White v Blackmore [1972] 2 QB 651

Key point

  • The volenti defence to tort is only applicable where the victim was aware of the full extent of risk

Facts

  • C’s husband died from injuries while watching jalopy (old cars) racing organised by D
  • The wheel of a car got entangled in a safety rope close to where C stood, and he was catapulted into the air
  • Notices stated that it was a condition of admission that the organisers were absolved from all liabilities from accidents “howsoever caused” to spectators

Issue

  • Was D liable under its common duty of care for the deceased’s death?

Held (Court of Appeal)

  • C’s claim failed as the words ‘howsoever caused’ on the warning notices had excluded Ds’ liability for accidents arising from their breach of duty of care under s2(1) OLA 1957
  • The defence of volenti non fit injuria did not apply since the deceased did not know of the full risk caused by Ds’ failure to take proper safety precautions

Buckley LJ

  • The doctrine of volenti non fit injuria affords a shield of defence to a party who would otherwise be liable in tort to an opponent who has by his conduct voluntarily encountered a risk which was fully known to him at the time: p. 668B

Commentary

  • D would be liable today as C would be a consumer under the Consumer Rights Act 2015, and under S65(1) CRA 2015, liability for personal injury or death cannot be excluded or restricted