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Saturday, 2 October 2010

Volenti non fit injuria

Years ago, when I learned my Law of Tort, a standard defence against personal injury or damage claims was that of volenti non fit injuria; to a willing person, no harm is done. A rugby player who had voluntarily played in a game of rugby, knowing the expected risks and the behaviour of players, could not successfully claim for having his shirt ripped or his eye blacked, but if his opponent hit him on the head with a Polo mallet he may have a case. It was a sensible little legal tenet and I have often wondered what became of it. 

Now it seems, following Lord Young's report, it may be rediscovered. Cheese flonkers and barrel dwilers may once again race down slippery grassy slopes in pursuit of their cheese, the citizens of Lewes may burn barrels of tar and young boys may test champion conkers and suffer the pain of bruised knuckles made agonising in the November cold. Excellent. 


Anonymous said...

Indeed Sir, a great moment.

I've thought for some time, that to take the ambulance chasers/HSE lunacy to the nth degree, we would all have to sign a disclaimer on birth (god parents - you could sue?): that anything we do, is of our own free will and that nobody is to blame for accidents, misadventure of one's own volition/existence/fault - or something to that effect.

Edward Spalton said...

Trade unions have a rightful function in pursuing workmens' compensation claims and trade union officials often make their reputations from the vigour with which they pursue them - regardless of the frequently reckless behaviour of their members.

Vic Feather (TUC leader) was recounting such a case after his retirement in the Seventies. The workman was obviously largely responsible for his own misfortune. The judge asked. "Mr. Feather, is your member not aware of the principle "Volenti non fit injuria"?

Feather, knowing he was on a loser, replied "They talk of little else in Bradford, my Lord". He was quite a humorous raconteur.

English Pensioner said...

And it should apply to other areas as well.
If a burglar breaks into my home (doing so of his own free will) he should be prepared to accept the consequences, ie a shotgun fired in his face!

Captain Ranty said...

I used the exact same argument to support pubs that wanted to allow people to smoke. With a sign on the door saying "Smoking Allowed" anyone who entered knew there would be erm, deadly* second hand smoke inside and that they had the option to turn around and find somewhere else to drink. They couldn't then at a later date say that they were forced to breathe it in.

* having read most of the (78) main studies I know that the risk is slim to nothing. Some even claim protective benefits.


Anonymous said...

Good news indeed - but good news often sounds better than it is because no-one mentions the caveats - they're always there - and I don't imagine for a moment that this will have any effect on the infamy of the 'Spanner' case, Regina v Brown, a massive injustice.

Thanks for the piece - I shall watch closely for developments here.

Anonymous said...

@Anon 13:52

While R v Brown was, from a moral standpoint, a horrendous event, it was wholly correct in a purely legal sense because volenti non fit iniuria has never applied to criminal cases.

As Raedwald says, it is a defence in Tort (or Delict, if you're on the right side of Hadrian's Wall) which is a civil matter. R v Brown was a criminal, not civil, offence. Thus it is the supreme irony that the defendants in Brown could be prosecuted and jailed by the state for assault but could not be sued in tort by their (willing - volentes) victims.