Volenti non fit injuria: a defence that can be won, yet rarely

The Latin phrase volenti non fit injuria sounds like it belongs on a law school exam, and for good reason, it does. As translated, it means “to a willing person, no injury is done.” In Canadian personal injury law, it works as a complete defence to a negligence claim. Get it right, and a defendant walks away owing nothing. However, the catch is getting it right is genuinely difficult, and courts have actually made it harder.

What does volenti non fit injuria mean?

Volenti non fit injuria means that when a person knew of the danger of a certain activity, yet chooses to do it anyway, that same person cannot sue anyone if they become injured because of it. This is why voluntarily assumption of risk is a related concept of the volenti defence.

Not all consent is created equal. That is the starting point for understanding what volenti non fit injuria actually requires in a Canadian courtroom.

How the courts require in volenti non fit injuria

The Supreme Court of Canada (SCC) has been clear: a plaintiff who simply knows they might get hurt is not taken to have consented to anything in the legal sense. What the defence requires is a second, much harder step: that the plaintiff also agreed to give up their right to sue if the defendant’s negligence caused that injury.

In Hall v. Hebert, [1993] 2 SCR 159, the SCC stated the test plainly. Both parties must have agreed to participate regardless of the risk of injury and to give up their right to sue if injury resulted. The SCC said that “[t]he consent goes to the legal as opposed to the physical risk of harm.”

This distinction matters in personal injury cases, since the following terms differ when it comes to the defence of volenti non fit injuria:

• consent to physical risk: it means knowing you might get hurt
• consent to legal risk: it means agreeing you will not sue if the defendant’s negligence hurts you

The kind of consent that matters in volenti

As such, only the second kind of consent counts in volenti non fit injuria, i.e., the consent to legal risk. The doctrine applies, as the SCC confirmed in Hall under the following conditions:

• only “in limited circumstances,” and
• only where “it can truly be said that there is an understanding on the part of both parties that the defendant assumed no responsibility to take care for the safety of the plaintiff and the plaintiff did not expect him or her to do so”

That is a high bar, and deliberately so. Canadian courts have narrowed the doctrine over time precisely because a complete bar to recovery is a blunt instrument in a legal system that otherwise allows for apportionment of fault.

Check out our article on “Personal injuries proceedings act: Limits, notices, and traps” to learn about the factors that lawyers and litigants should not miss in these cases.

What does a defendant need to prove in a volenti defence?

As laid out by the SCC in Dube v. Labar, [1986] 1 SCR 649, two things must both be present when proving the defence of volenti non fit injuria:

• the plaintiff must have known of a specific risk of harm, and
• the plaintiff must have bargained away their right to sue for any resulting negligence

It means that awareness of the risk alone is not enough, and without that second element, it does not get a defendant across the line.

The British Columbia Court of Appeal reinforced this in Joe v. Paradis, 2008 BCCA 57. The court held that volenti cannot be invoked “unless there is evidence that the parties put their minds to the question of legal liability and expressly or tacitly made an agreement to waive liability that could be supported on basic contract law principles.”

What “tacit agreement” looks like

Courts accept that the agreement to waive legal rights does not need to be written down or spoken aloud. But since tacit agreement is still an agreement, the court in Joe said that a jury should not be permitted to use volenti “as a subterfuge to assign all responsibility for the accident” to the plaintiff when “the theoretical basis of the doctrine, an implied agreement to waive legal liability, may be unsupported by the evidence.”

For defendants invoking volenti non fit injuria, this means the record must show that:

• the plaintiff had full knowledge of the specific risk involved
• the plaintiff had the capacity to consent (e.g., not intoxicated, no duress)
• the plaintiff had a fair opportunity to understand what they were agreeing to
• the scope of the agreement clearly covered the activity and the specific defendants

How all these work out is seen in Waldick v. Malcolm, [1991] 2 SCR 456. Here, the SCC said that s. 4(1) of Ontario’s Occupiers’ Liability Act was never intended to lower the bar to mere knowledge of a risk. The exception for “risks willingly assumed,” the court said, “will be few and narrow,” and only arises where the plaintiff has genuinely bargained away the right to sue.

