The latest Blog title sounds like the name of a quaint English or Scottish public house, but as you might expect it relates to matters legal.
This last week, I have just begun to teach my First Year university students about the law of delict (or tort in other common law jurisdictions) and, as always, I’m looking for relevant cases or stories in the news to illustrate this area.
Obligingly enough, a report of a case came through on Friday 17 January 2020 about a plumber called Darren Conquer who has just been awarded £540,000 in damages by the Outer House of the Court of Session as a result of being the victim of medical negligence (see Darren Conquer v Lothian Health Board  CSOH 8).
As I often say to students the basis of the law of delict is loss or injury wrongfully caused (or as the Romans would have said: damnum injuria datum).
Mr Conquer had injured his arm while playing football and he had, subsequently, undergone medical treatment for this. This is where it gets interesting: the injury had occurred some 16 years ago, but Conquer was not suing the person or persons who had injured him during the football match.
This is, of course, where the issue of volenti non fit injuria arises. When you engage in a physical sport, like football, you must accept the risk of possible injury – on the proviso that all of the players conduct themselves properly and within the rules of the game.
The basis of the pursuer’s claim was that the Health Board, as the employer of the doctors who treated him, was vicariously liable because the injury to the arm been misdiagnosed and, consequently, the proper medical procedures had not been followed. Put simply, the pursuer was arguing that the Health Board was culpable or at fault for his losses.
Had the correct diagnosis been made by the doctors and the correct treatment applied, the pursuer would have made either a full recovery or nearly a full recovery and would have been able to return to his job within 6 months of sustaining the injury. The real issue seems to have centred around the failure by the doctors to carry out surgery on the pursuer at a much earlier and vital stage of his treatment.
In short, the medical negligence was the primary cause (the causa causans) of the pursuer’s losses i.e. his inability to work at his chosen trade of plumber (a skilled trade where he had the potential to make a good living).
The doctors treating Conquer owed a duty of care to him and they had been negligent in the manner of both the diagnosis of the severity of the injury and the treatment which followed (or didn’t follow perhaps more accurately).
A link to the opinion of Lady Carmichael in the Outer House can be found below:
For another recent case on medical negligence, please see the Opinion of Lord Pentland in George Andrews v Greater Glasgow Health Board  CSOH 31.
In the above case, the pursuer, the partner of a woman who died as a result of medical negligence, was successful in his claim for damages.
Lord Pentland noted:
“Since I have found that (a) Dr Izzath failed to advise the deceased that she should be admitted; (b) that his failure to give her that advice was negligent; and (c) that the deceased would have accepted the advice had it been given, I need not make any separate finding as to the deceased’s mental state.”
His Lordship went on to observe that:
“I would merely reiterate that I am in no doubt that if Dr Izzath had advised the deceased that she required to be admitted to hospital, she would have accepted his advice.”
A link to Lord Pentland’s Opinion can be found below:
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.
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:
There are several well known cases dealing with the defence of volenti non fit injuria:
ICI v Shatwell  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  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!
In Chapter 3 of Introductory Scots Law, I discuss the defences available to parties who have been accused of causing loss or injury by reason of them committing a negligent act.
One of the best known defences to an action for negligence is volenti non fit injuria. I often like to say to my students that, colloquially, this translates as the hell mend you defence! The pursuer has knowingly embarked on a reckless and dangerous course of action and has accepted the consequences of the risk. S/he has only himself to blame for the losses or injuries caused. For the defender in a civil action, volenti is a complete defence – unlike the concept of contributory negligence which is said to be a partial defence.
The case law relating to this defence is well established and it’s probably worth mentioning some of the judgements where volenti has featured prominently:
ICI v Shatwell  AC 656 two brothers were blown up while testing detonators before they had taken refuge in a safety shelter. The Shatwell brothers had acted in complete defiance of their employer’s instructions. The employer was able to rely on the defence of volenti and the claim for negligence was dismissed.
McGlone v British Railways Board (1966) SC (HL) 1 – a 12 year old boy injured while climbing an electricity transformer on the defender’s property should have had the foresight and the presence of mind to know that he was engaging in a highly dangerous activity. The boy’s claim for damages was dismissed.
Titchener v British Railways Board (1984) SLT 192, SC (HL) 34 – a 15 year old girl who was struck by a train while trespassing on the defender’s property could not rely on the defender’s negligence. She was old enough to know better i.e. she knew that the railway was a dangerous place. As in the previous two decisions, the girl’s claim for damages was dismissed.
A recent case before the Sheriff Court’s All Scotland Personal Injury Court and the subsequent appeal to the Sheriff Appeal Court in Edinburgh illustrates whether it will be permitted to advance volenti as a legitimate defence to a breach of a duty of care.
Raybould v T N Gilmartin (Contractors) Ltd  SAC (CIV) 31
Diane Raybould, a 59 year old woman with mobility problems, sustained injuries at her home in West Forth Street, Anstruther on 3 February 2015 while attempting to gain access to the property. The front door of the property led directly on to the pavement which, at the time of the accident, had been dug up by T N Gilmartin (the contractor). Fife Council had engaged the contractor to install street lighting. Mrs Raybould had been attempting to access her property via the front entrance. She was aware of the existence of the pavement works and there were barriers around the excavations. There were, however, no planks or boards laid down by the contractors to afford easier access to the property. In short: “The area was a mess.” The contractor argued that by attempting to navigate such an obviously dangerous obstruction, Mrs Raybould had voluntarily assumed the risk of harm or injury to herself. In other words, the contractor should have benefit from the defence of volenti non fit injuria.
