Volenti Non Fit Injuria - Volenti in English Law

Volenti in English Law

In English tort law, volenti is a full defence, i.e. it fully exonerates the defendant who succeeds in proving it. The defence has two main elements:

1. The claimant was fully aware of all the risks involved, including both the nature and the extent of the risk; and
2. The claimant expressly (by his statement) or impliedly (by his actions) consented to waive all claims for damages. His knowledge of the risk is not sufficient: sciens non est volens ("knowing is not volunteering"). His consent must be free and voluntary, i.e. not brought about by duress. If the relationship between the claimant and defendant is such that there is doubt as to whether the consent was truly voluntary, such as the relationship between workers and employers, the courts are unlikely to find volenti.

It is not easy for a defendant to show both elements and therefore comparative negligence usually constitutes a better defence in many cases. Note however that comparative negligence is a partial defence, i.e. it usually leads to a reduction of payable damages rather than a full exclusion of liability. Also, the person consenting to an act may not always be negligent: a bungee jumper may take the greatest possible care not to be injured, and if he is, the defence available to the organiser of the event will be volenti, not comparative negligence.

Consent to medical treatment or consent to risky sports on the part of the claimant excludes liability in tort where that consent is informed consent.

For the similar principle in American law, see Assumption of risk

In Canada, the "volenti" principles applies in much the same way as under English law. The leading Canadian cases on point are Dube v. Labar, 1 SCR 649 and Hall v. Hebert, 2 SCR 159.