1

I. INTRODUCTION

It is a given fact that in every situation, man, may at some point be

exposed to danger. Some of this can be totally avoided. Others cannot be
avoided at all. While in some, damage or injury could be minimized.

This danger or risk may be so unexpected that it cannot be avoided and

the resulting damage is immense. A similar situation would be where a
pedestrian crosses the street using the proper lane, at the time when the traffic
signal says that it is safe for him to cross. Then suddenly, he was hit by an SUV
whose driver decides to overtake, not minding the traffic sign that says stop.
On the part of the pedestrian, although he is exposed to danger by the mere
fact that he crossed the street, by using the pedestrian lane and crossing only
when it is safe to do so, he expects to have avoided such danger or eventual
injury. However, injury still happened due to the drivers lack of care.

Meanwhile, some of these dangers or risk are so blatant that an ordinary

man is expected to do something to avoid such danger or at least minimize the
possible damage that might arise out of the situation. An example would be a
man who attempts to cross a national highway, knowing for a fact that
motorists are running at a minimum speed of 60 kph. The situation evidently
shows danger and being a prudent man, he is expected to not cross the road at
all or look for any signage that he is allowed to cross the road.

In case injury happens, one of the recourse of the injured party is

provided under the New Civil Code where he is given the right to institute an
action to claim damages. However, this law does not give an absolute favor to
the injured party. It repeatedly discussed the obligation of the injured party
before, during or after such injury. That being a prudent man, he is expected to
exercise the ordinary diligence in all his dealings or activities. If such diligence
is exercised, the injured party may claim damages. However if it is shown that
the injured party knew for a fact that it is dangerous or harm might actually
result, but still assumes such risk, claim for damages may be denied or at least
minimized by the court. This is the doctrine of volenti non fit injuria.

Volenti non fit injuria (to a willing person, injury is not done) is a
common law doctrine which states that if someone willingly places himself in a
position where harm might result, and such person knows that some degree of
harm might result, he is precluded to bring a claim against the other party in
tort or delict. This is also known as a "voluntary assumption of risk." This
refers to self- inflicted injury or to the consent to injury by one who has
knowingly and voluntarily exposed himself to danger, even if he is not negligent
in doing so.1

1 Nikko Hotel vs. Roberto Reyes, a.k.a. Amay Bisaya, G.R. No. 154259, 28 February
2005
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In the Philippine setting, taking into consideration the rarity of injuries caused
by different incidents, the injured party is oftentimes advised to seek legal help
to claim damages as a form of compensation. The injured party, being a
layman, would actually hope to get compensation without knowing that some
facts or situations may bar him from recovering. The Doctrine of volenti non fit
injuria is one of those situations where, if raised as a defense by the defendant,
the plaintiff may be denied of the compensatory relief that he seeks.

The doctrine is strictly not a defense, but a rule of law regarding, a

plaintiff's conduct which forms a bar to a suit brought by him based on
another's alleged negligence. One who knows of a danger arising from the act
or omission of another, and understands the risk therefrom, and voluntarily
exposes himself to it, is precluded from recovering for an injury which results
from the exposure. In other words, towards a person fully cognizant and
appreciative of the danger and risk to which the defendant's conduct exposes
him, the defendant has no duty of taking care, and therefore is not negligent. 2

The similar principle to volenti non fit injuria in US law is known as

assumption of risk. It is a defense in the law of torts, which bars or reduces a
plaintiff's right to recovery against a negligent tortfeasor if the defendant can
demonstrate that the plaintiff voluntarily and knowingly assumed the risks at
issue inherent to the dangerous activity in which he was participating at the
time of his or her injury. In Canada, the "volenti" principles applies in much
the same way as under English law.

It is a doctrine whereby a person who, knowingly and appreciating the

danger, voluntarily assumes the risk, has no just cause to complain against
another who is primarily responsible for the existence of the danger. Otherwise
stated, one cannot consciously take the risk that may or may not result in
injury, and then when the injury occurs, recover damages therefor.3

Where the defense of assumption of risk is based on the maxim volenti

non fit injuria, it negates negligence or liability on the part of the defendant,
even though his conduct would otherwise have constituted actionable
negligence, and without regard to the fact that the plaintiff may have acted
with due care. The defense bars recovery without regard to whether the
plaintiffs conduct was reasonable, because, in theory, the plaintiffs
acceptance of the risk has wiped out the defendants duty, and as to plaintiff
the defendants negligence is not a legal wrong.4

2Warren, Charles (1895), "Volenti Non Fit Injuria" in Actions of Negligence, Harvard
Law Review, Vol. 8, No. 8

3 Quimson Forwarders vs Go, 58107- R, December 29, 1981

4 Sangco, Philippine Law on Torts and Damages, Vol. 1, pp 84.

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This defense is commonly asserted in cases of injuries occurring during risky

recreational activities, such as skiing, paragliding, and scuba diving, but
actually extends to all dangerous activities. Thus, for example, it was held that
a visitor to the Burning Man festival assumed the risk of getting burned.

The term assumption of risk has led to no little confusion because it is

used to refer to at least two different concepts, which largely overlap, have a
common cultural background, and often produce the same legal result. But
these concepts are nevertheless quite distinct rules involving slightly different
policies and different conditions for their application. (1) In its primary sense
the plaintiff's assumption of a risk is only the counterpart of the defendant's
lack of duty to protect the plaintiff from that risk. In such a case plaintiff may
not recover for his injury even though he was quite reasonable in encountering
the risk that caused it. (2) A plaintiff may also be said to assume a risk created
by defendant's breach of duty towards him, when he deliberately chooses to
encounter that risk. In such a case, except possibly in master and servant
cases, plaintiff will be barred from recovery only if he was unreasonable in
encountering the risk under the circumstances. This is a form of contributory
negligence. Hereafter we shall call this "assumption of risk in a secondary
sense."5

Contributory negligence has sometimes been thought to be no more than

an aspect of assumption of risk, so that plaintiff is barred from recovery under
the maxim "volenti non fit injuria." This explanation, too, would warrant the rule
in its present form, as a complete bar to plaintiff's action. The two notions,
however, do not cover the same ground and in many situations do not even
overlap, though they may:
(1) Assumption of risk involves the negation of defendant's duty;
contributory negligence is a defense to a breach of such duty.
(2) Assumption of risk may involve perfectly reasonable conduct on
plaintiff's part; contributory negligence never does.
(3) Assumption of risk typically involves the voluntary or deliberate
incurring of known peril; contributory negligence frequently involves
the inadvertent failure to notice danger. 6

Only confusion can come from failure to keep separate these two strands
of legal doctrine. Yet they have this in common: both are manifestations of the
philosophy of individualism which also underlay the concepts of caveat emptor
and freedom of contract between the employer and employee of the last century.

II. HISTORY

International Origin

5 James, Fleming (1952),Assumption of Risk, 61 Yale L.J. 141

6 James, Fleming Jr., Yale Law School Scholarship Repository: Contributory

Negligence
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Volenti non fit iniuria is a legal maxim formulated by a roman jurist

named Ulpian sometime around AD 200. It became an often quoted legal
maxim which reads in original: Nulla iniuria est, qu in volentem fiat 7 or No
injury is committed against one who consents.8

The principle underlying the defense of consent to criminal liability or

volenti non fit injuria, can be traced back to sixth century Roman Law.
Originally operating as a complete barrier to prosecution, the rule has been
modified in different legal systems over time to permit certain exceptions, often
to actions that involved serious bodily harm or were otherwise considered to be
harmful to society as a whole. This shift was commonly the result of the
recognition of a public dimension to previously private harm.9

In nineteenth century English common law rarely held employers

accountable to their servants for harm caused by other workers. When faced
with employer/employee tort claims, judges, and in particular the Barons of
the Exchequer, almost uniformly refused to augment employers established
vicarious liability to strangers to include claims by injured servants.

What can be drawn from the debate over the origins of American tort
doctrine to explain why nineteenth century English judges resisted employers
liability is the efficiency of legal doctrine. Law and economics scholars, most
notably Richard Posner, have argued that Anglo-American common law evolves
towards economically efficient rules. This historical interpretation of how tort
doctrine developed, also called the invisible hand hypothesis, posits that
market driven efficiency guides judges in their decision-making. Ironically, this
is a notion with which the Victorians would have been comfortable for it
resembles a commonly held belief that organic substances, of which Law was
one, evolve towards the best possible state. In the specific context of common
employment and volenti non fit injuria, Judge Posner has argued that these
defenses precipitated a regime in which wages were commensurate with risk.
Laborers could elect between vocations receiving greater pay to encounter more
hazard, and those remunerated at a lower level in return for safer conditions.
He concluded that nineteenth workers were by-and-large risk preferring and
had therefore decided for the former option. In consequence of the greater peril
that was undertaken, incentives were created for workers to mind themselves
and their peers lest they be injured and uncompensated. This modern,
retrospective, rationale dovetails well with the rhetoric offered by English
judges throughout the period, namely that it was the injured workers
themselves who were best placed to know of and avoid hazards, and that they

7 Book 47, title 10, section 1 5, quoting Ulpian, On the Edict, Bk. 56. Literally
translated as "No injury is committed against one who consents".

