Volenti (Consent)

Volenti Non Fit Injuria

"No injury can be done to a willing person." The defense of consent is based on this principle and is a complete defense. There are 3 elements to this defense.

Knowledge of the Precise Risk Involved

The defendant must show that the claimant had full knowledge of the nature and extent of the risk. This is a subjective test, as seen in Morris v Murray.

Exercise of Free Will by the Claimant

The claimant's agreement must be voluntary and made with a genuine choice. Volenti does not usually apply to rescuers (Haynes), but can apply if the rescuer's actions were unreasonable or unforeseeable (Cutler). Volenti also usually does not apply to employees (Smith v Baker), as they are typically in a position where they cannot afford to give up their job.

Voluntary Acceptance of the Risk

The claimant must voluntarily accept the risk. This can be express consent or implied from the claimant's conduct, and is determined based on their behavior.