consent to the legal rather than merely the physical risk, removed most employment cases from its reach.
• Statutory intervention removed others, since a defence cannot be allowed to defeat a duty imposed by statute for the protection of a class.
• What survives is the case of the plaintiff who positively embraced a known danger with full understanding and without any compulsion, of which Shatwell is the standard modern instance.

6. How a Defendant Pleads Them

• Both are pleaded, and in that order. They are not inconsistent: the defendant says first that the plaintiff agreed to run the risk, and alternatively that if he did not agree he was careless about it.
• Particulars are required of each. For volenti, the facts showing knowledge of the nature and extent of the risk and the free agreement to run it. For contributory negligence, the specific acts or omissions alleged against the plaintiff.
• The defendant bears the burden on both, so a bare plea will not survive.
• Where the plaintiff was a child, a rescuer or an employee, the defendant should expect volenti to fail and should concentrate on the apportionment.
• And where the tort is one of strict or absolute liability, neither plea is of any use unless it falls within a recognised exception, consent being one of the seven under Rylands and none being available against absolute liability: TORT 115.

7. The Position Stated Shortly

1. Volenti asserts that the plaintiff agreed to run the risk; contributory negligence asserts that he was careless about his own safety.

2. Volenti is a complete defence; contributory negligence reduces the award in proportion to the plaintiff's share of blame.

3. Volenti requires full knowledge of the nature and extent of the risk and a free and voluntary agreement to run it.

4. Knowledge alone is not consent: the maxim is volenti non fit injuria and not scienti non fit injuria. Smith v. Baker.

5. Bowater v. Rowley Regis holds that the maxim can rarely apply between employer and workman, the need to earn a living removing the freedom of choice.

6. ICI v. Shatwell is the modern instance where it succeeded, two experienced shotfirers having deliberately agreed to disregard a known safety requirement.

7. Volenti is unavailable against a rescuer, in most employment cases, against a breach of statutory duty, and where consent was uninformed or compelled.

8. Contributory negligence is a failure in self protection and not a breach of any duty owed to the defendant.

9. India has no apportionment statute, and the courts apply apportionment as a rule of justice, equity and good conscience.

10. Volenti has shrunk because apportionment gives courts a better instrument for the merely careless plaintiff, and its own requirements were tightened at the same time.