Consent (Voluntary Assumption of Risk)

Introduction

This chapter examines **consent** — the defence also known by its Latin maxim **volenti non fit injuria** ('he who voluntarily accepts the risk is not harmed'). Consent is a **complete defence**: where it succeeds, the claimant recovers **nothing**, even though the defendant has breached a duty owed to the claimant. To make out the defence, a defendant must prove **four cumulative elements** — that the claimant had the **capacity** to consent, had **full knowledge** of the nature and extent of the risk, **agreed** to run the risk of injury, and did so **voluntarily**. This chapter works through each element with its leading authorities, then addresses the **statutory limits** on the defence and how it overlaps with **contributory negligence**.

Assessment focus

For SQE1 FLK1, you should be able to identify when the defence of consent (volenti) is **available** to a defendant in a negligence (or other tort) claim and, crucially, when it **fails**. Single best answer questions are set in **realistic client scenarios**: you will be expected to **apply** the four elements to the facts rather than merely recite them. High-yield testable points include: the **subjective** nature of the knowledge requirement (**Morris v Murray**); the distinction between **express** and **implied** consent (**ICI v Shatwell**; **Dann v Hamilton**); the **voluntariness** requirement in the employment context (**Bowater v Rowley Regis Corp**; **Smith v Baker & Sons**); and the **statutory bars** under **s. 149 Road Traffic Act 1988** and **s. 2(1) Unfair Contract Terms Act 1977**. This is a closed-book assessment, so commit the elements, the leading cases and the statutory limits to memory.

Study tips

1) Learn the **four cumulative elements** (capacity / full knowledge / agreement to the risk / voluntary) — the defence fails if **any one** is missing. 2) Knowledge is **subjective**: ask what *this* claimant actually knew, not what a reasonable person would have known (**Morris v Murray**; contrast **Smith v Austin Lifts**). 3) Courts imply consent only where the danger is **overwhelmingly obvious** — compare **Morris v Murray** (defence succeeded) with **Dann v Hamilton** (defence failed). 4) **Voluntariness** is fragile in employment: **Bowater** and **Smith v Baker** show a worker ordered to run a risk has no 'free' choice. 5) Remember the two big **statutory traps**: **s. 149 RTA 1988** bars volenti against a car passenger where compulsory insurance applies, and **s. 2(1) UCTA 1977** prevents excluding liability for **negligently caused death or personal injury** (property loss may still be excluded). 6) Consent is a **complete** defence; contrast it with **contributory negligence** (partial). Where volenti fails, **contributory negligence may still reduce** damages.