Question 1

Is 'volenti non fit injuria' the same as contributory negligence?

Accepted Answer

No, they are distinct. 'Volenti' is a complete defence based on the claimant's consent to the risk of injury; it requires a subjective assessment of whether the claimant voluntarily agreed. If successful, the claim is defeated entirely. Contributory negligence is a partial defence based on the claimant's carelessness for their own safety. It is assessed objectively and, if successful, only reduces the amount of damages the claimant receives.

Question 2

Can a rescuer be considered 'volenti' if they are injured while helping someone in danger?

Accepted Answer

Generally, no. The courts are reluctant to allow the defence of 'volenti' against rescuers. The principle from Haynes v Harwood (1935) is that a rescuer acting under a moral, social, or legal duty to intervene is not considered to be acting with free and voluntary choice. Their action is seen as a foreseeable consequence of the defendant's negligence, not a true acceptance of the risk.

Question 3

If a statute authorises an activity, does that mean any harm caused is automatically excused?

Accepted Answer

Not automatically. The defence of statutory authority only applies if the harm caused is an inevitable consequence of the authorised activity. If the defendant could have performed the activity without causing the harm, or was otherwise negligent in carrying out their statutory powers, the defence will fail. As established in Geddis v Proprietors of Bann Reservoir, the statute provides authority for the act, not for performing it negligently.

Defences

What you need to know

Defences