8 YOur Dictionary, Retrieved: April 20, 2017, http://quotes.yourdictionary.com

9 United Nation, (2014), The Role of Consent in the trafficking in Persons Protocol,
Retrieved from: https://www.unodc.org/documents/human-
trafficking/2014/UNODC_2014_Issue_Paper_Consent.pdf
 5

were paid wages commensurate with the running of these risks. Nevertheless,
three flaws undercut the persuasiveness of an efficiency rationale.

First, the legal opinions are devoid of an indication that workers knew of
specific dangers arising from their employment or that they responded to these
hazards by bargaining for higher wages. Instead, the rulings are predicated
upon empirically unfounded, however deeply held, principles of political
economy that were presumed as true.

Second and more trenchant shortcoming of a common law efficiency

theory is the absence of evidence supporting the determination that a no-
liability rule was (or is) more efficient than a regime holding employers strictly
liable for injuries to their servants. The basic economic principle of economy of
scale makes it less expensive for large industries than for smaller ones to invest
in safety and internalize accident costs. Moreover, the type of industry in
question affects how frequently accidents occur, the level of risk, and the costs
of prevention.

Third from an economic efficiency perspective there is insufficient

information to identify the rule that properly allocates the risk of loss, and
there is no reason a priori to assume that the same rule will work equally well
in widely dissimilar contexts. In the same vein, no convincing rationale has
been put forward to establish why a higher wage/lower liability rule is
ultimately more economically efficient than a lower wage/higher liability
regime. 10

Philippine Origin

As early as 1916, the Philippine Courts has already recognized the

availability of the defense of Volenti non fit injuria in our jurisdiction.

As discussed in the case of Cerezo vs. Atlantic Gulf (GR No. L-10107,
February 4, 1916), another defense to which the master was entitled under
the common law was that known as contractual assumption of risks.
Practically the same thing is referred to in very many cases as the defense of
volenti non fit injuria, roughly translated as that to which a person assents is
not deemed in law an injury.

In those jurisdictions holding that the continuance in the service of an

employee after he has knowledge of the violation of a statutory duty by the
master is not a defense, the holding is usually justified on the ground of an
implied contract of the servant to assume the risks of the business; and that,
consequently, it would be against public policy to permit the master to contract
against the effects of violation of the statute. It is in those jurisdictions that
recognize the same state of facts as a defense available to the master where the
maxim volenti non fit injuria is relied upon, such courts holding that no
contract, express or implied, is involved, and that consequently, the public
10 Strein, Ashley Michael, (2009), Victorian Tort Liability for Workplace Injuries
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policy in question is not involved. Under either name, the defense in question
leaves the workman without remedy when his injury results from a risk known
or imputable to him before entering the employment or because of his
continuance at work after such knowledge came to him, whether such a risk
was due to a defect in the ways, works or machinery, or to negligence of the
master or other persons in the common employment.

The court held in the case of Sy vs. Central Bank (GR No. L-41480,
April 30, 1976) that according to the doctrine of promissory estoppel, "an
estoppel may arise from the making of a promise, even though without
consideration, if it was intended that the promise should be relied upon and in
fact it was relied upon, and if a refusal to enforce it would be virtually to
sanction the perpetration of fraud or would result in other injustice." Like the
related principles of volenti non fit injuria (consent to injury), waiver, and
acquiescence, it finds its origin generally in the equitable notion that one may
not change his position and profit from his own wrongdoing when he has
caused another to suffer a detriment by relying on his former promises or
representations. But, a promise cannot be the basis of an estoppel if any other
essential element is lacking. Justifiable reliance or irreparable detriment to the
promises are requisite factors.

For it has been held in Ilocos Norte Electric Company vs. CA (GR No. L-
53401, November 6, 1989) that a person is excused from the force of the rule,
that when he voluntarily assents to a known danger he must abide by the
consequences, if an emergency is found to exist or if the life or property of
another is in peril, or when he seeks to rescue his endangered property. The
court has ruled that, the maxim "volenti non fit injuria" relied upon by
petitioner finds no application in the case at bar. It is imperative to note the
surrounding circumstances which impelled the deceased to leave the comforts
of a roof and brave the subsiding typhoon. As testified by Linda Alonzo Estavillo
and Aida Bulong, the deceased, accompanied by the former two, were on their
way to the latter's grocery store "to see to it that the goods were not flooded." As
such, shall we punish her for exercising her right to protect her property from
the floods by imputing upon her the unfavorable presumption that she
assumed the risk of personal injury? Definitely not.

The court further ruled in the case of Garciano vs. CA (G.R. No. 96126,
August 10, 1992) that, petitioner's discontinuance from teaching was her own
choice. In this case, a complaint for damages was filed by the petitioner
alleging that she received the letter of her termination from the Immaculate
Concepcion Institute in the Island of Camotes right after she came back from
her indefinite leave from Austria. Upon inqury however to the school
authorities, she was told to report to her regular duties since the letter of
termination was made without authority from the Board of Directors. That even
if the school principal and Fr. Wiertz disagreed with the Board's decision to
retain her, and even if some teachers allegedly threatened to resign en masse,
did not make them liable to her for damages. They were simply exercising their
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right of free speech or their right to dissent from the Board's decision. Their
acts were not contrary to law, morals, good customs or public policy. They did
not "illegally dismiss" her for the Board's decision to retain her prevailed. She
was ordered to report for work on July 5, 1982, but she did not comply with
that order. Consequently, whatever loss she may have incurred in the form of
lost earnings was self-inflicted volenti non fit injuria.

In the case of Nikko Hotel vs. Amay Bisaya (G.R. No. 154259. February 28,
2005) the Court ruled on the alleged gate-crashing of Amay bisaya to a party,
in this wise: The doctrine of volenti non fit injuria (to which a person assents
is not esteemed in law as injury) refers to self-inflicted injury or to the consent
to injury which precludes the recovery of damages by one who has knowingly
and voluntarily exposed himself to danger, even if he is not negligent in doing
so.

The said doctrine in the case of Pantaleon vs. American Express

(August 25, 2010) was applied. Pantaleon himself testified that the most basic
rule when travelling in a tour group is that you must never be a cause of any
delay because the schedule is very strict. When he made up his mind to push
through with his purchase of diamond pieces using his credit card and
incurred delay in the approval, he must have known that the group would
become annoyed and irritated with him. This was the natural, foreseeable
consequence of his decision to make them all wait. Significantly, he tried to
cancel the sale at 9:40 a.m. because he did not want to cause any
inconvenience to the tour group but when he was asked by the store manager,
he agreed to wait despite the knowledge that he had already caused a 10-
minute delay and that the city tour could not start without him. Thus, his
claim for damages against credit card company since the doctrine of volenti non
fit injuria (to which a person assents is not esteemed in law as injury) refers to
self-inflicted injury or to the consent to injury which precludes the recovery of
damages by one who has knowingly and voluntarily exposed himself to danger,
even if he is not negligent in doing so.

III Assumption of Risk

Express Waiver of the Right to Recover

The express consent perspective contemplates the most basic sense of

the doctrine. Under this perspective, there is assumption of risk if the plaintiff,
in advance, has expressly waived his right to recover damages for the negligent
act of the defendant. He has given his express consent to relieve the defendant
of an obligation of conduct toward him, and to take his chances of injury from
a known risk arising from what the defendant is to do or leave undone. For
instance, if the plaintiff was warned that it is still dangerous to take the vehicle
from the repair shop because the repairs are still untested, there would be an
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express assumption of risk if he nevertheless took the vehicle from the shop
with the express waiver of liability in favor of the proprietor.11

However, in Pleasantville Development Corporation vs. Court of Appeals (253

SCRA 10, 19 [1996]), the Supreme Court ruled that a person cannot contract
away his right to recover damages resulting from negligence. Even if such
waiver was made, the same is contrary to public policy and cannot be allowed.
Rights can be waived unless the waiver is contrary to law, public order, public
policy, morals or good customs, or prejudicial to a third person with a right
recognized by law.

