Extended meaning of volenti

non fit iniuria.

Trials of strength and skill in such pastimes as those above mentioned afford, when carried on within lawful bounds, the best illustration of the principle by which the maxim volenti non fit iniuria is enlarged beyond its literal meaning. 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 iniuria 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.

(u) Illust. to s. 80. On the point of actual consent, cf. ss. 87 and 88.

of these

Many cases of this kind seem to fall as naturally under Relation the exception of inevitable accident, if that exception is cases to allowed to the extent contended for above. But there is, accident.

we conceive, this distinction, that where the plaintiff has voluntarily put himself in the way of risk the defendant is not bound to disprove negligence. If I choose to stand near a man using an axe, he may be a good woodman or not; but I cannot (it is submitted) complain of an accident because a more skilled woodman might have avoided it. A man dealing with explosives is bound, as regards his neighbour's property, to diligence and more than diligence. But if I go and watch a firework-maker for my own amusement, and the shop is blown up, it seems I shall have no cause of action, even if he 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 springguns were set there, and was shot by a spring-gun, could not recover. The maxim "volenti non fit iniuria " was expressly held applicable: "he voluntarily exposes himself to the mischief which has happened" (y). 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.

(x) 3 B. & Ald. 304 (1820); cp. and dist. the later case of Bird v. Holbrook, 4 Bing. 628. The argument that since the defendant could not have justified shooting a trespasser with his own hand, even after warning, he could not justify shooting him with a spring-gun, is weighed and found wanting, though perhaps it ought to have prevailed.

(y) Per Bayley J. 3 B. & Ald. at p. 311, and Holroyd J. at p. 314.

(2) Edin. Rev. xxxv. 123, 410 (reprinted in Sydney Smith's works). Setting spring guns, except by night in a dwelling-house for the protection thereof, was made a criminal offence by 7 & 8 Geo. IV. c. 18, now repealed and substantially re-enacted (24 & 25 Vict. c. 95, s. 1, and c. 100, s. 31).

inevitable

Knowledge of risk opposed to duty of warning.

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 (a).

It was held by a majority of the Court of Appeal that if a man undertakes to work in a railway tunnel where he knows that trains are constantly passing, he cannot complain of the railway company for not taking measures to warn the workmen of the approach of trains, and this though he is the servant not of the company but of the contractor (b). The minority held that the railway company, as carrying on a dangerous business, were bound not to expose persons coming by invitation upon their property to any undue risk, and at all events the burden of proof was on them to show that the risk was in fact understood and accepted by the plaintiff (c). "If I invite a man who has no knowledge of the locality to walk along a dangerous cliff which is my property, I owe him a duty different to that which I owe to a man who has all his life birdnested on my rocks" (d).

But where a man goes on doing work under a risk which is known to him, and which does not depend on any one else's acts, or on the condition of the place where the work

(a) Holmes v. Mather (1875) L. R. 10 Ex. at p. 267; Rylands v. Fletcher (1866) L. R. 1 Ex. at p. 287.

(b) Woodley v. Metr. Dist. R. Co. (1877) 2 Ex. Div. 384, 46 L. J. Ex. 521; Mellish and Baggallay L. JJ. diss.

(c) Cp. Thomas v. Quartermaine (1887) 18 Q. B. Div. 685, 56 L. J. Q. B. 340, and Lord Herschell's judgment in Membery v. G. W. R. Co. (1889) 14 App. Ca. 179, 190. (d) Fry L. J. 18 Q. B. Div. at p. 701. And see Yarmouth v. France (1887) 19 Q. B. D. 647, 57 L. J. Q. B. 7.

is done, but is incident to the work itself, he cannot be heard to say that his exposure of himself to such risk was not voluntary (e).

Quarter

The maxim volenti non fit iniuria was carefully discussed Thomas v. by the Court of Appeal in Thomas v. Quartermaine (ƒ), maine. where the actual decision was that the defence in question is not excluded, as between master and workman, by the Employers' Liability Act, 1880; but the matter of the judgments is of wider scope. The opinion is clearly expressed that the principle is quite different from that of contributory negligence (g), as it is quite independent of the contract of service or any other contract (h). It does not follow that a man is negligent or imprudent because he chooses to encounter a risk which he knows and appreciates; but that position is inconsistent with a right of action founded upon a duty which exists for the purpose of protecting the public, or some class of persons, from risks which they have no reason to expect. "The duty (i) of an occupier of premises which have an element of danger upon them reaches its vanishing point in the case of those who are cognisant of the full extent of the danger and voluntarily run the risk” (j). At the same time knowledge is not of itself conclusive in this or in any class of cases. maxim is volenti-not scienti-non fit iniuria; "the question whether in any particular case a plaintiff was volens or nolens is a question of fact and not of law" (k). A workman is

(e) Membery v. G. W. R. Co., note (c), last page. Lord Bramwell's extra-judicial remarks seem too wide see per Lord Herschell, 14 App. Ca. at pp. 192, 193.

(f) (1887) 18 Q. B. Div. 685, 56 L. J. Q. B. 340.

(g) Bowen L. J. 18 Q. B. Div. at pp. 694, 697. (h) Ibid. 698.

The

(i) As to these special duties, see pp. 7, 19, above, and for details, Ch. XII. below.

(j) Bowen L. J. 18 Q. B. Div. at p. 695.

(k) Ibid. at p. 696; Lindley L. J. in Yarmouth v. France (1887) 19 Q. B. D. 647, 659, before judges of the C. A. sitting as a divisional Court.

Distinc

cases where

of action.

not bound, for example, 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 (d). Cases of volenti non fit iniuria are of course to be distinguished from cases of pure unexpected accident where there is no proof of any negligence at all on the defendant's part (e).

In the construction of a policy of insurance against death or injury by accident, an exception of harm "happening by exposure of the insured to obvious risk of injury" includes accidents due to a risk which would have been obvious to a person using common care and attention (ƒ).

We now see that the whole law of negligence assumes the principle of volenti non fit iniuria not to be applicable. It was suggested in Holmes v. Mather (g) that when a negligence is ground 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. The actual risk to

(d) Yarmouth v. France, last note; Thrussell v. Handyside (1888) 20 Q. B. D. 359, 57 L. J. Q. B. 347.

(e) Walsh v. Whiteley (1888) 21 Q. B. Div. 371, 57 L. J. Q. B. 586. Quaere, whether on the facts

Thomas v. Quartermaine (last page) was not really a case of this kind.

(f) Cornish v. Accident Insurance Co. (1889) 23 Q. B. Div. 453. (g) L. R. 10 Ex. at p. 267.