10.—: Leave and Licence: Volenti non fit iniuria.

Consent or acceptance of risk (leave and licence). Harm suffered by consent is, within limits to be mentioned, not a cause of civil action. The same is true where it is met with under conditions manifesting acceptance, on the part of the person suffering it, of the risk of that kind of harm. The maxim by which the rule is commonly brought to mind is “Volenti non fit iniuria.” “Leave and licence” is the current English phrase for the defence raised in this class of cases. On the one hand, however, volenti non fit iniuria is not universally true. On the other hand, neither the Latin nor the English formula provides in terms for the state of things in which there is not specific will or assent to suffer something which, if inflicted against the party’s will, would be a wrong, but only conduct showing that, for one reason or another, he is content to abide the chance of it.

Express licence. The case of express consent is comparatively rare in our books, except in the form of a licence to enter upon land. It is indeed in this last connexion that we most often hear of “leave and licence,” and the authorities mostly turn on questions of the kind and extent of permission to be inferred from particular language or acts.

Limits of consent. Force to the person is rendered lawful by consent in such matters as surgical operations. The fact is common enough; indeed authorities are silent or nearly so, because it is common and obvious. Taking out a man’s tooth without his consent would be an aggravated assault and battery. With consent it is lawfully done every day. In the case of a person under the age of discretion, the consent of that person’s parent or guardian is generally necessary and sufficient. But consent alone is not enough to justify what is on the face of it bodily harm. There must be some kind of just cause, as the cure or extirpation of disease in the case of surgery. Wilful hurt is not excused by consent or assent if it has no reasonable object. Thus if a man licenses another to beat him, not only does this not prevent the assault from being a punishable offence, but the better opinion is that it does not deprive the party beaten of his right of action. On this principle prize-fights and the like “are unlawful even when entered into by agreement and without anger or mutual ill-will”. “Whenever two persons go out to strike each other, and do so, each is guilty of an assault”. The reason is said to be that such acts are against the peace, or tend to breaches of the peace. But, inasmuch as even the slightest direct application of force, if not justified, was in the language of pleading vi et armis and contra pacem, something more than usual must be meant by this expression. The distinction seems to be that agreement will not justify the wilful causing or endeavouring to cause appreciable bodily harm for the mere pleasure of the parties or others. Boxing with properly padded gloves is lawful, because in the usual course of things harmless. Fighting with the bare fist is not. Football is a lawful pastime, though many kicks are given and taken in it; a kicking match is not. “As to playing at foils, I cannot say, nor was it ever said that I know of, that it is not lawful for a gentleman to learn the use of the small sword; and yet that cannot be learned without practising with foils”. Fencing, single-stick, or playing with blunt sabres in the accustomed manner, is lawful, because the players mean no hurt to one another, and take such order by the use of masks and pads that no hurt worth speaking of is likely. A duel with sharp swords after the manner of German students is not lawful, though there be no personal enmity between the men, and though the conditions be such as to exclude danger to life or limb. Here it cannot be said that “bodily harm was not the motive on either side”. It seems to be what is called a question of mixed law and fact whether a particular action or contest involves such intention to do real hurt that consent or assent will not justify it. Neglect of usual precautions in any pastime known to involve danger would be evidence of wrongful intention, but not conclusive evidence.

Reg. v. Coney. This question was incidentally considered by several of the judges in Reg. v. Coney, where the majority of the Court held that mere voluntary presence at an unlawful fight is not necessarily punishable as taking part in an assault, but there was no difference of opinion as to a prize-fight being unlawful, or all persons actually aiding and abetting therein being guilty of assault notwithstanding that the principals fight by mutual consent. The Court had not, of course, to decide anything as to civil liability, but some passages in the judgments are material. Cave J. said: “The true view is, I think, that a blow struck in anger, or which is likely or is intended to do corporal hurt, is an assault, but that a blow struck in sport, and not likely nor intended to cause bodily harm, is not an assault, and that, an assault being a breach of the peace and unlawful, the consent of the person struck is immaterial. If this view is correct a blow struck in a prize-fight is clearly an assault; but playing with single-sticks or wrestling do not involve an assault, nor does boxing with gloves in the ordinary way”. Stephen J. said: “When one person is indicted for inflicting personal injury upon another, the consent of the person who sustains the injury is no defence to the person who inflicts the injury, if the injury is of such a nature, or is inflicted under such circumstances, that its infliction is injurious to the public as well as to the person injured. . . . . In cases where life and limb are exposed to no serious danger in the common course of things, I think that consent is a defence to a charge of assault, even when considerable force is used, as for instance in cases of wrestling, singlestick, sparring with gloves, football, and the like; but in all cases the question whether consent does or does not take from the application of force to another its illegal character is a question of degree depending upon circumstances”. These opinions seem equally applicable to the rule of civil responsibility.

