Accepting the Risk of Injury; the Sheriff Appeal Court considers how foolish is foolish enough

08.03.19

Diane Raybould raised a personal injury claim against T&N Gilmartin (Contractors) Limited (T&N) after she fell when attempting to access the front door to her property. The ground immediately in front of her door was very uneven as a result of extensive works being carried out in the street. Mrs Raybould had mobility issues and required a stick to walk.

The case went to trial in the All Scotland Personal Injury Court (ASPIC). Mrs Raybould argued that T&N had breached its common law duty to take reasonable care and to provide safe access across the excavation works to residents’ properties.

After the proof (trial), the Sheriff found in favour of T&N. He did so by application of the rarely used principle of volenti non fit injuria, which means that one who knowingly and voluntarily consents to and takes on a risk, cannot be compensated for any injury which arises if that risk comes to pass. In the first place, it must be proved that the claimant knew of the risk (known as “sciens”) and, in the second place, that the claimant accepted or voluntarily assumed the risk (“volens”).  If volenti principle is established, it is a complete defence regardless of the fact that a defender has been negligent. Accordingly, it has a very restricted application.

In this case the Sheriff commented that “in no sense could she [Mrs Raybould] be said to be unaware of the risk she was running by attempting to cross the excavated area...”

The Appeal

Mrs Raybould appealed the decision on the basis that T&N had not argued volenti. Indeed no mention was made of the principle until the Sheriff’s decision which was given orally immediately after the proof had concluded.  The Sheriff Appeal Court considered three questions:

  1. Can volenti apply if parties have not pled it prior to proof ? (i.e. mentioned it in their written pleadings)
  2. Can volenti apply if there is no breach of duty of care?
  3. Does volenti apply to the facts of this case?

The Appeal Court answered the first two questions in the negative. It also concluded that T&N had breached its duty of care to Mrs Raybould by failing to provide safe access to her front door. The appeal court then required to consider the third question - whether volenti applied to the facts of the case.

The Appeal Sheriffs concluded that, in order to establish volenti, T&N was required to prove that Mrs Raybould’s decision to walk to her front door broke the chain of causation. In effect, that her actions eclipsed T&N’s breach of duty because those actions were the real cause of her injuries.

Although it was recognised that the test for volenti was not capable of precise definition and was fact sensitive; the Appeal Court accepted the approach set out in the Welsh case of Clay v TUI UK Ltd [2018] EWCA Civ 117. In Clay the claimant had attempted to cross between balconies when he was locked out of his hotel room due to a defective lock on the balcony door.  He fell when cornicing gave way underneath him. The courts examined how foreseeable, reasonable and deliberate the claimant’s actions were in those circumstances.  In this case, the original and the appeal courts both concluded that the claimant’s actions were the effective cause of his fall, not the defective lock and that his actions were so unexpected and foolhardy that they amounted to an acceptance of him of the risks he was undertaking.

In the Raybould case, the Appeal Court was not satisfied that the high degree of unreasonableness present in the Clay case was reached. Mrs Raybould was simply attempting to enter her home in difficult circumstances - it was foreseeable that a resident would try to do so. Mrs Raybould’s physical limitations meant that her decision to do so was not entirely unreasonable. We suspect, for example, the outcome would have been different in the Clay case, had Mr Clay injured his hand trying to force open the defective balcony door and in the Raybould case, if Mrs Raybould had injured herself while attempting to enter her home via a window (if that were possible).   

The appeal court did, however, find that Mrs Raybould had been contributorily negligent and the level of her contribution was assessed at 50%. She had known the area was unsafe and had pressed on over a dangerous area of ground regardless.  Her damages claim was therefore reduced by 50%.

When is volenti likely to provide a defence?

The Raybould case, while also highlighting some difficulties with oral decisions given in court (that is, in properly understanding how a judge has reached a decision), gives useful guidance about the application of the volenti defence and when it might succeed:

  1. a defender will need to reference volenti in their written pleadings;
  2. negligence on the part of the defender will need to be accepted by the defender or established at proof; and
  3. the claimant’s actions will require to be unreasonable and unforeseeable.