I. Can an occupier avoid liability by relying on voluntary assumption of risk (volenti non fit injuria)?
Volenti non fit injuria is a complete defence that absolves an occupier of liability for risks a visitor has freely and voluntarily accepted as his own.
Section 3(5) of the Occupiers Liability Ordinance (Cap. 314) preserves this defence, but it is narrow and applies only where the visitor freely and willingly accepted the very risk that caused the injury, with full knowledge of its nature and extent.
Volenti may potentially arise where, for example, the injured person:
- was clearly told of a particular danger and nonetheless expressly agreed to proceed;
- entered an area after being specifically warned of the precise risk and having a genuine choice not to enter;
- took part in an activity with obvious and inherent risks, fully understanding and accepting those risks; or
- deliberately chose to encounter a known hazard for his own purposes.
Even in such cases, the court will examine carefully whether there was true and informed acceptance of the risk.
This defence is not made out just because the visitor knew the activity was generally risky. The occupier usually has to show real agreement to run the specific risk, and the courts apply the defence cautiously, especially where the visitor had no real choice or where the risk arose from the occupier’s negligence rather than from the activity itself.
So, a person may accept the normal risks of a sport or an obvious hazard created by his own conduct, but he does not usually accept the risk of negligent safety arrangements on the premises. Even where this defence fails, the same facts may still support a finding of contributory negligence.