At any rate, it should be noted, that the waiver contemplated here is the
waiver of the right to recover before the negligent act was committed. It cannot
be stipulated in the contract that one of the parties therein is barred from
claiming damages based on negligence. If the waiver was made after the cause
of action accrued, the waiver is valid and may be construed as condonation of
the obligation.12

Implied Assumption

A person who, knowing that he is exposed to a dangerous condition, voluntarily

assumes the risk of such dangerous condition may not recover from the
defendant who maintained such dangerous conditions. Thus, a person who
maintained his house near a railroad track assumes the usual dangers
attendant to the operation of a locomotive.13

In medical perspective, volenti non fit injuria must be distinguished from the
defense of voluntary assumption of risk. The latter, like that of volenti non fit
injuria, excludes the element of unlawfulness. Some writers consider the
defense of voluntary assumption of risk to be an extension and wider form of
the doctrine of volenti non fit injuria. Consent to potential risks and side-
effects after an operation is an example of the wider form of consent. Others
are of the opinion that voluntary assumption of risk does not entail consent to
specific harm, but rather consent to the risk of harm. In this sense, volenti non
fit injuria entails consent to the invasion of a specific interest, whereas
assumption of risk involves the exposure of risks emanating from a particular
source of danger and the assumption of the risk of harm connected with that
particular source of danger or activity.

Philippine Setting

11 Aquino, TORTS AND DAMAGES, Second Edition, 2005, pp. 238

12 Aquino, TORTS AND DAMAGES, Second Edition, 2005, pp. 238

13 Rodriguez, et.al. vs Manila Railrod Company, G.R. No. L-15688, November 19,
1921
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In Francisco, Torts and Damages, 1957 ed., pp. 197-198, we read the
following on the matter of assumption of risk: The principle that one who
voluntarily assumed the risk of injury from a known danger is debarred from a
recovery is recognized in negligence cases. As stated, a plaintiff who by his
conduct, has brought himself within the operation of the maxim, volenti non
fit injuria, cannot recover on the basis of the defendants negligence. In the
words of the maxim as translated, that to which a person assents is not
esteemed in law was injury. * * * It is said that one who knows, appreciates,
and deliberately exposes himself to a danger assumes the risk thereof. One
cannot deliberately incur an obvious risk of personal injury, especially when
preventive measures are at hand, and then hold the author of the danger for
the ensuing injury.

International Setting

The principle volenti non fit injuria, which states that to a willing person,
no injury is done or that a person who consents to their being wronged has no
reason to complain, can be applied to international law. While analyzing this
principle, international law specialists have reached the conclusion that it can
be applied to the international sphere. Thus, if a state consents to another
state adopting a certain conduct which opposes the latters obligations to the
former, the given consent leads to an agreement which determines the
elimination of the effects of any obligations existing between the two parties or
at least the suspension of said effects for a certain amount of time. The
preliminary requirement is the existence of the undertaken obligation
according to commitments made at an international level. Otherwise, the
conduct under discussion is no longer wrongful and the states consent is
valueless. Under the circumstances, if a state clearly demands that another
state should disregard the existing obligation and perform certain acts, it is
clear that a perfectly valid consent has been expressed. Confusion may ensue
in relation to the amount of time for which the consent is given, so clear
criteria must be established.14

Harm suffered by consent is, within limits to be mentioned, not a cause of civil
action. The same is true where it is met with under conditions manifesting
acceptance on the part of the person suffering it, of the risk of that kind of
harm. The maxim by which the rule is commonly brought to mind is Volenti
non fit injuria. Leave and license is the current English phrase for the
defence raised in this class of cases. On the one hand, however, volenti non fit
injuria is not universally true. On the other hand, neither the Latin nor the
English formula provides in terms for the state of things in which there is not
specific will or assent to suffer something which, if inflicted against the partys
will would be a wrong, but only conduct showing that for one reason or
another, he is content to abide the chance of it.15

14 Maxim, Felicia. Circumstances which exclude the wrongful nature of the

international act. Page 149
 10

According to the most informed authorities, consent and the accompanying

assumption of risk are grounds for total elimination of liability, be it a question
of personal injury or damage to property, a fundamental principle of common
law being the application of the maxim "volenti non fit injuria in private
matters." In this area, American courts have adopted an attitude less
paternalistic than that of the French by refusing to protect the individual from
his own folly in consenting to harm at the hands of others. Consent, even
implicit, eliminates even the existence of any tort. Nonetheless, this harsh
stance has been subject to criticism, and its walls have been partially eroded
by legislative and judicial measures.16

French and Belgian doctrine and jurisprudence have formulated solutions in

accordance with a totally different philosophy, in the absence of any express
textual guidance comparable to Article 44 of the Swiss Code of Obligations.
Consent of the victim to an injurious act gives rise to total exoneration of the
accused only to the extent that the latter is utterly without fault, or only if his
fault is entirely due to that of the victim.

On the other hand, the very notion of "acceptance of the risk" is

extremely ambiguous, be it in potentially dangerous activities such as sports,
hunting, transportation, dangerous military assignment or medical treatment.
Above all, the simple awareness of risk, absent express agreement of non-
liability, does not entail the acceptance of injury at the hands of third parties.
Any acceptance of potential injury is possible only as to abnormal risks.
Furthermore, French and Belgian doctrine requires that the victim knowingly
and voluntarily accepted exaggerated risks without any legitimate and
reasonable motive, or that the victim should have known of such risks, thereby
committing an act of recklessness or negligence, which may be considered a
cause of the harm. Such negligence can never totally excuse an act of the
defendant which has brought about the harm.17

Because the victim must bear, in addition, the entire brunt of the injury
caused by fortuitous events - and the more dangerous the activity, the higher
the risk - certain authors conclude that the notion of acceptance of the risk is
not only imprecise and dangerous, but also useless with respect to aquilian
responsibility. Agreements disclaiming responsibility in advance signify
anticipatory renunciation of the right to demand recovery of damages rather
than an acceptance of risk or injury. The question of their validity, which has
stirred up considerable controversy, has provoked different solutions in France
and in Belgium. In France, where the question remains unsettled,
jurisprudence and doctrine accept the validity of such agreements generally in

15 Pollock, Sir Frederick(1886). The Law of Torts: A Treatise on the Principles of

Obligations arising from Civil Wrongs in the Common Law (4th ed.)

16 M.T. Meulders-Klein. The Right Over Ones Own Body: Its Scope and Limits in
Comparative Law. Boston College International and Comparative Law Review. pages
48 to 49,)

17 Ibid page 49)

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contractual matters, with exceptions as provided by law, but excluding fraud or

negligent misrepresentation, which has been traditionally assimilated to fraud,
whether committed by the principal or by his agent. In addition, the validity of
agreements concerning bodily injury, whatever the gravity of the fault, has
been largely contested. Finally, disclaimers of liability are null as against public
policy in matters of delictual responsibility, since Article 1382 of the Civil Code
is considered a matter of public order, namely, laws in the public interest which
cannot be bargained for.18

In Belgium, liability for civil offenses is not a matter of public order and fraud
does not encompass negligent misrepresentation. Starting from completely
different premises, Belgian jurisprudence accepts the validity of non-liability
clauses without differentiating between contractual or delictual liability, nor
between damage to personality or injury to persons, except as to personal fraud
(dol personnel) and other exceptions under law. In addition, no clause may
operate to render null the subject of the contract. The Belgian Cour de
Cassation (court of highest instance) upholds clauses relative to fraud or
negligent misrepresentation on the part of agents of the principal. The result of
this approach is to allow the victim to waive in advance any claim for damages
the scope of which the victim cannot know, and without regard to the gravity of
the offense, even when such offense constitutes a penal infraction, a civil
offense being a penal one at the same time if bodily injury is involved. Although
this solution has found general doctrinal acceptance, it has not been without
its critics. In any event, such agreements are not valid in medical matters,
whatever the nature and the gravity of the offense, and, a fortiori, when the act
causing the injury is not medically justified.19

In medical perspective, the application of the maxim is not without restrictions

and in certain circumstances individual freedom is curtailed. For consent to
operate as a defense that excludes the element of unlawfulness and
wrongfulness of the crime or delict, certain requirements have to be met. In
this regard, the consent of the party who consented to the infliction of harm is
of paramount importance. The consent must manifest itself externally in order
to qualify as a legal act. Generally, the consent must be given by the plaintiff or
complainant himself or herself. The conduct must fall within the confines of the
consent given and must therefore not exceed the boundaries of the consent
given. The consenting party must have consented to the entire transaction,
inclusive of all its consequences. The consent must be given clearly and
unequivocally. The consent must be given prior to the conduct in question. The
consent must be given by a person capable in law of consenting. In this sense,
capacity to contract does not equal capacity to give valid consent. Consent can
only be valid if the person consenting to the harm is capable of forming an
intention and of understanding of what he or she is consenting to. The consent
must be given freely and voluntarily, that is, not induced by fear, coercion or
fraud. The consenting party must have full knowledge and must have been

18 (Footnote: Ibid page 50)

19 (Footnote: Ibid page 51)

 12

aware of the nature and extent of the harm or risk. The consenting party must
have appreciated and understood the nature and extent of the harm or risk.
Many of these requirements relate to the authenticity of the consent, in other
words, the capacity of the consenting party to make truly autonomous decision
to consent to harm. Some find it difficult to imagine that consent to serious
bodily harm or serious infringement to ones dignity could ever be truly
authentic. 20

IV. VOLENTI NON FIT INJURIA IN THE PHILIPPINES

Requisites/ Elements

The doctrine of assumption of risk is consistent with the maxim volenti

non fit injuria. It presupposes three (3) elements or requirements:
(1) that the plaintiff has actual knowledge of the danger;
(2) that he understood and appreciated the risk from the danger and,
(3) that he voluntarily exposed himself to such risk.