The Hearing before the All Scotland Sheriff Personal Injury Court
At the Hearing in the Sheriff Court, Mrs Raybould’s claim for damages against the contractor was dismissed.
The Sheriff emphasised a number of issues which had clearly formed the basis of the judgement against Mrs Raybould:
She was perfectly aware that there was no board or plank lying across the pavement excavations to assist her to access her home relatively safely;
2. She could not plausibly claim that she was unaware of the dangers of attempting to access her property via the front door;
3. She admitted that she felt a strong sense of apprehension or anxiety about any attempt to navigate the obstacles at her front door;
4. She had mobility problems and had to use a walking stick; and
5. She knew that pavement barriers had been placed by the contractors to deter people from using the footpath outside her home.
The Sheriff also found it compelling that Mrs Raybould could have chosen to enter her home via the property’s back door. In fact, there was no pressure of time on her to choose the front door and she never said that she was unable to use the back door to the property.
The Sheriff was strongly of the opinion that Mrs Raybould had been unable to demonstrate that the contractor’s acts or omissions had caused her to fall and sustain injury. Therefore, any alleged breach of the duty of care on the part contractor could not be said to be the proximate cause of the accident. If anything, the proximate cause of Mrs Raybould’s injuries was her decision to attempt a dangerous crossing of the pavement to gain access to her front door.
Interestingly, the Sheriff also entertained the possibility that, if the defence of volenti could not be relied upon by the contractor, the partial defence of contributory negligence would be appropriate in that Mrs Raybould would be 80% liable for her injuries.
(We shall return to the issue of contributory negligence later in this Blog when we discuss the findings of the Sheriff Appeal Court).
Taking all these factors into consideration, the Sheriff concluded that the contractor should be allowed to rely on the defence of volenti non fit injuria. Consequently, Mrs Raybould’s action for damages was dismissed and she was ordered to pay the costs of the contractor.
Mrs Raybould was, however, permitted to appeal to the Sheriff Appeal Court in Edinburgh on a point of law.
Sheriff Principal Stephen QC gave the opinion of the court which overturned the Sheriff’s original decision in favour of T N Gilmartin. In no way could it be said that Mrs Raybould had waived or released T N Gilmartin from its duty of care to her. The contractor was, therefore, liable in damages to Mrs Raybould. That said, however, it was clear that Mrs Raybould had contributed equally to the negligence by the contractor and, consequently, any damages payable should be reduced by 50% as per the Law Reform (Contributory Negligence) Act 1945.
The Sheriff had correctly stated that Mrs Raybould’s conduct was in some way to blame for her injuries, but he had also failed to assess the blameworthiness of the contractor (as per the guidelines laid down in the UK Supreme Court’s decision in Jackson v Murray  UKSC 5). In Jackson, the UK Supreme Court stressed the importance of assessing the blameworthiness of all the relevant parties in situations where contributory negligence applied.
Sheriff Principal Stephen QC made the following remarks:
“Volenti, in effect, amounts to a waiver by the pursuer of the defenders’ liability to her in damages. There must be proof that the pursuer knew of the risk (sciens) and also that she accepted the risk or voluntarily assumed the risk (volens). In this case there is no suggestion that the pursuer either implicitly or explicitly gave any such waiver or that the circumstances would allow the court to infer that the pursuer has impliedly consented to take the risk. It is accepted on behalf of the defenders that the pursuer was not asked about “waiver” or whether she was prepared to absolve the contractors of any liability they may have towards her.”
The learned judge went on to observe that:
“It is a common place activity and foreseeable that a householder such as the pursuer [Mrs Raybould] would seek to enter her home by the front door. The pursuer asked for assistance before proceeding. She used her stick to assist her by providing another point of contact with the ground. … The sheriff’s conclusion that volenti applies permeates his reasoning. However, we have found that volenti does not and cannot apply to the facts of this case.”
Interestingly, Sheriff Principal Stephen QC observed that the contractor had not actually advocated the defence of volenti in its pleadings before the Sheriff at the original hearing. In point of fact, it was the Sheriff who took it upon himself to introduce the defence of volenti! This was clearly an example of the Sheriff “innovating”.
At both the original trial and the appeal hearing, Thomson* and Stewart* were quoted with approval in relation to volenti. These authorities had made the point that volenti had a “very restricted application” and could provide a complete defence to a breach of a duty of care. In circumstances, where the defence of volenti is applicable, the pursuer must actually be aware of the risk and consent to the consequences of the defender’s breach of duty.
*(Thomson on Delict (Chapter 8); and Stewart: Reparation: Liability for Delict (Chapter 30)).
The Sheriff should not have entertained the issue of volenti in the first place. As Sheriff Principal Stephen QC stated: ” volenti does not and cannot apply to the facts of this case.”
The correct approach to take was that of contributory negligence.
A link to the opinion of the Sheriff Appeal Court can be found below: