LAWS1113 Lecture 12

Negligence: Defences

Volenti non fit injuria

  • Applies when the plaintiff freely and voluntarily, with full knowledge of the risk, explicitly or impliedly agreed to incur it
  • 100% defence – all or nothing, so difficult to establish, and consequently rarely pleaded now that contributory negligence supports apportionment and can reach 100% by itself.


  1. Plaintiff had full knowledge of the nature and extent of factual risk
  2. Agreement to incur LEGAL risk (and not sue)
  3. Must be made freely and voluntarily
  • Doesn’t look at what a reasonable person would have known or agreed to, only what the actual plaintiff did
  • Generally requires foreknowledge of the risk (eg. Having experienced it before or seen others experience it) rather than a guess based on the future
  • Traditionally drink driving was covered by volenti – has been moved to contributory negligence since the apportionment legislation (Law Reform Act 1995)
  • Injured in a risky job is not considered ‘free and voluntary’, as refusing the risk would have likely cost the person their job. Similarly, acting under pressure in an emergency is unlikely to be considered ‘free and voluntary’
  • Has been made slightly easier to establish under the CLA, due to:

ss 13 & 14: vague and generous definition of ‘obvious risk’, combined with the presumption of awareness of obvious risks (one of the three requirements to establish volenti)
s 16: No liability for ‘inherent risks’ (probably not actually a change to common law, but now codified in statute form)
s 19: No liability for ‘obvious risks’ of dangerous recreational activities (not technically volenti – more a ‘new’ defence, but provides a complete defence based on the implicit assumption of a supposedly obvious risk)

Relevant Cases

Insurance Commissioner v Joyce – Knowingly accepting a ride from a drunk driver constitutes knowingly accepting and agreeing to a risk. Passenger injured when the drunk driver crashed, driver held not liable under volenti, almost certainly no longer good law, given apportionment and the CLA.

McPherson v Whitfield – Volenti is difficult to establish in the case of a drunk driver – When a passenger enters a vehicle with a driver whose capacity to drive safely has been impaired but not destroyed, the defence of volenti non fit injuria is generally unavailable. Contributory negligence is much more likely to apply.

Avram v Gusakoski – Volenti does not apply when the plaintiff had only a very brief window to prevent an action before being forced to accept it. Sober driver surrendered the wheel to a drunk, passenger didn’t get out in time, drunk took off, and an accident ensued.

Mulligan v Coffs Harbour – If a risk is sufficiently obvious, merely taking it connotes acceptance – diving into shallow creek resulted in injury, was held to be so obvious that no warning was required.

Fallas v Mourlas – Not only must the activity be dangerous, but the obvious risk must be a risk of the dangerous activity itself. Kangaroo shooting ruled to be a dangerous activity, but risk of being shot in the vehicle by a companion who has repeatedly been warned to be careful with his gun not an obvious risk of the activity

Contributory Negligence

  • Failure to take reasonable care for your own safety
  • Not technically negligence of the plaintiff, as it doesn’t need to have caused the damage suffered – only need to establish that they breached their duty to themselves, which made the accident more likely to occur or more severe than it would have been
  • Historically an absolute defence that was rarely successful, but has been changed to apportion damages by the Law Reform Act (1995), and now almost always applies
  • Not looking at subjective elements – entirely objective
  • Evaluate if the injury is foreseeable, if it falls into the class of risk, and if it made some contribution to the damage from the perspective of the reasonable person
  • Same standard not required in an emergency or while rescuing someone – particularly pre-apportionment (now could theoretically result in a nominal reduction)
  • Must prove a causal link between the careless behaviour and the damage (but only contribution must be established – not actual responsibility)
  • NB: Apportionment is not relevant to the intentional torts.

Has been modified by the CLA in the following ways:
s 23- Standard of care – (is this different to the common law?)
s 24- 100% reduction due to contributory negligence is now possible
s 46 – No greater duty is owed to an intoxicated individual
s 47 – Intoxicated plaintiff faces an assumed reduction of 25% (or 50% if driving) unless they can prove their intoxication played no part
s 48 – If the plaintiff is older than 16 years and knowingly relying on an intoxicated person, presumption of contributory negligence with minimum 25% reduction is assumed and must be disproven – however the defence of volenti cannot be used by the person they were relying on.
s 49- If the intoxicated person was the defendant and they were driving, the minimum reduction in section 48 becomes 50%

Relevant Cases

Joslyn v Berryman – If a plaintiff is or ought to have been aware that the driver is impaired, they are liable for contributory negligence. Plaintiff was out partying with defendant that night, surrendered wheel to defendant prior to passing out drunk.

McPherson v Whitfield – Self inflicted diminished capacity does not protect from a finding of contributory negligence if a reasonable person would have foreseen prior to drinking that they would probably have to drive home themselves or be driven home by a drunk. 3 friends out drinking, all get drunk, had to drive home, accident ensues.

McLean v Tedman - A person who owes a duty of care to others must take account of the possibility that one or more of the persons to whom the duty is owed might fail to take proper care for his or her own safety

Caterson v Commissioner for Railways – In the event of an emergency they did not cause, the plaintiff is not expected to adhere to the standard of the reasonable person for actions/decisions made in the heat of the moment. Train departing, 80 mile journey – jumped off to reunite with son.

Leyden v Caboolture Shire Council – When the plaintiff has sufficient foreknowledge of the risks, they can be deemed obvious and accepted. A sufficiently mature youth can be held to the same standard as the reasonable person. BMX track that the kids had made unsafe that the plaintiff had been using for some time.

Froom v Butcher – Failure to wear a seat belt constitutes contributory negligence, as a reasonable person would wear them to mitigate potential injury. Traffic accident at a time when contributory negligence was an absolute defence.