Did the claimant consent to the risk of injury?

The following PI & Clinical Negligence practice note provides comprehensive and up to date legal information covering:

  • Did the claimant consent to the risk of injury?
  • Requirements for bringing the defence
  • Capacity
  • Knowledge and willingness
  • Implied agreement
  • Volenti and statute

Did the claimant consent to the risk of injury?

The essence of a defence of volenti non fit injuria (‘to a willing person, no injury is done’) is that the claimant understands the danger of the situation and willingly consents to the risk of injury. In such circumstances, should injury occur, the claimant has no reason for complaint.

The defence is often shortened to volenti.

If established, volenti is a complete defence. The justification is that it is not possible to apportion consent and say that a claimant agreed to run certain risks but not others. As such, the defence will only be successful in clear cases.

The volenti defence will rarely be available in claims for breach of statutory duty.

Requirements for bringing the defence

Three factors must be present in order to run the defence:

  1. capacity

  2. knowledge and willingness

  3. agreement (express or implied)

Capacity

The claimant must have the capacity to give their consent in the relevant way. Children and those suffering from mental illnesses may be found to lack the appropriate capacity to consent to the risk of injury.

Knowledge and willingness

The courts have held that simple knowledge of the risk is not equivalent to acceptance of it. The defendant must prove that the claimant:

  1. had full knowledge of the nature and extent of the risk

  2. gave their consent freely: consent is cancelled by coercion, which includes economic coercion, eg

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