Volenti Non Fit Injuria

Volenti non fit injuria is a defence in the tort of negligence under which a defendant argues that the claimant freely accepted the risk that caused their injury. In Blake v Galloway, a case arising from horseplay between teenage musicians throwing bark chippings, the Court of Appeal record that the defendant's case was that the claimant had consented to the risk of being struck by the piece of bark even if it was thrown without reasonable care — the classic form of the volenti defence in an informal, participatory setting.

The Court of Appeal in Blake v Galloway approved the explanation of the doctrine given by Diplock LJ in Wooldridge v Sumner: the consent that is relevant is not consent to the risk of injury but consent to the lack of reasonable care that may produce that risk, and the defence requires on the part of the plaintiff, at the time at which he gives his consent, full knowledge of the nature and extent of the risk that he ran. In other words, merely accepting that an activity carries some risk of injury is not enough — the claimant must be shown to have accepted the risk of the defendant's own carelessness.

Because the defence depends on what the claimant actually knew and accepted, it can fail even where a claimant clearly took part in a risky activity voluntarily. At first instance in Blake v Galloway, the judge held that the injury was caused by the negligence and battery of the defendant, and rejected the defence of volenti non fit injuria, although the damages were reduced by 50% to reflect the claimant's own contributory negligence — showing that consenting to rough play does not automatically defeat a claim if the defendant's conduct went beyond what was accepted.