Therefore, except where he expressly so agrees, plaintiff does not assume

a risk of harm arising from defendants conduct unless he then knows of the
existence of the risk and appreciates its unreasonable character, or the danger
involved, including the magnitude thereof and voluntarily accepts the risk. 21

In case of an agreement, it must be voluntary and freely entered for the defense
of volenti non fit injuria to succeed. If the claimant is not in a position to
exercise free choice, the defense will not succeed. This element is most
commonly seen in relation to employment relationships, rescuers and suicide.22

The term risk as used, applies to known dangers and not to things from
which danger may possibly flow. The risk referred to is the particular risk, or
one of the risks, which the plaintiff accepted within the context of the situation
in which he placed himself and the question is whether the specific conduct or
condition which caused the injury was such a risk. Thus, the doctrine may be
applicable to one particular risk that was assumed by the plaintiff, but not to
other risk which he might be subjected. 23

In relation to the third requisite, however, it has been held in Ilocos

Norte Electric Company vs. Court of Appeals (G.R. No. 53401. November 6,
1989, 179 SCRA 5) that the plaintiff is excused from the force of the rule if:

20 (Footnote: Ibid - Wish-Fulfilling Medicine.)

21 Ibid.

22 e-lawresources.co.uk. Volenti Non Fit Injuria. Retrieved from: http://e-

lawresources.co.uk/Volenti-non-fit-injuria.php

23 Ibid.
 13

(1) An emergency is found to exist; or

(2) If the life or property of another is in peril; or
(3) When he seeks to rescue his endangered property.

In the Ilocos Norte Electric Company case, the deceased was electrocuted
when she ventured out of her house and waded through floodwaters. The
defendant company was found to have failed to prevent the fallen lines from
causing damage. As a supplier of electricity it was found to have failed to be in
constant vigil to prevent or avoid any probable incident that might imperil life
or limb. No assumption of risk was ascribed to the deceased because an
emergency was at hand as deceaseds property, a source of her livelihood, was
faced with an impending loss. Furthermore, the deceased, at the time the fatal
incident occurred, was at a place where she had the right to be without regard
to defendants consent as she was on her way to protect her merchandise.

Volenti non fit injuria in Dangerous Occupations

A person who, knowing that he is exposed to a dangerous condition, voluntarily

assumes the risk of such dangerous condition may not recover from the
defendant who maintained such dangerous conditions. Thus, a person who
maintained his house near a railroad track assumes the usual dangers
attendant to the operation of a locomotive.24

The law uses the term possessor and user of the animal. Afialda was the
caretaker of the animal and he was tasked and paid to tend for the carabaos.
He, at the time of the goring, is the possessor and the user of the carabao and
therefore he is the one who had custody and control of the animal and was in a
position to prevent the animal from causing damage. It is the caretakers
business to try to prevent the animal from causing injury or damage to anyone,
including himself. And being injured by the animal under those circumstances
was one of the risks of the occupation which he had voluntarily assumed and
for which he must take the consequences. It would have been different had
Afialda been a stranger.25

Volenti non fit injuria in Contractual Relations

Assumption of risk is an employers defense originating in the common law,

against recovery of damages for injury sustained by an employee arising from
some damages as are normally and necessarily incident to the employment or
occupation.26

24 Rodriguez, et.al. vs Manila Railrod Company, G.R. No. L-15688, November 19,
1921

25 Afialda vs. Hisole GR No. L-2075, November 29, 1949

26 Tamayo vs Gsell, G.R. No.10765. December 22, 1916, 35 Phil. 969

 14

The word assumption imports some contract or some kindred act of an

unconstrained will, as that, where the defense of assumption of risk does not
rest exclusively on contract, then it must rest on an act done spontaneously
rendering the person doing it a volunteer.27

Assumption of risk is a defense of an employer in a tort case filed by his

employee. The nature and extent of this defense finds application when there
exists an employer- employee relationship between the parties. This defense
was explained by the Supreme Court in Cerezo vs. Atlantic Gulf & Pacific
Company in this wise:

In England, it was said in the case of Thomas vs. Quartermaine

(Footnote: 18 Q.d. 685) that the Act (Employers Liability Act) had
not varied the effect of the maxim volenti non-fit injuria so far as
it involves the ordinary risks inherent in his particular
employment. To the same effect is OMaley vs. South Boston Gas
Light Co. (158 Mas. 135); Birmingham Ry. & Electric Co. vs. Allen
(99 Ala. 359); Whitcomb vs. Standard Oil Co., (153 Ind. 513)
(Search these cases para ma cite separately if necessary). But
while the Act made no change in the doctrine of assumption of
risk in favor of the workmen since the enactment of these Acts.
The doctrine is based on the implied consent of the servant to
accept or continue in the employment after becoming aware of the
risk which resulted in his injury. It was formerly held that mere
acceptance of the employment or continuance in it with knowledge
of the risk was conclusive of the workmens consent to accept the
risk, and the usual practice was, when evidence of this nature
was satisfactory, to direct a verdict or nonsuit in favor of the
defendant. The trend of modern public sentiment in favor of
compensation for industrial accidents, however, has had the
influence of making the assumption of risk almost entirely of fact,
instead of, as under the former practice, practically inferring his
consent from the fact of his knowledge of the risk, however
unwilling he may be, in fact, to do so. This new theory of the
assumption of risk, however, does not abrogate the doctrine at all.
It merely requires more convincing evidence of the employees
consent to assume the risk. It is still true that the employee
assumes the ordinary risks inherent in the industry in which he
is employed. But as to those abnormal risks arising from unusual
conditions, the new view of the doctrine requires the question of
fact and to require cogent and convincing evidence of such
consent.

An employee cannot be said to have assumed a risk which is not incident to his
employment. The risk is not incident to the employment of the plaintiff if the
occurrence was due to the failure of the employer to repair a portion of the
workplace. Thus, if a worker of the railroad company engaged in transporting

27 People vs. Cabahug, 14892-R, January 27, 1956

 15

heavy rails, was injured because the track has sagged, the railroad company
cannot claim that the employee assumed the risk because the injury resulted
by reason of the companys failure to repair the tract or to duly inspect it. The
employee may not be deemed to have stipulated that the employer might
neglect his legal duty.28

In the contract of common carriage there is assumption of risk involved

in the transportation of passengers and goods. As a rule, when a passenger
boards a common carrier, he takes the risks incidental to the mode of travel he
has taken. After all, a carrier is not an insurer of the safety of its passengers
and is not bound absolutely and at all events to carry them safely and without
injury.29

The said doctrine in the case of Pantaleon vs. American Express (2010)
was applied. Pantaleon himself testified that the most basic rule when
travelling in a tour group is that you must never be a cause of any delay
because the schedule is very strict. When he made up his mind to push
through with his purchase of diamond pieces using his credit card and
incurred delay in the approval, he must have known that the group would
become annoyed and irritated with him. This was the natural, foreseeable
consequence of his decision to make them all wait. Significantly, he tried to
cancel the sale at 9:40 a.m. because he did not want to cause any
inconvenience to the tour group but when he was asked by the store manager,
he agreed to wait despite the knowledge that he had already caused a 10-
minute delay and that the city tour could not start without him. Thus, his
claim for damages against credit card company since the doctrine of volenti non
fit injuria (to which a person assents is not esteemed in law as injury) refers to
self-inflicted injury or to the consent to injury which precludes the recovery of
damages by one who has knowingly and voluntarily exposed himself to danger,
even if he is not negligent in doing so.

