- Created by: erw16
- Created on: 16-12-18 11:42
Volenti non fit injuria means that "to a willing person, no injury is done." This means that if a claimant has voluntarily undertaken the risk of harm then they have no claim against the party who inflicted it. Volenti is a complete offence and the defendant will not incur any liability.
The first element is that consent must be freely given by the claimant, this was set out in Bowater v Rowley Regis Corporation.
The second element is that the claimant must have knowledge and understanding of the risks involved if it is to operate as a defence. This test is subjective. The claimant must know that it exists but also be aware of the nature and extent of that risk.
The third element is that consent must be either express or implied. Express consent may be that the person gives consent verbally or in handwriting.
Implied consent may be inferred through circumstances or conduct. The mere fact that a claimant is aware of a risk, however, is not conclusive proof that they consented to it, this was set out in Smith v Baker.
The courts have also been asked…