Tort Law - Negligence

Defences

Voluntary Assumption of Risk

The voluntary assumption of risk is a complete defence. The elements of it are similar in are way to contributory negligence, but it is a more complete act and a more complete state of mind, in terms of the plaintiff exposing themselves to risk. The elements are:

  • The plaintiff had an actual and full appreciation of risk and,

  • The plaintiff voluntarily accepted it.

 

When a risk is obvious the plaintiff is assumed to have accepted it. In Scanlon v American Cigarette Company [1] the plaintiff had started smoking at the age of 15 and, smoking 20 cigarettes per day, contracted lung cancer. The defence was that the plaintiff knew or ought to have known the risk of smoking, and thereby accepted the risk. The court ruled that the defendant must establish that the plaintiff had actual knowledge of the facts giving rise to the risk and fully accepted it. This is as opposed to the situation where someone ought to have known. But it is not enough for the plaintiff to merely disown knowledge of the risk as knowledge can be inferred from their conduct and the circumstances.

Therefore when a safety warning or safety information is given to the plaintiff, it becomes much easier to argue voluntary assumption. The voluntariness of acceptance of a risk is a question of fact and is to be deduced from the circumstances. It ordinarily be a non-issue, except in cases of an employee carrying out work instructions, or a person under some sort of duress.

 

 

 

 

[1] Scanlon v American Cigarette Company (Overseas) Pty Ltd (No 3) [1987] VR 289.