CONCENT/ ASSUMPTION OF RISK

A plaintiff who is aware of a risk, and still puts himself in the position where
the risk might eventuate, cannot recover damages if he suffers harm. This is called
a voluntary assumption of risk, or volenti non fit injuria or volens for short (where
there is consent, there is no injury). It is a complete defence, which means that if
a voluntary assumption of risk is proved, a plaintiff will recover nothing. There can
only be a voluntary assumption of risk if:
1. Knowledge - the plaintiff had knowledge of the risk.
2. Voluntary action - the plaintiff voluntarily made the choice to undertake the
risk. A plaintiff who was constrained by circumstances from making a free
choice will not be regarded as acting voluntarily.
For Example: most people know that playing softball can be a hazardous activity.
Even though they don’t sign a waiver, in most cases, just picking up the bat and
ball to join in the game creates an assumption that the person participating
knows that there is a chance they may be injured.