Conclusion

The distinction of “volenti non fit injuria” and the “doctrine of assumption
of risk” in this jurisdiction is more apparent than real. In fact, one learned writer
opined that even though these are theoretically distinct, it is impossible to treat
them differently.1 For example, in the State of Texas, the doctrine is limited to
cases where there is a contractual or master-servant relationship. Where this
relationship is lacking, the proper term is “volenti non fit injuria”.2 However, the
effect of preclusion is basically the same regardless of the name invoked.3
Therefore, to our mind, trying to delineate the two is more academic than
practical. It yields no productive results if at the end of the day, the practical
application and effect is the same.

This doctrine dictates that “to which a person assents is not esteemed in
law as injury”. It is classically applied as a defense in tort cases. However, there
are instances when it is used as a means to advance a claim. In fact, it can be
used as a means to defeat the defense of the defendant.

This holds particularly true when the defense of the defendant is fortuitous
events sourced from Article 11744 Here, the doctrine is notably detrimental to
the defendant. When the Court declares that there is an assumption of risk on
the part of the defendant, he can be considered negligent despite the presence of
a fortuitous event.5 This ratiocination is amply discussed in our juxtaposition of
the doctrine with the law on obligations and contracts.

Hence, there is a perceived ambiguity on its legal application especially its

invocation or discussion by the Supreme Court. However, in our analysis, we
come up to the conclusion that its application is solely dependent to this
question: WHO ASSUMES THE RISK?

If it is the plaintiff, then it is used as a defense. If it is the defendant, then

it is used to advance a claim.

However, to say that one has assumed the risk, there must be knowledge
of the risk, the understanding of its nature and the free and voluntary choice to
incur it. Assumption of risk has two kinds: express or implied. In other
jurisdictions, the kind of assumption bears a great deal of difference. There are
jurisdictions which abolishes express assumption of risk when a comparative
negligence statute is adopted. Despite this abolition, implied assumption of risk
is said to be continuously acceptable as a defense. In our jurisdiction, there is
really not much of a discussion as to the kind of assumption and its legal import.
In examining the cases, the Court usually explains the doctrine generally without
distinguishing its kind.

In retrospect, the doctrine was first mentioned and used in the 1916 case
of CEREZO versus ANTLANTIC GULF & PACIFIC COMPANY. Here, it was held
by the court that there may be assumption of risk if the plaintiff entered into a
contractual relation with the defendant. It is declared as an available defense
when the there is an employment relationship. Yet, applicability of the doctrine
evolves to be applicable in diverse areas of operation. It is used in transportation
and contracts of carriage, business operations, sports, banking and negotiable

1
5 Labatt's Master and Servant, sec. 1647a
2
Joe Anderson, 5 St. Mary's L.J. 678 (1973-1974) The Defense of Assumption of Risk under Comparative
Negligence
3
Id.
4 Aquino, Torts and Damages. Pg 223(2005)
5
CO versus CA, G.R. No. 124922, June 22, 1998
instruments law and strict liability torts of manufactures/consumer act to name
a few. In fact, in the ultimate analysis, the continuing applicability of the doctrine
transgresses to a wide array of situations which may or may not include pre-
existing contractual relations.

On the other hand, the incorporation of its application in the Philippines

is also limited by doctrinal pronouncements by our Supreme Court. So far, the
doctrine is held to be inapplicable when a person seeks to rescue his endangered
property, if the life or property of another is in peril, when an emergency exists
(ILOCOS NORTE ELECTRIC CO. versus COURT OF APPEALS). Further, Tamayo
v. Gsell tells us that the doctrine is unavailing when there is an absence of
warning as an obligation of the employer to a minor servant whose work is
beyond his comprehension. In Nikko Hotel Manila Garden v. Reyes, when the
cause of action of the plaintiff is predicated on the principle of abuse of rights,
the defense of the Doctrine of Assumption of Risk must fail.

So far, these limitations can be gleaned in Philippine case law. However,

equitable objections to the doctrine can also be seen in foreign jurisdictions. We
have amply discussed under our Chapter on Limitations the ratio on rescue
cases. In probing UK Jurisprudence, it can be gleaned that the doctrine cannot
apply when a voluntary act also constitutes legal and moral duty to protect life
and property of another. Also, in the words of Professor Goodhart: “the American
rule is that the doctrine of the assumption of risk does not apply where the
plaintiff has, under a exigency caused by the defendant’s wrongful misconduct,
consciously and deliberately faced a risk, even of death, to rescue another from
imminent danger or personal injury or death, whether the person endangered is
one whom he owes a duty of protection, as a member of his family, or is a mere
stranger to whom he owes no such special duty.”6
Also in the United Kingdom, LANE versus HOLLOWAY7 dictates that no
consent can be said to have legalized an unlawful act. Hence, volenti non fit
injuria was not applied here and the plaintiff was entitled to full
compensation for the injury despite the consent to engage in an unlawful act
with the defendant.

There are also instances when despite the assumption of risk, when a
person has breached a positive duty imposed by law, then he cannot avoid
liability.8

In sum, the doctrine of assumption of risk or volenti non fit injuria was
more jurisprudential than statutory. Its perpetuation operates in jurisprudence
and perhaps this is one of the manifestations of the mixture of common law and
civil law leanings of the Philippines; a testament of the influences of our legal
system.

Pronouncement of more Philippine cases which discusses and clarifies the

metes and bounds of the doctrine is anticipated with enthusiasm. With the
diversity in circumstances it is used and the heterogeneity and conflicting legal
import of the same doctrine in different jurisdictions, curiosity emerges as to
what particular school of thought would be followed by the Supreme Court.

6
Goodhart, A. L. “Rescue and Voluntary Assumption of Risk.” The Cambridge Law Journal, vol. 5, no. 2, 1934, pp.
192–203. JSTOR, www.jstor.org/stable/4502732.
7 Lane v Holloway [1967] 3 WLR 1003 Court of Appeal
8
The Law of Torts: A Concise Treatise on the Civil Liability at Common Law and Under Modern Statutes for
Actionable Wrongs to Person and Property; Second Edition; Francis Marion Burdick, Harvard University, pg. 80