ABSTRACT
To argue that contributory negligence is a form of consent is often to do injustice to the notion of consent itself. Failure to take proper care of one’s safety is not the same as consenting to damage. Nevertheless, where a claimant has sustained his injuries in the course of an anti-social activity the court might have recourse to contributory negligence or mitigation in order to deprive him of part or all of his damages.94 Alternatively, the court might refuse a damages action on the basis that the claimant actually consented to his injuries (volenti non fit injuria)95 or was involved in an activity so anti-social that the illegality prevents any action arising (ex turpi causa non oritur actio).96 It should be stressed, however, that the courts are not over-ready to resort to the volenti defence and statute has intervened in the case of a motor vehicle – but not aircraft97 – passenger who freely embarks on a journey with an obviously drunk driver. Such a passenger cannot be deprived of compensation on the ground of antecedent agreement or acceptance of risk.98 In road accident cases, the primary emphasis is, then, on the compensation of victims. All the same this policy of compensation can be overridden in cases of serious criminal behaviour,99 and in situations where there is no accident insurance the courts might use the defence of volenti to protect the patrimonies of innocent third parties.100