Volenti non fit injuria in Injury-prone Activities

Persons who voluntarily participate in dangerous activities assume the risks

which are usually present in such activities. The rule may apply to professional
athletes who are deemed to assume the risks of injury incident to their trade.
For example, a basketball player is deemed to have assumed the risk of

28 M.H., Rakes vs. The Atlantic, Gulf and Pacific Company GR No. 1719, January 23,
1907)

29 Yobido vs CA, G.R. No. 113003. October 17, 1997

 16

suffering from injuries incident to such contact sport. Sprained ankle or

dislocations of the bone are common occurrences in basketball.30

When a person, knowing and appreciating the danger and the risk, elects
voluntarily to encounter them, he can no more maintain an action founded
upon the statute than he can in cases to which the statute has no application.
An employee irked by the laughter of his companions when he stated that he
used to explode bigger-sized firecrackers, and that if he held it tightly, one
would not get hurt by the explosion thereof, and despite the warning of the
firecracker owner that it was a real one and would explode, stubbornly ignite
the firecracker after challenging the companions to a bet of P100.00 is governed
by the doctrine of volenti non fit injuria or that to which a person assents is
not esteemed, in law, an injury. The facts and circumstances being such as to
warrant the conclusion that the plaintiff, freely and voluntarily, with full
knowledge of the nature and extent of the risk he ran, impliedly agreed to incur
it.31

The court has ruled that, the maxim "volenti non fit injuria" relied upon
by petitioner finds no application in the case at bar. It is imperative to note the
surrounding circumstances which impelled the deceased to leave the comforts
of a roof and brave the subsiding typhoon. As testified by Linda Alonzo Estavillo
and Aida Bulong, the deceased, accompanied by the former two, were on their
way to the latter's grocery store "to see to it that the goods were not flooded." As
such, shall we punish her for exercising her right to protect her property from
the floods by imputing upon her the unfavorable presumption that she
assumed the risk of personal injury? Definitely not. For it has been held that a
person is excused from the force of the rule, that when he voluntarily assents
to a known danger he must abide by the consequences, if an emergency is
found to exist or if the life or property of another is in peril, or when he seeks to
rescue his endangered property. 32

Volenti non fit injuria in Injury-prone Activities

As stated in Philippine Jurisprudence, persons who voluntarily

participate in dangerous activities assume the risks which are usually present
in such activities. The rule may apply to professional athletes who are deemed
to assume the risks of injury incident to their trade. For example, a basketball
player is deemed to have assumed the risk of suffering from injuries incident to
such contact sport. Sprained ankle or dislocations of the bone are common
occurrences in basketball.33

30 Aquino, TORTS AND DAMAGES, Second Edition, 2005, pp. 245

31 Transporto vs. Mijares, 1 CAR 2s 860 (1961)]

32 Ilocos Norte Electric Company vs. CA, GR No. L-53401, November 6, 1989)

33 Aquino, TORTS AND DAMAGES, Second Edition, 2005, pp. 245

 17

When a person, knowing and appreciating the danger and the risk, elects
voluntarily to encounter them, he can no more maintain an action founded
upon the statute than he can in cases to which the statute has no application.
An employee irked by the laughter of his companions when he stated that he
used to explode bigger-sized firecrackers, and that if he held it tightly, one
would not get hurt by the explosion thereof, and despite the warning of the
firecracker owner that it was a real one and would explode, stubbornly ignite
the firecracker after challenging the companions to a bet of P100.00 is governed
by the doctrine of volenti non fit injuria or that to which a person assents is
not esteemed, in law, an injury. The facts and circumstances being such as to
warrant the conclusion that the plaintiff, freely and voluntarily, with full
knowledge of the nature and extent of the risk he ran, impliedly agreed to incur
it.34

The cases relating to the rights of persons occupying exposed places on

the street railway cars, while generally placed on the ground of contributory
negligence, are more properly to be referred to the doctrine of the of voluntary
assumption of risk. Contributory negligence involves the idea of misconduct, a
failure to measure up to the standard of care of the average man. Voluntary
assumption of risk may exist, although the risk would be incurred by the man
of average carefulness. Thus, the average man would stand on the rear
platform of a car, although in so doing he may well be held to take the risks of
certain dangers that are necessarily incident to that position, such as injuries
caused by the normal swaying of the car. Adopting therefore the principle of
volenti non fit injuria in this class of cases, we should expect in general to
find that a plaintiff is not barred because of his exposed position on a car
unless 1. He has voluntarily taken such position, and 2. The injury which he
has suffered is one that is peculiarly incidental to that position. 35

The necessity of transportation has in general been held sufficient to

render the taking of the exposed position not voluntary. Thus, it is universally
held that a passenger may occupy the platform or runningboard (of an open
car) when the inside of the car is crowded, and in the latter case, the company
owes him a duty of protection from the negligence of their servants, for
example, from a colision with another car, or from collision with a wagon
standing in the street which was seen by the motorman, but not from collisions
with wagons where there was no negligence on the part of the motorman.

V. VOLENTI NON FIT INJURIA IN A FOREIGN SETTING

34 Transporto vs. Mijares, 1 CAR 2s 860 (1961)]

35 "Volenti Non Fit Injuria" as Applied to Persons Riding in Exposed Places on Street
Railway Cars, (Jun., 1908), University of Pennsylvania Law Review and American
Law Register, Vol. 56, No. 6, Volume 47 New Series pp. 402-404
 18

Volenti non fit injuria in Dangerous Occupations

In the old European setting specially that which concerns workmen, the
common law defenses of volenti non fit injuria and contributory negligence
effectively barred the claims of injured workers seeking redress outside the
boundaries already delineated by the fellow servant rule. This was especially
true of volenti, which judges advanced in a conscious effort to nullify recovery
by injured workmen against their employers. 36

At the heart of the maxim volenti non fit injuria (loosely translated, a willing
person cannot be wrongfully harmed) was the notion that in exchange for their
wages, workers agreed to incur the hazards of their employment. Application of
volenti was a legal matter decided by judges based on how foreseeable the
dangers of employment were at the time of hiring, and the degree to which
workers were heedless of those dangers. The modern day question of whether
they acted out of desperation rather than volition, was not addressed. Volenti
proved to be an effective bar to intrepid assertions of employers negligence. As
was the case with the parallel context of common employment, it was also once
more the Court of Exchequer and the Exchequer Chamber -- rather than those
defending suits that inaugurated the doctrine to the field of master/servant
relations. 37

Skipp, the initial case in which a worker declared an employer negligent for
engaging a faulty system, was also the first instance in which volenti served as
a defense against the claims of a servant. While moving the Court of Exchequer
for a new trial, plaintiffs counsel was interrupted by Baron Platts comment
that the suit came within the maxim volenti non fit injuria. Baron Parke then
interjected that if Skipp felt that he was in danger, by reason of the want of a
sufficient number of fellow servants, he should not have accepted the service,
and that by remaining he had willingly incurred any subsequent danger.
Similar reasoning manifested in the opinion, with Baron Martin concurring
that he had acted upon that principle [of volenti] at the trial, wherein he
considered Skipp a voluntary agent. These proclamations must have come as
an unpleasant surprise, since defense counsel had not raised the prospect of
volenti either at trial or on appeal. 38

In Dynen, another faulty operations case, the Court of Exchequer once

more raised and used the defense of assumption of the risk on its own
initiative. During oral argument, Chief Baron Pollock remarked that the
deceased should not have used inadequate kit, rather he should have left.
This perspective was echoed in the Chief Barons holding, which concluded that
Dynen had assumed responsibility for causing his own death. Baron Bramwell
explicated the brief opinion by reasoning that this was a situation where the

36 Strein, Ashley Michael, (2009), Victorian Tort Liability for Workplace Injuries

37 Strein, Ashley Michael, (2009), Victorian Tort Liability for Workplace Injuries

38Ibid
 19

workmen has known all the facts and is as well acquainted as the master with
the nature of the machinery and voluntarily use[d] it. Once more, although not
raised by defense counsel, volenti was used by the Barons to prevent recovery
against an employer.

The claimant here was a photographer at a horse show. He was situated within
the ring of the horse show and not behind the barriers where the spectators
were housed. He was on a bench with a Miss Smallwood who was a director of
the company which employed the claimant. He had been taking little interest in
the proceedings and was not experienced in regard to horses. During the
competition, one of the horses, owned by the defendant, came galloping at great
speed towards the bench where they were sitting. The claimant took fright at
the approach of the galloping horse and attempted unsuccessfully to pull Miss
Smallwood off the bench. He stepped or fell back into the course of the horse
which passed three or few feet behind the bench, and was knocked down. The
claimant brought an action in negligence arguing the rider had lost control of
the horse and was going too fast. The defendant raised the defense of volenti
non fit injuria. The Court ruled that claimants action failed since he takes the
risk because such an act involves no breach of duty. It was held that consent to
the risk of injury was insufficient. There must be consent to the breach of duty
in full knowledge of the nature and extent of the risk. 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.39

Except where there is an obvious and necessary danger in the work itself, it
must be a question of fact in every case whether there was an agreement or at
any rate consent to take the risk. Where a person undertakes to do work
which is intrinsically dangerous, notwithstanding that reasonable care has
been taken to render it as little dangerous as possible, he no doubt voluntarily
subjects himself to the risks inevitably accompanying it, and cannot, if he
suffers, be permitted to complain that a wrong has been done him, even
though the cause from which he suffers might give to others a right of action:
as in the case of works unavoidably producing noxious fumes. 40

But where a risk to the employed, which may or may not result in injury, has
been created or enhanced by the negligence of the employer, the mere
continuance in service, with knowledge of the risk, does not preclude the
employed, if he suffer from such negligence, from recovering in respect of his
employers breach of duty. And it seems that (apart from contracts to take a
class of risks) there must be consent to the particular act or operation which is
hazardous, not a mere general assent inferred from knowledge that risk of a
certain kind is possible. 41

39 Wooldridge vs. Summer (1963) 2 QB 43]

40 Pollock, Sir Frederick(1886). The Law of Torts: A Treatise on the Principles of

Obligations arising from Civil Wrongs in the Common Law (4th ed.)

