ABSTRACT

Volenti non fit injuria may also be pleaded in negligence actions, as well as in most other torts. In negligence, the courts speak of ‘voluntary assumption of risk’ rather than ‘consent’. If a defendant is successful in his plea of volenti,53 he will have a complete defence and the plaintiff will be unable to recover any damages. It is mainly for this reason that

volenti has declined in importance as a defence to negligence actions, and it rarely succeeds today: for, since the introduction of apportionment of loss in contributory negligence cases, the courts have tended to encourage reliance on contributory negligence and to discourage reliance on volenti, on the ground that, in most cases, the fairer solution is that the plaintiff should have his damages reduced, rather than being able to recover nothing at all.