Online Reporter
Trust Maanda
Legal Position
WHERE a person consents to a risk, the law deems that person to have voluntarily assumed the risk.
The party who is sued for the injury done to a person who has consented to the risk of getting the injury can raise a defence of volenti non fit injuria which means: “To one who consents, no wrong is done.”
Consent is a complete defence in law.
If you knowingly and voluntarily accept a risk, you cannot later complain when that risk materialises.
The law says adults are free to take risks, and the courts will not rescue them from consequences they chose to face. It is a defence that the plaintiff voluntarily assumed risk.
For volenti to succeed as a defence, the defendant must prove three elements. The defendant must prove that the person claiming injury had knowledge of the risk.
The defendant must show that the plaintiff actually knew, or ought reasonably to have known, the nature and extent of the danger. This is not a vague awareness. You must understand the specific risk you are embracing.
A spectator at a cricket match knows that a ball may leave the field. He or she is deemed to have consented to that ordinary risk. He or she does not, however, consent to a spectator stand collapsing because of poor maintenance, because that is a different, hidden danger.
Knowledge of the risk alone is not enough. The injured party must have freely and voluntarily agreed to run the risk. There must be no coercion, duress, or necessity.
A boxer who steps into the ring consents to being hit. Consent is limited to the risks that are inherent in the activity. You consent to the normal dangers, not to negligence or recklessness that goes beyond them.
The courts do not allow a defendant to say “you consented to everything.” You consent to rugby tackles, not to an opponent breaking your leg with a bottle after the whistle.
Sport is where volenti is most visible.
Rugby, boxing, soccer, and martial arts all involve foreseeable physical contact. By participating, you consent to lawful tackles, punches, or falls that are part of the game. You do not consent to acts that are outside the rules or that are intentionally violent.
In medical treatment, when a patient gives informed consent to surgery, they accept the known risks of that procedure — infection, scarring, or anaesthetic complications.
If the surgeon follows proper procedure and the risk occurs, the defence of voluntary assumption of risk may bar a claim. But if the surgeon operates without consent, or makes a negligent error unrelated to the accepted risk, the defence fails.
You do not consent to someone’s negligence.
The courts are careful not to allow volenti to become a licence for wrongdoing. Several limits apply.
This defence is not successful where there is negligence beyond the risk. You cannot consent to another person’s negligence.
In ICI v Shatwell AC 656 two workers ignored safety rules and were injured by an explosion. The House of Lords held volenti applied because they knowingly took the exact risk they were warned about. But if the employer had supplied a defective fuse unknown to them, volenti would not apply. Minor children or persons of unsound mind cannot give valid consent. The defence will fail.
Another exception to the defence is the Illegality and Public Policy. You cannot consent to an illegal act. Consent to an unlawful boxing match outside regulations will not protect the organiser.
Exemption clauses often try to import volenti.
In Zimbabwe, the Consumer Protection Act and common law will strike down clauses that exclude liability for gross negligence or that are unconscionable. For businesses, waiver is not a shield against all claims. You must still take reasonable care. Your duty is to minimise risks within your control.
Volenti protects you only for risks the participant truly accepted.
When relying on defence of volenti, you must plead this defence precisely. You must prove actual knowledge, voluntariness, and scope. Do not overreach. Courts will reject it if it looks like an attempt to escape basic duties of care.
The defence of volenti is about responsibility and choice. The law respects a person’s right to say, “I will take that risk.” But it does not respect attempts to trap people into risks they never understood, or to excuse recklessness under the label of consent. In the words of the maxim: if you truly consent, no legal wrong is done to you. If you do not, the law will still hold wrongdoers accountable.
Trust Maanda is a legal practitioner and a partner at Maunga Maanda And Associates. He writes in his personal capacity. He can be contacted on +263772432646