41 Ibid
 20

Volenti non fit injuria in Contractual Relations

A claimant sued his employers for injuries sustained while in the course of
working in their employment. He was employed to hold a drill in position whilst
two other workers took it in turns to hit the drill with a hammer. Next to where
he was working another set of workers were engaged in taking out stones and
putting them into a steam crane which swung over the place where the
claimant was working. The claimant was injured when a stone fell out of the
crane and struck him on the head. The defendant raised the defense of volenti
non fit injuria in that the claimant knew it was a dangerous practice and had
complained that it was dangerous but nevertheless continued. The court ruled
that the claimant may have been aware of the danger of the job, but had not
consented to the lack of care. He was therefore entitled to recover damages.42

A workman is not bound, to throw up his employment rather than go on

working with appliances which he knows or suspects to be dangerous; and
continuing to use such appliances if the employer cannot or will not give him
better is not conclusive to show that he voluntarily takes the attendant risk. As
between an employer and his own workmen, it is hardly possible to separate
the question of knowledge and acceptance of a particular risk from the
question whether it was a term in the contract of service (though it is seldom, if
ever, an express term) that the workman should accept that risk. 43

The legal relationship between a physician and a patient is regulated by the

contract between the parties and the law of delict. In case of both contract and
delict, the physicians right to operate upon or treat a patient is based entirely
on the patients consent. When a person willingly consents to an act, in the
form of either specific harmful act or an activity involving risk of harm, he or
she cannot complain that a delict has been committed against him or her. The
mere harming must also be wrongful. Under appropriate circumstances
consent to harm nullifies the wrongfulness of the harm. This principle is
recognized by Roman Law, common law and Roman-Dutch law and is
commonly expressed by the volenti non fit injuria maxim. The rationale
underlying the recognition of the maxim is based on individualism or
autonomy, in terms of which individuals must determine their own destinies
and are therefore allowed to limit their own rights as they please. The courts
are therefore not inclined to protect a consenting party against his or her own
foolishness in permitting others to do him or her harm. 44

The defense indicated by the maxim comprises a wide field and is recognized in
South African medical law in the form of the informed consent doctrine. In
terms of this defense, a patients informed consent serves as a justification for
the conduct that would otherwise constitute a wrongful act. The recognition of

42 Smith vs. Baker & Sons (1891) AC 325]

43 Ibid

44 (Footnote: Ibid -- Wish-Fulfilling Medicine: .)

 21

the defense in the medical law stems from the contractual relationship between
a physician and a patient, in terms of which the patients consent plays a
crucial role.

The respondents case is that the appellant was in breach of contract and
duty of care in preparing the loan documents. The loan documents were found
to be invalid and unenforceable and in consequence they suffered loss and
damage. The learned trial judge went on to say the appellant was in breach
without appreciating the scope of duty and obligation of the financiers
solicitors, taking into consideration that the respondent was instrumental in
entertaining a bogus sale and purchase agreement, without a proper vetting
process before the loan was approved. The Borrower has defaulted in payment
of the monthly instalments since February 2001 and cannot be traced. To
recover the loss the respondent relies on the letter of instruction dated 18-10-
2000 to assert that the loss or damage was caused by the appellant in
particular for failing to do appropriate search, etc. The appellant here anchored
his appeal based on volenti non fit injuria, on the basis that the tort to commit
fraud by the bogus lawyer as well as the purchaser has already commenced
even before the respondent agreed to provide the loan and before the appellant
was appointment as solicitor. The said letter itself highlights unfinished
business such as bankruptcy search, and the respondent is not obliged to
release the said sum when it is apparent that the bankruptcy search or other
searches which the respondent may desire and complains of in this suit, has
not been done and will be risky to release the loan sum. If the underlying cause
for liability is because the borrower was a bankrupt, etc., then the doctrine
such as volenti fit injuria will come into play. However, if the said letter is an
accepted norm for release of payment according to conveyancing practice then
the appellant may be exonerated from liability. The court ruled that to say the
appellant had assumed responsibility pursuant to the said letter and the
respondent has relied on the representation or misstatements cannot be totally
correct within the parameters of accepted jurisprudence. 45

Volenti non fit injuria in Injury-prone Activities

A learner driver taking lessons from a friend is expected to meet the same
standard as a reasonable qualified competent driver. Although she raised the
defense of volenti non fit injuria that in agreeing to get in the car knowing she
was a learner, the friend voluntarily accepted the risk, volenti did not apply
as the friend had checked that the insurance covered her for passengers before
agreeing to go out with her. This demonstrated that he (friend) did not waive
any rights to compensation. The damages incurred when she mounted the
pavement and hit a lamp post and fractured the knee of her friend were
reduced by 50% under the Law Reform (Contributory Negligence) Act 1945 to
reflect the degree to which he was also at fault.46

45 Hing vs. Berhad, Civil Appeal No: A-02-1536-11, Court of Appeals of Malaysia

46 Nettleship v Weston [1971] 3 WLR 370 Court of Appeal

 22

In White v Blackmore (1972, 3 WLR 296 Court of Appeal) Mr White was a

driver in the race but at the time of the incident he was between races and
standing close to his family. He was killed at a Jalopy car race due to the
negligence in the way the safety ropes were set up. A car crashed into the ropes
about 1/3 of a mile from the place where Mr White was standing. There was a
warning sign at the entrance to the grounds which stated that Jalopy racing is
dangerous and the organizers accept no liability for any injury including death
howsoever caused. The programme also contained a similar clause. The
defense of volenti was unsuccessful in this case. While it he may have been
volens in relation to the risks inherent in Jalopy racing, he had not accepted
the risk of the negligent construction of the ropes.

No doubt the visitor takes on himself the risks inherent in motor racing,
but he does not take on himself the risk of injury due to the defaults of the
organisers. People go to race meetings to enjoy the sport. They like to see the
competitors taking risks, but they do not like to take risks on themselves, even
though it is a dangerous sport, they expect, and rightly expect, the organisers
to erect proper barriers, to provide proper enclosures, and to do all that is
reasonable to ensure their safety. If the organisers do everything that is
reasonable, they are not liable if a racing car leaps the barriers and crashes
into the crowd - see Hall v. Brooklands (1933) 1 K.B. 206. But, if the organisers
fail to take reasonable precautions, they cannot excuse themselves from
liability by invoking the doctrine of volenti non fit injuria: for the simple reason
that the person injured or killed does not willingly accept the risks arising from
their want of reasonable care.47

A participant in sporting events is taken to consent to the risk of injury which

occurs in the course of the ordinary performance of the sport.

