'Volenti non fit Injuria' - A Key Defence
If you are an employer, regardless of the effectiveness of your risk management and health and safety strategies, it is important to have a basic working knowledge of the defences that may be available to you if you find yourself being sued on the grounds of a common law liability for an accident. This is one of the most common types of occupational health and safety claims from employees and, as such you should know how to defend yourself. There are two main defences in these cases: 'volenti non fit injuria' and contributory negligence. The latter is covered in an article elsewhere in this section.
Nature of the Defence
Although the Latin name may give the impression that this is a complex concept, in fact volenti non fit injuria is fairly simple to understand. Translated, the phrase means 'to one who is willing no harm is done'; this gives some clue as to the nature of the defence. Essentially, a defence of this type can be used in cases where the complainant may have been injured, contracted a disease or died as a result of the fact that they had not been following health and safety instructions.
In the first instance, it should be noted that, if successful, this defence will completely clear the employer of wrongdoing, and thus ensure that no damages will be paid in a compensation claim. As such, solicitors frequently investigate whether or not this defence is workable as a first port of call when employers contest their liability. Contributory negligence is used to mitigate liability; that is, it is a partial defence and thus any damages will be reduced depending on how successful the defence is. Even if a volenti non fit injuria defence is unworkable, contributory negligence may be worth investigating.
In order to be successful, a defence of this type must prove that the employer took on the risks inherent in the job voluntarily. This would require the employer to have given sufficient health and safety training and instruction, and the employee to have been supervised for a reasonable period of time. Furthermore, the employer must have offered instruction regarding specific risks that may have been involved in the job being done by the employee, for example through a permit to work system.
Volenti non fit injuria defences are notoriously difficult to maintain. Since the late twentieth century, there has been a generally presumed within the courts that, while employees may understand the risks involved in their jobs, basic economic necessity means that they are required to work and therefore do not assume these risks voluntarily. Furthermore, the fact that an employee may have been aware of risks does not mean that they were willing to risk injury.
There are, however, some exceptions to this. Primarily, volenti non fit injuria defences are more likely to succeed when the employee has failed to abide by a statutory responsibility, rather than a responsibility of policy laid out by their employer. In these cases, if the employer has operated within the bounds of their statutory responsibilities, the defence may be successful. Furthermore, the employer is more likely to be able to maintain this defence if the complainant was involved in a high risk occupation for which they were particularly highly paid. This means that economic necessity cannot be contested so easily.
If you are considering contesting an occupational health and safety claim, you will almost certainly require a solicitor. They will be able to advise you in more detail on a suitable defence.