First Principles of Business Law

7. Defences

7.4. Situations in which a plaintiff assumes the risk of harm

Should a defendant be liable for harm suffered by a plaintiff when the plaintiff knew that they were engaging in activity that involved the risk of such harm, and accepted that risk?

This situation is known as 'volenti non fit injuria', which can broadly be translated as 'the willing cannot suffer a legal wrong'. In other words, a person who voluntarily accepts a known risk of injury does not acquire a legal right to compensation if the harm occurs.

The courts have been somewhat reluctant to apply this doctrine. To succeed, a defendant must show that the plaintiff perceived the existence of the danger; fully appreciated the nature and extent of the danger; and voluntarily accepted the risk involved, either expressly or impliedly. However, in many cases, these requirements are difficult to satisfy.

The example on the following sceen illustrates the requirements of the common law doctrine. Then some important legislative changes are explained.