In the volenti defence, it can be said that there is no shortcut, and no formula can guarantee the defendant’s success.

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How is volenti non fit injuria different from contributory negligence?

This is where personal injury lawyers on both sides need to be precise, because volenti non fit injuria and contributory negligence produce very different outcomes:

• volenti non fit injuria: a complete defence; if it succeeds, the plaintiff gets nothing, and the defendant is fully exonerated and provincial apportionment legislation
• contributory negligence: is a partial defence; it only reduces what the plaintiff recovers, but the defendant still pays something

For contributory negligence specifically, courts will also look at how much each party’s conduct contributed to the harm, and divide liability accordingly.

Why volenti vs. contributory negligence matters

The court flagged the risk of confusion between these two defences in Joe v. Paradis, where it said that “[v]oluntary acceptance of the physical risk without acceptance of the legal risk is a contributory negligence issue and not volenti.”

If a plaintiff therefore took a known risk, but never agreed to waive their legal rights, a defendant cannot use that risk-taking to shut the claim down entirely. However, a defendant can use it to reduce their exposure, but that is a different argument.

The strategic consequence for defence counsel is significant. Because volenti so rarely succeeds, the stronger practice is to run contributory negligence as the primary argument and volenti as an alternative only where the evidence genuinely supports it.

Conflating the two, or even leaning on volenti when only contributory negligence is supportable, risks having neither argument accepted.

When have Canadian courts upheld the volenti defence?

Again, the honest answer is that courts rarely upheld the volenti defence, and even it does, it only happens under specific conditions.

The SCC’s decision in Crocker v. Sundance Northwest Resorts Ltd., [1988] 1 SCR 1186, is the most-cited illustration of the volenti defence failing. Here, a ski resort permitted a visibly intoxicated participant to enter a dangerous inner-tube race. The court rejected the volenti argument, finding that the injured person had not accepted the legal risk and that the resort’s own negligence was clear. It further held that an entry form and general references to “assumed risk” were not enough.

Dyck v. Manitoba Snowmobile Association Inc., [1985] 1 SCR 589, shows the other side of the coin. A properly worded, targeted release, which was clearly explained and delivered to a volunteer race official, succeeded in limiting liability. The document specifically covered the activity, the defendants, and the class of persons involved.

What separates success from failure in a volenti case

A pattern emerges when looking at the cases where the defence of volenti non fit injuria has held:

• the plaintiff was an adult with full capacity and no indication of duress or intoxication
• the risk communication — whether a sign, a waiver, or conduct — was specific, legible, and actually brought to the plaintiff’s attention
• the scope of the consent clearly matched the activity that caused the injury to the plaintiff
• the defendant was not independently negligent in a way that fell outside what was consented to

In Levita v. Alan Crew et al., 2015 ONSC 5316, the court dismissed a recreational hockey player’s claim against both his fellow player and the league. The claim against the player failed because the court found his conduct, although it was aggressive, fell within the assumed risks of the game and did not amount to intentional or reckless injury.

Against the league, a signed waiver that explicitly listed collisions and physical contact as covered risks was upheld as a complete defence. The court noted, as an alternative finding, that volenti would also have barred the claim: Levita had played in the league for more than 10 seasons, was aware of the style of play at the top division level, and had assumed both the physical and legal risks involved.

More recently, in Miller v. Cox, 2024 BCCA 3, the court upheld a finding of liability against a recreational soccer player whose slide tackle was found to be dangerous, reckless, and outside the accepted rules of play — even though slide tackles are permitted under FIFA rules.

The court confirmed that there is no authority for the proposition that a play permitted by the rules of the game can never give rise to negligence, regardless of how dangerously it is executed. Playing within the rules, in other words, is not a defence in itself.

Volenti non fit injuria: consenting to the risk, and consenting to lose

Volenti non fit injuria asks a plaintiff to have done something quite specific: not just to have taken a known risk, but to have knowingly walked away from their legal right to compensation if that risk came true. Canadian courts take that requirement seriously, and they have consistently refused to accept physical awareness of danger as a substitute for genuine legal waiver. The defence can be won. It just rarely is.

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