Mere Knowledge Does not Imply Assent
For the maxim volenti non fit injuria to apply, two points have to be proved:
(i) The plaintiff knew that the risk is there.
(ii) He, knowing the same, agreed to suffer the harm.
If only first of these points is present, i.e., there is only the knowledge of the risk, it is no defences because the maxim is volenti non fit injuria. Merely because the plaintiff knows of the harm does not imply that he assents to suffer it.
Bowater v. Rowley Regis Corporation
In Bowater v. Rowley Regis Corporation, the Court held that the defence of volenti non fit injuria was not available because the employee’s consent was not free and voluntary.
The plaintiff, a cart driver, protested against driving a horse known to be dangerous but obeyed his employer’s order and was injured when the horse bolted.
The Court ruled that merely obeying an employer’s instructions does not mean the employee has willingly accepted the risk.
In employer-employee relationships, the defence of volenti non fit injuria applies only when the employee freely and knowingly agrees to bear the risk, not when the work is performed under pressure or fear of disobeying the employer.
Smith v. Baker
In Smith v. Baker, the House of Lords held that mere knowledge of a risk does not amount to consent under the doctrine of volenti non fit injuria.
The plaintiff knew that stones were being carried over his head while he worked, but he had not voluntarily agreed to bear the risk, especially when the danger was increased by the employer’s negligence in failing to provide proper warning and safety.
The Court ruled that an employee does not lose the right to claim compensation merely because he continues working despite knowing the risk.
For the defence of volenti non fit injuria to succeed, the employer must prove that the employee freely and willingly accepted both the risk and its legal consequences, which was not established in this case.
Imperial Chemical Industries v. Shatwell
The landmark case of Imperial Chemical Industries v. Shatwell establishes that the defense of volenti non fit injuria is fully operational when an employee deliberately contravenes statutory provisions and defies explicit employer orders.
When technical jurisprudence is merged with everyday reality, the court’s ruling underscores that an employer cannot be held vicariously liable for a workplace injury if two workers freely and knowingly conspire to bypass mandatory safety regulations.
While the plaintiff argued that a breach of statutory duty should invalidate the defense of consent, the House of Lords held that the joint, voluntary assumption of a known risk bars recovery.
Dann v. Hamilton
- The landmark decision in Dann v. Hamilton establishes a critical boundary for the volenti defense, ruling that a passenger’s knowledge of a driver’s intoxication does not automatically equal consent to a subsequent negligent injury.
When technical jurisprudence is merged with everyday reality, the court clarifies that unless a driver’s drunkenness is so extreme that riding with them is equivalent to a clearly suicidal act—like handling an unexploded bomb—the defense of volenti non fit injuria will fail.
While the case faced heavy academic criticism for ignoring the concept of contributory negligence, that omission occurred solely because the defense failed to plead it.
- The core takeaway is that the law draws a firm line: simply knowing that a person is acting negligently or has a history of carelessness does not strip a plaintiff of their legal remedy if they choose to travel with them.
Negligence of the defendant
The legal doctrine under negligence of the defendant establishes that the defense of volenti non fit injuria cannot be used to shield a defendant from their own careless behavior, as the law presumes a plaintiff only consents to the ordinary, non-negligent risks of a situation.
When technical jurisprudence is merged with everyday reality, we see that while a sports participant accepts the incidental collisions of a lawfully played hockey game, or a pedestrian accepts the natural hazards of a railway tunnel as in Slater v. Clay Cross Co. Ltd., they never waive their right to expect reasonable care.
As Denning L.J. ruled, knowledge of a danger may raise questions of contributory negligence, but it does not serve as a total bar to a lawsuit if an opponent unlawfully strikes you with a stick or a train driver violates explicit safety instructions.