Did you know: Some legal principles are so fundamental that they can completely defeat a negligence claim, even where fault is admitted? One such principle is volenti non fit injuria.
What does volenti non fit injuria mean?
Volenti non fit injuria is Latin “to a willing person, no injury is done”. In legal terms, it refers to the principle of voluntary assumption of risk. The principle provides that a person cannot recover compensation for harm or injury where they freely and knowingly consented to the risk that resulted in the injury. Even where another party has acted negligently, a claim may fail if the injured person voluntarily accepted the relevant risk. The defence is underpinned by the idea that the law does not regard a wrong as having been done to a person who has consented to the risk of harm.
When does the defence apply?
The defence of volenti non fit injuria applies only in limited circumstances and carries a high evidentiary threshold. To succeed, a defendant must establish that the plaintiff:
- had actual knowledge of the specific risk that materialised:
- fully appreciated the nature and extent of that risk; and
- freely and voluntarily accepted that risk.
A general awareness that an activity carries some danger is not sufficient. The focus is on consent to the particular risk that caused the injury. Where established, the defence operates as a complete bar to recovery, unlike contributory negligence, which merely reduces damages.
Norman v Transport Accident Commission
The defence of voluntary assumption of risk was recently examined by the Victorian Court of Appeal in Norman v Transport Accident Commission [2024] VSCA 123. In that case, the plaintiff suffered serious injuries while travelling as a backseat passenger in an unregistered utility vehicle on a rural road near Benalla. The vehicle had previously been used for reckless driving activities, including burnouts, skids and high-speed manoeuvres on gravel roads, and was in poor condition.
Although the driver’s negligence was admitted, the Transport Accident Commission raised the defence of volenti non fit injuria, arguing that the plaintiff was aware of the vehicle’s condition, the manner in which it had been driven previously, and the risks associated with that conduct, and nevertheless chose to travel in it. The jury accepted that the plaintiff had knowledge of and voluntarily assumed the risk of injury, with the result that his common law claim failed entirely. The plaintiff appealed the verdict; however, the Court of Appeal upheld the jury’s decision, confirming that it was open to the jury to conclude that the defence had been made out.
The content of this article is intended to provide a general guide to the subject matter. Specific advice should be sought about your specific circumstances.
