Howzat! (or Volenti again?)

alessandro-bogliari-oDs_AxeR5g4-unsplash (1)

Photo by Alessandro Bogliari on Unsplash

Volenti non fit injuria (or to one who is willing a wrongful act cannot be done) is one of the most common defences used to defeat a claim for negligence. I very often refer to this defence as hell mend you! You have knowingly and willingly placed yourself in harm’s way and you have no one to blame but yourself for anything bad that happens to you.

I always remember telling my students the cautionary tale of the unfortunate man who was visiting Mexico City Zoo. He accidentally dropped his mobile phone into the Lions’ Den. The beasts appeared to be sleeping, so our foolhardy friend jumped into the Den in an attempt to retrieve said phone. At that point, he received a call on his phone; one of the lions woke up; saw an intruder in its territory …

… I think you can guess the end of the story. Our hapless friend was taken out of the Den barely alive. Volenti non fit injuria anyone?

Recently, a number of stories have appeared in the media which made me think about this defence.

Both stories involve the sport of cricket. In the first incident, a player (Steve Smith) was injured during The Ashes Tournament and, in the second incident, an umpire (referee) died as the result of injuries sustained during a cricket match.

Links to these stories can be found below:

 http://news.sky.com/story/the-ashes-steve-smith-forced-off-field-after-being-struck-by-92mph-delivery-11787547

htthttp://news.sky.com/story/cricket-umpire-hit-by-ball-during-match-dies-in-hospital-11786256

A range of sports (cricket included) involve a certain amount of risk to the participants, referees and, on occasion, the spectators. It has not been unknown for players and referees to be injured because the sport is of the contact variety. Spectators of golf, football and tennis are also not immune from the occasional injury – especially if they are close to the action.

This is where the defence of volenti non fit injuria may be applicable to such situations. The essence of this defence is that the pursuer (or injured party) has, with full knowledge of the facts, voluntarily assumed and accepted the risk of injury and, in this way, has absolved the defender of the consequences of the defender’s breach of duty.

The defender still owes a duty of care but the chain of causation has been broken by the pursuer voluntarily undertaking the risk.

In sporting situations, of course, the participants must stay within the normal, ordinary rules of the game to benefit from this defence. Deliberate acts of aggression or violence or bad temper by a player which cause injury (up to and including death) would almost certainly not be covered by the defence.

In 1995, the British tennis player, Tim Henman (and his doubles partner) were disqualified from Wimbledon after Henman had hit a ball girl (they are still referred to using this description – apparently) with a tennis ball. This occurred in a moment of frustration when Henman hit the ball with his racket. The young woman received a blow to her ear when the ball made contact. In some respects, Henman was lucky to escape with disqualification alone:

The rules precisely state that a player must be in control of his actions on court, and in such cases there is no choice but to default automatically on the basis of unsportsmanlike conduct. The ball-girl, Caroline Hall, has been taken home and will undergo a thorough medical examination. Tim Henman is extremely upset about this freak accident, and although rare, the rules clearly state that default is the only course of action in cases of this nature.

Yes, the injured party may have accepted the risks associated with this type of employment at Wimbledon, but surely not totally reckless actions from a player who should have known and behaved in a better fashion.

A link to this story as reported by The Independent can be found below:

https://www.independent.co.uk/sport/henman-and-bates-are-disqualified-in-doubles-1588962.html

There are several well known cases dealing with the defence of volenti non fit injuria:

ICI v Shatwell [1965] AC 656 the pursuer and his brother were explosives experts who, contrary to instructions issued by their employer, agreed to test their detonators before returning to a safety shelter. There was an explosion and pursuer was injured while his brother was killed.

Held: by the House of Lords that the employer could successfully plead volenti as the pursuer and his brother had agreed to run the risk of injury by not returning to the safety shelter.

Morris v Murray [1991] 2 QB 6 the pursuer and defender had been consuming a large amount of alcohol throughout the course of the day. The defender, a qualified pilot, then made a suggestion to go for a ride in his light aircraft and the pursuer readily assented to this (in fact, he drove them both to the airfield). Both parties got into the plane and the pilot flew it away from the airfield. The plane later crashed, killing the pilot in the process and severely injuring the pursuer. A post mortem later established that the defender had drunk in the region of 17 whiskies. The pursuer raised an action in damages against the defender’s estate.

Held: by the English Court of Appeal that the pursuer’s action should fail because the legal representatives of the defender’s estate successfully pleaded the defence of volenti non fit injuria. Although the pursuer had been drunk, he was not insensible and he knew exactly what he was doing – he had voluntarily accepted the risks of getting into a plane with a drunk pilot. In fact, the pursuer had assisted the pilot to get the plane ready for take-off!

Related Blog article:

Volenti non fit injuria? (or hell mend you!)

https://seancrossansscotslaw.com/2019/01/26/volenti-non-fit-injuria-or-hell-mend-you/

Copyright Seán J Crossan, 9 December 2019

Published by

sjcrossan1

A legal blog by the author of Introductory Scots Law: Theory & Practice (3rd Edition: 2017; Hodder Gibson) Sean J. Crossan BA (Hons), LLB (Hons), MSc, TQFE I have been teaching law in Higher and Further Education for nearly 25 years. I also worked as an employment law consultant in a Glasgow law firm for over a decade. I am also a trade union representative and continue to make full use of my legal background. I am a graduate and postgraduate of the Universities of Dundee, London and Strathclyde. Please note that this Blog provides a general commentary about issues in Scots Law. It is not intended as a substitute for in-depth legal advice. If you have a specific legal problem, you should always consult a suitably qualified Scottish solicitor who will be able to provide you with the support that you require.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s