Voluntary assumption of risk

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[1] A plaintiff who is aware of a risk, and still puts himself in the position where the risk might eventuate, cannot recover damages if he suffers harm. There can only be a voluntary assumption of risk if:

  1. Knowledge - the plaintiff had knowledge of the risk.
  2. Voluntary action - the plaintiff voluntarily made the choice to undertake the risk. A plaintiff who was constrained by circumstances from making a free choice will not be regarded as acting voluntarily.

This article is a topic within the subject Torts.

Contents

Required Reading

Sappideen, Vines, Grant & Watson, Torts: Commentary and Materials (Lawbook Co, 10th ed, 2009), pp. 657-671 [16.05-16.60].

Introduction

[2] A voluntary assumption of risk is also called volenti non fit injuria or volens for short (where there is consent, there is no injury). It is a complete defence, which means that if a voluntary assumption of risk is proved, a plaintiff will recover nothing.

The concept was described in Reeves v Commissioner of Police:

"The choice made must be free and unconstrained - ie voluntary, deliberate and informed"[3]

The requirements will be discussed in detail.

Knowledge

A defendant must have knowledge of the risk. However, more then mere knowledge of a risk must be shown. The requirement set in Oran Park v Fleissig is as follows:

  • "The plaintiff must be shown to have fully appreciated the nature and extent of the risk and not merely the existence of a danger."[4]

According to the common law, the question of whether the plaintiff had knowledge of a risk is a subjective one. This means that the court considers the actual knowledge of the party rather than what a reasonable person ought to know. However, statutory amendments have modified the application of this law in certain circumstances:

  • Obvious risk - In the case of an obvious risk, the plaintiff is automatically assumed to satisfy the knowledge requirement. In such cases, the onus becomes on the plaintiff to demonstrate that it was not aware of the risk,

Voluntary

A decision must be entirely voluntary, and not constrained by circumstances. Examples of when a choice may be constrained include:

  • Where the plaintiff was a rescuer.[5]
  • Where the plaintiff was under a disability (such as a lack of mental capacity or being too old).[6]
  • Where the plaintiff was a child.[7]
  • Where the plaintiff was ill-informed.[8]
  • Where the plaintiff was ordered to do something by his employer (and did not choose 'truly freely').[9]
  • Where alternative choices were impracticable. [10]
  • Where the plaintiff had little time to consider.[11]

In such cases, the assumption of risk was not 'truly voluntary' and thus the defendant could not rely on voluntary assumption of risk as a defence.

Defence usually unsuccessful

The courts are reluctant to recognise voluntary assumption of risk. Courts are quick to rule that the plaintiff did not fully appreciate the risk or that his decision was constrained by vitiating factors. An example of a court reluctant to find a voluntary assumption of risk includes Carey v Lake Macquarie City Council:

  • "The question is not simply whether the plaintiff freely and voluntarily decided to embark upon a course of conduct that involved a risk of which he or she was aware. There must also be some conscious advertence to the possibility that the known risk might eventuate, and a decision to proceed with the conduct regardless. It is not enough that the plaintiff knows of the physical facts or circumstances that constitute the risk and exposes him or herself to them, although proof of this will in many cases be sufficient to support an inference that the plaintiff voluntarily assumed the risk."[12]

Other examples include Suncorp Insurance & Finance v Blakeney[13] and McPherson v Whitfield[14], in which passengers knowingly driving with a drunken driving were not found to be voluntarily assuming the risk because they fully appreciate the driver's inability to drive. Instead, the plaintiffs conduct amounted to contributory negligence, which is not a complete defence.

Moreover, when the circumstances are such as to argue a voluntary assumption of risk, defendants often prefer to argue them through different means, such as:

  • No breach of a duty - on the basis of an inherent risk. The defendant argues that the plaintiff was taking part in an activity in which the risk was inherent and the harm could not be avoided through reasonable care. This is usually the case with sporting accidents.
  • Damage outside the scope of the defendant's duty - remoteness. The defendant argues that he was not obliged to take reasonable care for the voluntary acts of the plaintiff.
    • For example, a plaintiff was harmed when he was squeezing himself out of a train window to graffiti the wall. Rather than pleading voluntary of risk, the defendant pleaded that such damages are outside the scope of duty.[15]
  • Contributory negligence - the defendant's liability is reduced by a finding of contributory negligence on behalf of the plaintiff.

End

This is the end of this topic. Click here to go back to the main subject page for Torts.

References

Textbook refers to Sappideen, Vines, Grant & Watson, Torts: Commentary and Materials (Lawbook Co, 10th ed, 2009).

CLA refers to Civil Liability Act 2002 (NSW)

  1. Textbook, pp. 658-60 [16.10]
  2. Textbook, pp. 658-60 [16.10]
  3. [2001] 1 AC 360
  4. [2002] NSWCA 371, Einstein J at [104]
  5. Haynes v Harwood [1934] 2 KB 240; Reeves v Commissioner of Police [2001] 1 AC 360
  6. Reeves v Commissioner of Police [2001] 1 AC 360
  7. Reeves v Commissioner of Police [2001] 1 AC 360
  8. Reeves v Commissioner of Police [2001] 1 AC 360
  9. Bodwater v Rowley Regis Corp [1944] KB 476, 479 (Scott LJ)
  10. Insurance Commissioner v Joyce (1948) 77 CLR 39, 58 (Dixon J)
  11. Avran v Gusakoski [2006] WASCA 16
  12. [2007] NSWCA 4, McLelland J at [107]
  13. (1993) 18 MVR 361
  14. [1995] QCA 62
  15. Rundle v State Rail Authority of NSW [2002] NSWCA 354
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