Voluntary assumption of risk 'hard to prove'

Defending claims for injuries to Australian sports players was “difficult”, two Victorian barristers told the AILA conference.

In a joint presentation on the voluntary assumption of risk, Danny Masel and Diana Costaras said insurers seeking to beat sporting injury claims had to prove the injured person was:

• fully aware of the risk;
• fully appreciated its nature and extent; and
• freely and willingly accepted the risk.

All three components of what was known as the volenti non fit injuria defence were difficult to meet, but the third point could be near impossible due to the need to prove what the person understood about the potential for injury at the time of the incident.

“To establish a prima facie liability in the context of sport, there must be negligence on the part of someone else,” Mr Masel said. “In an appropriate case, a defence of voluntary assumption of risk can defeat that liability, but such cases are truly very rare.”

Volenti non fit injuria, commonly referred to simply as the volenti defence, literally translated as "to a willing person, injury is not done".

Mr Masel said plaintiffs in sports injury claims must prove the injury was deliberate or caused through the negligence of the person or organisation in charge at the time of the incident.

It was then open for the defence to prove a plaintiff fully comprehended the risk of injury and freely chose to accept it. It was entrenched as a defence by Lord Herschell’s 1891 ruling in Smith v Charles Baker & Sons, when he said: “The [volenti] maxim is founded on good sense and justice. One who has invited or assented to an act being done toward him cannot, when he suffers from it, complain of it as a wrong.”

Mr Masel said to establish a volenti defence, a defendant must prove, on the balance of probabilities, that the plaintiff was not only aware of the danger, but voluntarily agreed to accept the risk.

“Unlike cases where a contractual exclusion clause could be used, in a volenti defence, the evidence would usually be inferential,” he said. “It must establish that the plaintiff, knowing of the risk, accepted that if the risk came to pass, he or she would wear the loss, without recourse to the negligent defendant.”

The difficulty was a person could not be considered to have voluntarily assumed the risk of negligence on the part of another by merely engaging in a sport or pastime, even if the activity carried an inherent danger.

Mr Masel referred to a NSW Appeal Court decision to dismiss a volenti defence in Canterbury Municipal Council v Taylor. The Canterbury council ran a sport complex with a cycle track bordering a playing field.

A cyclist was warming up on the cycle track while touch football players were concluding a match on the playing field. A touch footballer stepped back onto the track and the cyclist collided with him. The footballer was killed, and the cyclist suffered physical and psychological injuries. He sued the council and established negligence in management of the dual-use facility.

The council pleaded volenti as one of its defences. It was found the cyclist knew of, and appreciated the risk of dual use, namely that a touch player might carelessly walk into his path. But despite that awareness of the risk, the volenti defence was rejected at first instance and on appeal.

Appeal Court Justice David Ipp said: “The issue is not whether the plaintiff voluntarily and rashly exposed himself to the risk of injury, but whether he agreed that if injury befell him the loss should be on him and not on the defendant.”

Mr Masel said although the plaintiff appreciated the risk, it did not mean he assumed the risk by participating in the warm-up.

“Justice Ipp found he had not agreed that, if injury befell him, the loss should be on him and not on any other negligent party. Knowledge of the risk alone is insufficient,” he said.

Diana Costaras said lawyers considering a volenti defence needed to carefully consider if the risk of injury was obvious to the plaintiff, rather than just acknowledged as a possibility.

“The court must consider what a reasonable person thought was obvious, but that reasonable person must be imbued with attributes of the plaintiff,” she said. “The plaintiff’s own knowledge and experience as to what was known subjectively and observed in the circumstances of the incident are also relevant to the assessment of what a reasonable person in that position would know about the risk.”

She said a court would consider a plaintiff’s:

• knowledge;
• experience of the relevant area and conditions;
• age and life experience;
• level of experience in the sport; and
• what they were capable of hearing, reading, observing and interpreting in the situation.

It was also possible for a risk that was not obvious at the outset of a plaintiff’s activity to become “obvious” before the injury occurred.

“For example, in a case heard in the NSW District Court, an inexperienced rider fell from a horse on a trail ride, due to the saddle slipping,” she said.

“The judge held the risk of falling from the horse was ‘obvious’ but the risk of falling from the horse because of the saddle slipping was not.

“However, the judge also found that because the rider discerned during the ride the saddle had slipped, dismounted and then remounted without adjusting the saddle or drawing the difficulty to the attention of anyone, she had gained knowledge of what thereby became an obvious risk prior to the fall.”