The claimant suffered a broken leg during a tackle from the defendant
during a football match. The claimant was playing for Whittle Wanderers and
the defendant for the Khalso Football Club. Both clubs were in the Leamington
local league. The question for the court was the standard of care expected of a
football player. The court ruled that the standard of care varies according to the
level of expertise the player has. The defendant was in breach of duty as the
tackle was reckless even with regards the standard expected of a local league
player. Whilst a participant can be taken to accept the risks of injury inherent
to such sporting activities they do not accept the risk of injury which occurs
outside the rules of the game. 48

The claimant, a 15 year old boy, was out with four of his friends including the
defendant. The boys started throwing pieces of bark chippings and twigs at
each other. The claimant did not join in at first but then threw a piece of bark

47 Slater v. Clay Cross Co.(1956) 2 Q.B.20B;Wooldridge v. Summer (1963) 2 Q.B. at

page 69; Nettleship v. Weston (1971) 2 Q.B. at page 201)

48 Condon v Basi [1985] 1 WLR 866 Court of Appeal

 23

chipping at the defendant hitting him in the leg. The defendant picked it up
and threw it back at the claimant. The piece of bark struck the claimant's eye
resulting in serious injury. The court rejected the defense of volenti. The game
was played on the basis that the objects were thrown at no particular part of
the body. It follows that an object thrown in the general direction of a
participant, without negligence and without intent to cause injury, but which
happened to hit him in the face, was being thrown in accordance with the
understandings and conventions of the game, and in a manner to which the
participants had consented. In the context of 'horseplay' there is a breach of
the duty of care only where the defendant's conduct amounts to recklessness
or a very high degree of carelessness. The defendant had consented to the risk
of injury occurring within the conventions and understanding of the game. 49

It was suggested in Holmes vs. Mather (1875) that when a competent driver is
run away with by his horses, and in spite of all he can do they run over a foot-
passenger, the foot-passenger is disabled from suing, not simply because the
driver has done no wrong, but because people who walk along a road must
take the ordinary risks of traffic. But if this were so, why stop at misadventure
without negligence? It is common knowledge that not all drivers are careful. It
is known or capable of being known, that a certain percentage are not careful.
No one (at all events some years ago, before the admirable police regulations of
later years) could have crossed London streets without knowing that there was
a risk of being run over. The actual risk to which a man crossing the street is
exposed (apart from any carelessness on his own part) is that of pure
misadventure and also that of careless driving, the latter element being
probably the greater. If he really took the whole risk, a driver would not be
liable to him for running over him by negligence: which is absurd. Are we to
say, then, that he takes on himself the one part of the risk and does not take
the other? A reason thus artificially limited is no reason at all, but a mere
fiction. It is simpler and better to say plainly that the drivers duty is to use
proper and reasonable care, and beyond that he is not answerable. The true
view, we submit, is that the doctrine of voluntary exposure to risk has no
application as between parties on an equal footing of right, of whom one does
not go out of his way more than the other. A man is not bound at his peril to fly
from a risk from which it is anothers duty to protect him, merely because the
risk is known.

In Smoldon vs. Whitworth, the Court of Appeal upheld a High Court

ruling that the referee of the rugby was liable in damages to a player who was
seriously injured when a scrum collapsed. The referee pleaded volenti non fit
injuria. He argued that, since the claimant was fully aware of the dangers
involved in playing as a forward and had voluntarily played in the front row of
the scrum, Smoldon had consented to the risk of injury. The Court ruled that
the claimant had of course consented to the ordinary incidents of a game of
rugby football of the kind in which he was taking part. Given, however that the
rules were framed for the protection of him and other players in the same
position, he cannot possibly be said to have consented to a breach of duty on

49 Blake v Galloway [2004] 3 All ER 315 Court of Appeal)

 24

the part of the official whose duty it was to apply the rules and ensure so far as
possible that they were observed.50

A man cannot complain of harm (within the limits we have mentioned) to the
chances of which he has exposed himself with knowledge and of his free will.
Thus in the case of two men fencing or playing at singlestick, volenti non fit
injuria would be assigned by most lawyers as the governing rule, yet the words
must be forced. It is not the will of one player that the other should hit him; his
object is to be hit as seldom as possible. But he is content that the other shall
hit him as much as by fair play he can; and in that sense the striking is not
against his will. Therefore the assault of the school of arms is no assault in
law. Still less is there an actual consent if the fact is an accident, not a
necessary incident, of what is being done; as where in the course of a cricket
match a player or spectator is struck by the ball. I suppose it has never
occurred to any one that legal wrong is done by such an accident even to a
spectator who is taking no part in the game. So if two men are fencing, and one
of the foils breaks, and the broken end, being thrown off with some force, hits a
bystander, no wrong is done to him. Such too is the case put in the Indian
Penal Code(u) of a man who stands near another cutting wood with a hatchet,
and is struck by the head flying off. It may be said that these examples are
trivial. They are so, and for that reason appropriate. They show that the
principle is constantly at work, and that we find little about it in our books just
because it is unquestioned in common sense as well as in law.

A man dealing with explosives is bound, as regards his neighbors

property, to diligence and more than diligence. But if a person go and watch a
firework-maker for his own amusement, and the shop is blown up, it seems he
shall have no cause of action, even if the firework-maker was handling his
materials unskilfully. This, or even more, is implied in the decision in Ilott v.
Wilkes(x), where it was held that one who trespassed in a wood, having notice
that spring-guns were set there, and was shot by a spring-gun, could not
recover. The maxim volenti non fit injuria was expressly held applicable: he
voluntarily exposes himself to the mischief which has happened. The case gave
rise to much public excitement, and led to an alteration of the law, but it has
not been doubted in subsequent authorities that on the law as it stood, and the
facts as they came before the Court, it was well decided. As the point of
negligence was expressly raised by the pleadings, the decision is an authority
that if a man goes out of his way to a dangerous action or state of things, he
must take the risk as he finds it. And this appears to be material with regard to
the attempt made by respectable authorities, and noticed above, to bring under
this principle the head of excuse by reason of inevitable accident.

Other Foreign Jurisprudence

Trespassing

50 M. James and D. McArdle. Are you experienced? Playing cultures: sporting rules
and personal injury litigation after Caldwell v Maguire
 25

In the case of Titchener v British Railways Board (1983, 1 WLR 1427),

The claimant, a 15 year old girl, was out walking with her boyfriend who was
16. They took a short cut across a railway line and they were both hit by a
train. He was killed and she was seriously injured. There was a gap in the fence
at the place where they crossed and there was a pathway leading to this gap
which suggested that there was repeated trespass. She sued the board under
the Occupiers' Liability (Scotland) Act 1960 for failing in their common duty of
care to keep the premises reasonably safe for visitors. The House of Lords
dismissed the claimant's final appeal, holding that she was not owed any duty
under the Occupiers' Liability (Scotland) Act 1960 on the grounds that she had
voluntarily decided to run the risk of walking on the railway line. As such, the
defender had no duty, at least in relation to the pursuer, to maintain the fence
any better than they had, based on the principle of volenti non fit injuria.

In the case of Tomlinson v Congleton Borough Council (2003, KHL 47), in

May 1995, the claimant, John Tomlinson (then aged 18), visited an artificial
lake, part of a country park in Brereton, Cheshire in the borough of Congleton
with his friends. While there, Tomlinson dived into the water and hit his head
on the sandy bottom, leaving him tetraplegic as a result of a break to the fifth
vertebra of his neck. He subsequently brought proceedings against Congleton
Borough Council under the Occupiers' Liability Act 1984 (as a trespasser),
claiming for loss of earnings, loss of quality of life and the cost of the care he
would require as a result of his injuries. Tomlinson contended that the council
owed him a duty under the '84 Act as the premises were not reasonably safe for
his use (S.1(1) '84 Act), claiming that there had not been adequate warning of
the dangers of diving in the water. The House of Lords held that the claimant's
injuries were not due to the "state of the premises" The grounds of public policy
(law) holding that, to decide in the claimant's favour would discourage the
council from providing facilities for individuals to enjoy themselves. Lord
Hobhouse stated on the second point, that The pursuit of an unrestrained
culture of blame and compensation has many evil consequences and one is
certainly the interference with the liberty of the citizen. Of course there is some
risk of accidents arising out of the joie de vivre of the young, but that is no
reason for imposing a grey and dull safety regime on everyone. The ruling was
considered landmark as it stated that individuals must take responsibility for
their own actions. It was seen as attempting to stem a "compensation culture"
that was perceived to be growing in the UK, but which some say are
exaggerated and that the law will protect potentially risky but "useful
activities".

Drunk Drivers

In the case of Morris vs. Murray (1991, 2 QB 6), the defense of volenti
non fit injuria was allowed in actions where the claimant accepted a ride in an
aircraft when the pilot was obviously heavily intoxicated. It was so glaringly
dangerous that he could be taken to have voluntarily accepted the risk of
injury and waived the right to compensation. Here, a claimant and defendant
had been drinking all day where the latter, who had a pilot license and a light
 26

aircraft, suggested that they took the aircraft for a flight. The claimant agreed
and drove them both to the airfield. They started the engine and the defendant
took off but crashed shortly after. The defendant was killed and the claimant
was seriously injured. An autopsy revealed that the defendant had consumed
the equivalent of 17 Whiskeys.

Rescuers

One limitation of the maxim volenti non fit injuria is that it does not
apply to rescue cases. That is to say, in rescue case although the plaintiff
voluntarily takes a risk to save somebody from the danger caused by the
wrongful act of the defendant, yet the defendant will not succeed on the plea of
volenti non fit injuria.

A claimant must be "so closely and directly affected by one's act that one
ought reasonably to have them in contemplation", rescuers are invariably
deemed to be neighbors, even if their presence would objectively seem to be
somewhat unlikely.51

A rescuer would not be considered volens (assuming the risk) if:

a. He was acting to rescue persons or property endangered by the defendants

negligence;
b. He was acting under a compelling legal, social or moral duty; and
c. His conduct in all circumstances was reasonable and a natural consequence
of the defendants negligence.

