Written By: William Keele and Keanin Parish, Student-at-Law
Did Hall bring it on himself?
On a Friday evening in July 1986, two men – Hall and Hebert – drove to a house party in a souped-up Pontiac Firebird. At 2 a.m. on Saturday morning, the festivities were drawing to an end, and both gentlemen were, as it was put, “quite and equally, drunk.” Nevertheless, Hall and Hebert had places to go. Hebert took the driver’s seat, and Hall took the passenger’s, and off they went up the street: a narrow, uphill, gravel road. Unfortunately, it was halfway up this road that the key fell out of the Pontiac’s ignition, which caused the car to stall.
Now, Hall and Hebert pushed the car around so that it was facing downhill. The plan was to ‘roll-start’ the car. Having turned it around, Hall asked Hebert if he could have a shot at driving, to which Hebert agreed. And down the hill they went. But as fate would have it, Hall lost control of the car – The Pontiac veered off the road, dropped 30 feet into a ditch, and landed on its roof. Somewhat miraculously, the two men walked away from the scene, though it was later found that the accident caused Hall to injure his head. Finally, the twist: although Hall requested to drive, he sued Hebert for letting him.
These are essentially the facts in the matter of Hall v Hebert, 1993 2 SCR 159, heard before the Supreme Court of Canada. Having read it, you might be asking yourself: didn’t Hall bring this on himself?
When can the volenti defence be used?
And so we are brought to the concept of volenti non-fit injuria: a Latin term which means “no wrong can be done to a person who consents to the injury.” In the law, it operates to exonerate the defendant from liability for negligence. It should be noted that the modern volenti defence can only be applied in limited circumstances. Such circumstances may include certain recreational activities, like sports. For example, in Matharu v Nam, a case involving someone who was struck by a golf ball while playing on a golf course, the court was required to determine:
- Whether a person entering the golf course to engage in play accepts the risks of being hit by a ball; and
- If yes, does that person also accept the risks that result from a failure by the occupier to take care that, in all the circumstances, a person entering the golf course for the purpose of play will be reasonably safe?
This test shares a logical basis with the idea that “no wrong is done to one who consents.” In Turanec v Ross, 21 BCLR 198, the Court held that, in the context of sports, one who takes part in a sport accepts the dangers that inhere in it so far as they are obvious – meaning foreseeable – and necessary for the accomplishment of that sport. In Levita v Crew, 2015 ONSC 5316, the plaintiff suffered significant injuries when he was checked into the boards while playing recreational hockey. The plaintiff brought an action against the defendant, but the court dismissed it on the basis of volenti non-fit injuria. By agreeing to play hockey and accept its risks, the plaintiff gave implied consent to risk of injury.
Can the volenti defence always be used? Are there exceptions to this rule?
Can the volenti defence always be used? In short, the answer is no. Take, for example, Mr. Hall and Mr. Hebert. As it turns out, Hall may not have brought it upon himself after all. Although the defence of volenti was not technically at issue in this case, you might apply the case Dube v Labar 1986 1 SCR 649 which states that volenti is only available if it can be established that the plaintiff knew of a certain risk of harm, and bargained away his right to sue for injuries as a result of any negligence on the defendant’s part. In Hall v Hebert, Hall would have had to knowingly accept the risks associated with Hebert letting him drive the car and explicitly or impliedly give up the right to sue if injury occurred as a result of that. As such, the defence in question would probably not have been successful. Why is this? Well, as Justice McLauchlin said, it is not clear that in a contract, one party can knowingly accept these risks. This may be especially true when you consider that – like Hall and Hebert – drunk people engaged in criminal, reckless, or illegal activity generally do not impose legal agreements on each other with the thought of potential lawsuits that may result from their activities. The volenti defence is a difficult one to argue successfully and is only used in exceptional circumstances.
If not volenti, what about contributory negligence?
A more common legal defence is that of contributory negligence, which is available when it is proved that the claimant’s negligence contributed to their damages. Contributory negligence is different than volenti because it is not a full defence. Instead, a contributory negligence defence is for when both the plaintiff and the defendant have done something wrong. The question in these circumstances focuses on the appropriate apportionment of liability – in other words: each party is liable, but how liable?
An example of contributory negligence is found in Matkin v Hogg, 2015 BCSC 560. In this case, the plaintiff Ms. Matkin was riding a bicycle at night when she collided with the defendant, Mr. Hogg, who was operating his vehicle. Ms. Matikin’s bicycle was not equipped with a headlight, and she was not wearing any reflective clothing. The judge found that Ms. Matkin’s conduct was careless, and perhaps even reckless. If she had had a bicycle headlight or reflective clothing, she would have been seen by the defendant and the accident would not have occurred. On the other hand, the judge also found that Mr. Hogg must bear some blame. Had he conducted a shoulder-check, or illuminated his left turn signal, it is also true that the collision would not have occurred. Ultimately, the judge decided that 35% of the fault was the defendant Mr. Hogg, and 65% was the plaintiff, Ms. Watkin. As you can see in this case, the defence of contributory negligence is different than the defence of volenti because it is only a partial defence, not a complete one.
To finish, volenti non-fit injuria is a legal concept that means that no wrong can be done to a person who consents to the injury. It is a complete defence, which means that if volenti is established the defendant is not at fault at all. However, it is extremely limited in its scope. On the other hand, contributory negligence is available when the plaintiff’s negligence contributed to their injuries. Unlike volenti, it is a partial defence, which means that the fault is apportioned between plaintiff and defendant.