2) Voluntary Assumption of Risk (Volenti Non Fit Injuria)

The defence of voluntary assumption of risk arises where a plaintiff has indicated that she consented (volenti non fit injuria) [Note 158: No injury can be done to a willing person.] to the risk of harm generated by the defendant's negligence. In the early part of the twentieth century, the courts interpreted the defence broadly and merely exposing oneself to a known and wrongful risk was often sufficient to establish a willing assumption of that risk. [Note 159: Fleming, above note 18 at 333.] This pro-defendant interpretation yielded gradually to the increasing judicial emphasis on the compensatory role of negligence law, to the desire to maintain some deterrent effect on the defendant, and to the popularity of the apportionment regime of the contributory negligence legislation. The current position is that the defence is limited in scope and difficult to establish.

The modern test of voluntary assumption of risk was developed by the Supreme Court in a single genre of cases. They dealt with drunk drivers whose negligence injured their willing passengers. [Note 160: Car & General Insurance Corp. v. Seymour, [1956] S.C.R. 322 (no consent); Miller v. Decker, [1957] S.C.R. 624 (consent); Stein v. Lehnert, [1963] S.C.R. 38 (no consent); Eid v. Dumas, [1969] S.C.R. 668 (no consent).] The plaintiff passengers were clearly guilty of contributory negligence in accepting a ride with a driver whom they knew to be intoxicated. The issue was whether or not this amounted to a voluntary assumption of risk. It was the Court's view that it was only in extreme circumstances that the plaintiff should be denied a remedy. In most situations it was preferable, from a policy point of view, that the loss be apportioned between the defendant and the plaintiff. This would achieve some degree of deterrence on both parties and secure for the plaintiff some degree of compensation from a compulsorily insured defendant. The use of the defence of voluntary assumption of risk in these cases was not, therefore, an attractive option. It would free the defendant from all responsibility and allocate the loss totally to the plaintiff. Consequently, the modern test of voluntary assumption of risk was formulated in narrow terms.

The defendant must prove an express or implied agreement between the parties whereby the plaintiff has consented to accept both the physical and the legal risk of injury from the defendant's negligence. The physical risk is the danger of being injured in fact. Proof that the plaintiff has consented to the physical risk is often not difficult to establish. The passenger of a drunk driver, for example, knowingly places herself in a position of danger and implicitly assumes the chance of being injured by the driver's negligence. The plaintiff must also, however, agree to accept the legal risk of injury, which requires an agreement to abandon her right to sue the defendant in negligence. This is very difficult to prove. The difficulty is compounded both by the artificiality of the notion of an agreement about legal rights in these situations and by the fact that it is not uncommon for both the driver and the passenger to be drunk when the alleged agreement was entered into.

That this stringent test has proved highly effective in marginalizing the defence was underlined in the most recent of the Supreme Court's drunk driver-willing passenger cases, Dubé v. Labar. [Note 161: [1986] 1 S.C.R. 649.] Both the plaintiff and the defendant were involved in a joint venture of heavy drinking and driving. At the time of the accident, both were very intoxicated. The jury decision that the plaintiff had voluntarily assumed the risk of the defendant's bad driving which caused the accident was challenged on the ground that erroneous directions had been given to the jury by the presiding judge. The Court confirmed the test of voluntary assumption of risk that had been established in its earlier decisions. It stressed that the defence is inapplicable in the great majority of drunk driver-willing passenger cases, and, more generally, that it is rare for a plaintiff to consent genuinely to the risk of the defendant's negligence. Nonetheless, the Court was ultimately not willing to interfere with a jury decision, which was reached following appropriate instructions, and, given the particular circumstances of the case, was not manifestly unreasonable.

There is a diminishing residue of extreme cases where the courts continue to apply the defence against the passengers of drunk drivers. A frequent characteristic of these cases is the joint planning and participation of both the plaintiff and the defendant in an evening of heavy drinking and driving or the active encouragement of the plaintiff in the defendant's excessive use of alcohol or other wrongful conduct. [Note 162: The demise of the defence of consent is also evidenced by the Supreme Court decision in Hall v. Hebert, [1993] 2 S.C.R. 159 [Hall], a case of joint participation in an evening of heavy drinking and driving. Damages were reduced by 50 percent for contributory negligence.] In some of these cases, the necessary agreement can be found when the litigants, at a time of sobriety, plan a course of reckless drunken conduct. At that point they are at least in a position to understand the degree of risk that they are about to incur and might, more plausibly, be releasing each other from all adverse legal consequences of the venture. In the vast majority of cases, however, contributory negligence is the rule.

Although the modern test of voluntary assumption of risk was developed in a single genre of cases, it is applicable in all negligence cases. It was, for example, considered by the Supreme Court in Crocker v. Sundance Northwest Resorts Ltd. [Note 163: Above note 90.] The Court refused to find a voluntary assumption of risk on the part of a grossly intoxicated participant in a tube race down a mogulled ski hill who ignored advice from the defendant to withdraw from the race. Wilson J. expressed doubt that the plaintiff, given his degree of intoxication, could even be seen as appreciating and accepting the physical risk of injury. Proof of an agreement to accept the legal risk was, on the facts, well-nigh impos- sible. The plaintiff was found 25 percent contributorily negligent.

The defence of voluntary assumption of risk does have greater viability in respect of express agreements to consent to the defendant's negligence. The most common form of express consent is a written waiver or release of liability. Waivers are used frequently in commercial and voluntary sporting and recreational events and activities. The validity of these documents is controlled primarily by contract principles. A waiver, for example, is normally not enforceable unless reasonable notice of its restrictive terms has been given to the plaintiff. Any misrepresentation of the terms of that waiver may render it unenforceable. A waiver that is prima facie enforceable is subject to the contra proferentem rule, which requires that the waiver be given the narrowest possible interpretation against the interests of the defendant. The rules of privity of contract are also pertinent to waivers. A strict application of privity rules restricts the operation of the waiver to the contracting parties. Recent cases, however, point to a relaxation of privity rules and, in certain circumstances, the negligent employees of the contracting party may be protected by an appropriately worded waiver. [Note 164: See, for example, London Drugs Ltd. v. Kuehne & Nagel International Ltd., [1992] 3 S.C.R. 299.]

The approach of the Supreme Court to waivers has been uneven. In Dyck v. Manitoba Snowmobile Assn. Inc. [Note 165: [1985] 1 S.C.R. 589 [Dyck].] the Court interpreted a signed waiver as protecting both the Snowmobile Association and a volunteer whose negligence caused the plaintiff snowmobiler to crash his machine at the end of a race organized by the association. In Crocker v. Sundance Northwest Resorts Ltd. [Note 166: Above note 90.] the Court refused to enforce a signed waiver because the plaintiff did not read it and did not understand that it was anything more than an entry form to the race. The Dyck case was distinguished on the ground that the plaintiff, in that case, had a better understanding of the nature and purpose of the waiver. It is, however, doubtful that the difference in the plaintiffs' degree of comprehension of the waiver was sufficient to justify such different legal results.

The use of the concept of an express or implied agreement to resolve the consent issue has created some incoherence and inequity in the law. The courts, on the one hand, will not find an implied agreement unless the plaintiff was fully informed of the risk and had a complete willingness to abandon his right to protective care. On the other hand, voluntary assumption of risk can be established with much greater ease by the use of a standard form signed waiver. Reasonable notice of its restrictive terms must be given but that does not ensure that the plaintiff had either a good understanding of the risk or an understanding of the true nature of the document. This leads to the kind of unpredictability and ambivalence found in the Dyck and Crocker decisions.