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14
Through Legal Eyes
touchline
UK Perspective
To a willing person, no injury is done?
Interpreting Assumption of Risk
The notion of an “assumption of risk” in
personal injury claims is an extension of
the long-established principal of
volenti non
fit injuria
– to a willing person, no injury
is done (or “that to which a man consents
cannot be considered an injury”). It is a
defence which has been cited since long
before the
Poppleton
case, for example
dating back to
Haynes v Harwood
in 1935,
where a policeman recovered damages
after suffering injury by restraining a bolting
horse (where it was held that he had a
professional and moral duty to protect
life and that, accordingly, he could not be
seen to have consented to the risk in the
same way as, for example, a volunteer).
Volenti
has been established as an absolute
defence, and in that sense it is an approach
that the courts are willing to uphold, but the
defendant will need to show:
1) the claimant was fully aware of the risks,
including the nature and extent of the risk;
and
2) the claimant expressly (by his statements)
In this issue of Touchline our legal experts
from Australia, Canada and the U.K. look at
“assumption of risk”. In the first issue, we
reported a decision by the UK appeal court to
overrule a July 2007 decision which awarded
a man who had fallen from a climbing wall 1
million pounds in compensation because the
climbing centre had failed to warn the man that
thematting did not provide complete protection
from injury. However, in 2008, the UK appeal
court judges overruled this decision finding
the man wholly to blame for the accident and
entitled to no compensation.
or impliedly (by his actions) consented
to taking that risk, thus waiving his right
to damages. Note that mere knowledge
of the risk will not amount to consent, as
established in
Haynes v Harwood.
Varying decisions over the years have
revealed that getting over both limbs of
volenti
is not a straightforward exercise.
In
Poppleton
, it was eventually decided
that the risk of injury from falling off a
climbing wall onto crash mats below was
so obvious that it could not have been
incumbent on the defendant to have
specifically warned the claimant about it.
However, that decision (seemingly based
more on common sense than any legal
masterstroke) was only achieved once the
case reached the Court of Appeal. Similarly,
in
Tomlinson v (1) Congleton Borough
Council (2) Cheshire County Council (2003),
where the claimant suffered severe injuries
after diving into a shallow lake, it was not
until the case reached the House of Lords
that what appeared to be a common sense
decision (that the risk associated with
diving into the lake was so obvious that the
defendants could not be expected to have
issued a specific warning, especially where
a clear “Dangerous Water. No Swimming.”
sign was on display) was made.
The insurance industry is regularly dealing with claims that involve an “assumption
of risk”. Being injured whilst being tackled in a game of football, stepping into a
hole in a pitch or sports ground or even being hit by a golf ball whilst playing golf
all are commonplace occurrences with many ending in legal action.
Some plaintiffs are awarded millions whilst others fail to recover anything at all.
Courts take differing views and the outcomes are vastly different.
Hurdles may need to be overcome for common sense to apply
Another hurdle which must be overcome
by defendants is that, even if both limbs of
the
volenti
/assumption of risk defence are
established, they will come into difficulty if
it can be shown that the claimant’s consent
to the risk was brought about by duress:
the consent must be free and voluntary. In
Vowles v (1) David Evans (2) Welsh Rugby
Union Ltd (2003),
it was held that a referee
in an amateur rugby match was liable
for injuries suffered by a player who was
allowed to play as a prop despite having
little experience in that position. It was held
that, even though there is an obvious and
inherent risk of injury in rugby, the injured
player only consented to that risk because
the referee directed that the game should
continue with him playing in that position.
Assumption of risk is a defence which
remains valid and is duly considered by UK
courts in personal injury claims. However,
even where common sense seems to
suggest that a
volenti
defence should
succeed, the hurdles a defendant may need
to overcome to see common sense prevail
may be considerable.
Stephen Hooper is a solicitor with Eastwoods
Solicitors in London.