An example of such a case is Haynes v. Harwood [(1935) 1 KB 146], in which a

policeman was able to recover damages after being injured restraining a bolting
horse: he had a legal and moral duty to protect life and property and as such
was not held to have been acting as a volunteer or giving willing consent to the
action - it was his contractual obligation as an employee and police officer and
moral necessity as a human being to do so, and not a wish to volunteer, which
caused him to act. The defendant left a horse-drawn van unattended in a
crowded street. The horses bolted when a boy threw a stone at them. A police
officer tried to stop the horses to save a woman and children who were in the
path of the bolting horses. The police officer was injured. It was held that the
defendant owed a duty of care as he had created a source of danger by leaving
his horses unattended in a busy street. It was also held that the rescuer's act
need not be instinctive in order to be reasonable, for one who deliberately
encounters peril after reflection may often be acting more reasonably than one
who acts upon impulse.

By contrast, in Cutler v. United Dairies [(1933) 2 KB 297] the claimant

was injured when he entered a field to calm some horses. His claim for
compensation was unsuccessful as the horses presented no immediate danger

51 Baker v Hopkins [1959] 3 All ER 225 (CA).

 27

to persons or property and there was no need for him to intervene. He was thus
held to be volens.

Suicide

Where the Claimant commits suicide, originally it was held that they
would be treated as volens if they were of sound mind, but if they were of
unsound mind the defense of volenti non fit injuria would have no application.

In the case of Kirkham v CC Greater Manchester Police (1990, 2 QB 283

Court of Appeal) Mr. Kirkham in this case was an alcoholic and suffered from
depression. He had made a two suicide attempts on 6th Jan 1980. He was
admitted to hospital but discharged himself the following day. When he arrived
home his wife prevented him from drinking and he became violent and started
smashing furniture. The police were called and arrested him. His wife informed
them of his suicide attempts and discharging himself from hospital and it was
agreed that he should be remanded in custody for his own safety. However, the
police failed inform the prison authorities that Mr Kirkham was a suicide risk.
He committed suicide whilst on remand at Risley Remand Centre. His wife
brought an action based on the negligence of the police in failing to pass on the
information. The Police raised the defences of volenti non fit injuria. The
defense of volenti non fit injuria, although normally would apply where a
person of sound mind were to take their own life, had no application where a
person of unsound mind took their life. The court applied the public conscience
test and concluded that to allow the claimant to succeed would not affront the
public conscience, or shock the ordinary citizen.

In another case, Reeves v Commissioner of Police of the Metropolis (2000,

1 AC 360 House of Lords) Martin Lynch committed suicide whilst in a police
cell. He had attempted suicide earlier that day in the cells at the magistrates.
He had also attempted suicide on previous occasions. He had been seen by a
doctor at the police station on arrival who reported that he was not
schizophrenic or depressed but was a suicide risk. The custody officer checked
him at 1.57 pm and left the hatch open. He was found at 2.05 pm having used
his shirt as a ligature secured by the open hatch. He was unable to be
resuscitated and died a week later. The defendant argued that as Lynch was of
sound mind his voluntary and informed act of suicide broke the chain of
causation. The court ruled that the act of suicide was the very thing that the
police were under a duty to prevent to treat this as a novus actus interveniens
would deprive the duty of any substance. Therefore the defendant was liable,
however damages were reduced by 50% under the Law Reform (Contributory
Negligence) Act 1945.

International Loans

The World Bank is an international financial organ based on Washington

D.C. Its mission is to eliminate poverty and to foster development conceding
loans to developing countries. For a long time it has been thought that
 28

financing is a discretional activity subject to technical requirements, but not

subject to juridical principles. This is changing. Juridical principles are
emerging which establish criteria of justice and fairness for international
loans.52

At first sight, the emergence of juridical principles applicable to international

loans is hard to justify. Law seeks to punish, to prevent and to compensate
harms, but it rarely cares about benefits given to others. Seemingly, a credit
line offered in favorable conditions is a benefit and not a harm. Additionally,
loans are assumed voluntarily by developing countries and law normally is not
in the business of judging the quality of voluntarily assumed pacts. Rather law
accepts these pacts and uphold them. 53

In reality, international loans are problematic and can constitute harms as well
as benefits, and the principle volenti non fit injuria cannot be applied without
restriction to these loans.54

Product Liability

It must be noted that the defense of volenti non fit injuria applies to product
liability cases. This principle is to the effect that no harm is done or occasioned
to anyone who knowingly and voluntarily consents to the act leading to such
an injury. For instance, if a product has an expiry date, as a result of which it
has been withdrawn off the shelve, a consumer conscious of the expiry date
solicits an attendant to sell it to him, though illegal, cannot hold the
manufacturer liable for any consulting injury occasioned by such product.55

Physical Assault

In 1990, five British men were convicted with assault occasioning actual bodily
harm. The conviction was due to the men partaking consensual
Sadomasochistic Sexual Practices throughout a period of ten years. None of the
men ever filed a complaint or made any grievances known regarding these
activities. They partook in these activities voluntarily and with the fullest
consent. The mens extracurricular activities were discovered by police in a
completely unrelated investigation. The men appealed against the judgment of
the trial court. Their contention was that the person cannot be guilty of assault
in respect of acts that are consensual and private. They contended that
consent should be a recognized defense to the charge of assault, since the

52 G. Arosena. Newsletter International Negotiations: The principles that regulate

development financing, by

53 Ibid

54 Ibid

55 G. AkinrinmadeFootnote: Page 204, The Jurisprudence of Product Liability in

Nigeria: A Need to Complement the Existing Faulty Theory, by Gbade Akinrinmade)
 29

person has complete dominion over his or her own body. People should be
allowed to do whatever they want to their bodies, including allowing it to suffer
extreme pain and torture. The Court of Appeals dismissed the appeal. The
House Lords affirmed the Court of Appeals decision. The majority of the Law
Lords held that it is against the public interest that a person should wound or
cause actual bodily harm to another for no good reason and, in the absence of
such a reason, the victims consent did not constitute a defense to a charge of
assault. According to the House of Lords, the satisfaction of sadomasochistic
desires did not provide the men with a good reason for inflicting gross harm to
one another. The court held that one cannot consent to harm occasioned by an
unlawful activity. Consent is only a defense when the harm in question results
from a lawful activity.56

V. LOCAL JURISPRUDENCE AND FOREIGN JURISPRUDENCE IN

COMPARISON

VI. CONCLUSION

Parallel considerations across different legal traditions have related to the

quality of consent in respect of conduct where consent invalidates an essential
element of the act (for example rape or burglary). In all major legal systems,
where the defense of consent is available it must satisfy a certain standard:
generally that it is both informed and freely given. Consent to the perpetrators
act that is obtained through obstructive agents such as coercion or fraud will
be void from the beginning. In addition, certain groups of persons, most
particularly children and the mentally disabled (but also sometimes women
and those whose decision-making capacity was or is considered to be impaired
in some way) are deemed to be incapable of delivering the necessary quality of
consent.57

It is evident that there must be some limit in actions of negligence to the

defense. It cannot be that wherever a plaintiff knows there is some risk he
debars himself from any right to complain if injury happens to him.2 A person-
does not necessarily assume the risk of the defendant's negligent action, even if
he knows of it. Thus, if A. knows that B. drives his cab carelessly, and that he
has run down many persons, A. does not necessarily voluntarily assume the
risk of being knocked down, by simply crossing a street in which he knows B.
to be driving. It is submitted that the application of the maxim or defense must
be limited to those cases where the plaintiff and defendant enter into some
distinct relation towards each other, such as employer and employee, occupier
of land and person entering upon the land, contractor and contractee, railroad

56 [Footnote: R v. Brown 1993 2 ALL ER 75 (HL)] reference cited from the footnote
of a study.

57 (Footnote: The role of Consent in the trafficking in person protocol Issue

Paper, United Nations Office on drugs and crime)
 30

and passenger, seller of article and person purchasing or likely to purchase or

use.58
The key is to be found in the character of the relationship between the
parties and their respective duties in the light of it. The plaintiff takes a risk
voluntarily where the defendant has a right to face him with the dilemma of
"take it or leave it"--in other words where defendant is under no duty to make
the conditions of their association any safer than they appear to be. 59

58 [Footnotes: "Volenti Non Fit Injuria" in Actions of Negligence, by Charles Warren

Harvard Law Review, Vol. 8, No. 8 (Mar. 25, 1895)]

59 (Footnote: Assumption of Risk, 61 Y ale L.J. 141 (1952) by Fleming James Jr)