Licence gotten by fraud. A licence obtained by fraud is of no effect. This is too obvious on the general principles of the law to need dwelling upon.

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 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.

Relation of these cases to inevitable accident. Many cases of this kind seem to fall not less naturally under the exception of inevitable accident. But there is, 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, where it was held that one who trespassed in a wood, having notice that spring-guns 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”. 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. 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.

Knowledge of risk opposed to duty of warning. 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. 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. “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”.

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 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.

Cases between employers and their workmen: Smith v. Baker. The principle expressed by volenti non fit iniuria is different from that of contributory negligence, as it is in itself independent of the contract of service or any other contract. It does not follow that a man is negligent or imprudent because he chooses to encounter a risk which he knows and appreciates; but if he does voluntarily run the risk, he cannot complain afterwards. At the same time knowledge is not of itself conclusive. The 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”. A workman is 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. As between an employer and his own workmen, it is hardly possible to separate the question of knowledge and acceptance of a particular risk from the question whether it was a term in the contract of service (though it is seldom, if ever, an express term) that the workman should accept that risk. Since the Employers’ Liability Act has deprived the master, as we have already seen, of the defence of “common employment” in a considerable number of cases, the defence of volenti non fit iniuria has several times been resorted to, with the effect of raising complicated discussion on tolerably simple facts. By treating the maxim as if it were of literal authority (which no maxim is), and then construing it largely, something very like the old doctrine of “common employment” might have been indirectly restored. For some time there was appreciable danger of this result. But the tendency was effectually checked by the decision of the House of Lords in Smith v. Baker. Except where there is an obvious and necessary danger in the work itself, it must be a question of fact in every case whether there was an agreement or at any rate consent to take the risk. “Where a person undertakes to do work which is intrinsically dangerous, notwithstanding that reasonable care has been taken to render it as little dangerous as possible, he no doubt voluntarily subjects himself to the risks inevitably accompanying it, and cannot, if he suffers, be permitted to complain that a wrong has been done him, even though the cause from which he suffers might give to others a right of action:” as in the case of works unavoidably producing noxious fumes. But where “a risk to the employed, which may or may not result in injury, has been created or enhanced by the negligence of the employer,” there “the mere continuance in service, with knowledge of the risk,” does not “preclude the employed, if he suffer from such negligence, from recovering in respect of his employer’s breach of duty”. And it seems that (apart from contracts to take a class of risks) there must be consent to the particular act or operation which is hazardous, not a mere general assent inferred from knowledge that risk of a certain kind is possible.

Distinction where no negligence at all. 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. It seems that Thomas v. Quartermaine, though not so dealt with, was really a case of this latter kind.

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.

Distinction fromcases where negligence is ground of action. 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 that when a 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. “No one (at all events some years ago, before the admirable police regulations of later years) could have crossed London streets without knowing that there was a risk of being run over”. The actual risk to which a man crossing the street is exposed (apart from any carelessness on his own part) is that of pure misadventure, and also that of careless driving, the latter element being probably the greater. If he really took the whole risk, a driver would not be liable to him for running over him by negligence: which is absurd. Are we to say, then, that he takes on himself the one part of the risk and does not take the other? A reason thus artificially limited is no reason at all, but a mere fiction. It is simpler and better to say plainly that the driver’s duty is to use proper and reasonable care, and beyond that he is not answerable. The true view, we submit, is that the doctrine of voluntary exposure to risk has no application as between parties on an equal footing of right, of whom one does not go out of his way more than the other. A man is not bound at his peril to fly from a risk from which it is another’s duty to protect him, merely because the risk is known. Much the same principle has in late years been applied, and its limits discussed, in the special branch of the law which deals with contributory negligence. This we shall have to consider in its place.