VOLENTI NON FIT INJURIA. 203 



negligent, and merely doubtful if the pursuer has, the pur- 

 suer will be entitled to recover. The defence of joint 

 negligence must be as clearly established as the ground of 

 action requires to be.(«) 



164. Volenti non fit Injuria — It is also a good defence 

 "where fault or negligence is established, to prove that the 

 injured party voluntarily chose to run the risk. Wherever 

 one is not physically constrained, where he can, at his option, 

 do a thing or not, and he does it, this maxim applies.(6) It 

 differs from the plea of contributory negligence in respect of 

 its being a matter of voluntary acceptance of a known risk, 

 not mere carelessness in presence of danger, (c) Mere know- 

 ledge of the risk does not involve consent to it. " The ques- 

 tion in each case must be, not simply whether the plaintiff 

 knew of the risk, but whether the circumstances are such 

 as necessarily to lead to the conclusion that the whole risk 

 was voluntarily incurred by the plaintiff'. "(^0 1'^^® mere fact 

 that a workman undertakes, or continues, in a dangerous 

 employment, with full knowledge and understanding of the 

 damag^e, is not conclusive to show that he has undertaken 

 the risk so as to make the maxim, volenti non Jit injuria, 

 applicable in the case of injury. The question, whether 

 he has so undertaken the risk, is one of fact and not of law. 

 And this is so both at common law and in cases arising 

 under the Employers Liability Act, 1880.(e) "The ques- 

 tion which has most frequently to be considered, is not 

 whether ho voluntarily and rashly exposed himself to injury, 

 but whether he agreed that, if injury should befall him, the 

 risk was to be his and not his master's. "(/) Thus, a servant 

 was not allowed to recover damages against a railway com- 



(rt) Lord Neaves in M^Miu-tin v. Ilannay, 1S72, 10 M. 411. 

 (6) Member!/ v. G. W. Ihj. Co., 1889, L.K. 14 App. Ca. 179. 



(c) Chief-Justice Cockburn and Lord Justice Mellish in Woodlcy v. J/. D. Rij. 

 Co., 1877, L.R. 2 Ex. D. 384. 



(d) Justice Lindley in Yarmouth v. France, 1887, 19 Q.B.D. 647, 660. 



(e) Smith V. IJakcr [1891] A.C. 325. 

 (/) Lord Watson in Smith, cit. p. 355. 



