Tort law (2022): Liability: Respondeat superior + Volenti non fit iniuria + Ex turpi causa non oritur actio (Part Two)

Trespassers.

The Occupiers' Liability Act 1984 (and in Scotland the Occupiers' Liability (Scotland) Act 1960) requires all owners of property to take reasonable steps to make their premises safe for anyone who enters them, even those who enter as trespassers, if they are aware of a risk on the premises. However, the doctrine of volenti has been applied to cases where a trespasser exposed themselves deliberately to risk:

Titchener v British Railways Board,

Ratcliff v McConnell, and

Tomlinson v Congleton Borough Council.

In the first case (decided before the Occupier's Liability Act was passed), a girl who had trespassed on the railway was hit by a train. The House of Lords ruled that the fencing around the railway was adequate, and the girl had voluntarily accepted the risk by breaking through it. In the second case, a student who had broken into a closed swimming-pool and injured himself by diving into the shallow end was similarly held responsible for his own injuries. The third case involved a man who dived into a shallow lake, despite the presence of "No Swimming" signs; the signs were held to be an adequate warning.

Drunk drivers.

The defense of volenti is now excluded by statute where a passenger was injured as a result of agreeing to take a lift from a drunk car driver. However, in a well-known case of Morris v Murray (Court of Appeal), volenti was held to apply to a drunk passenger, who accepted a lift from a drunk pilot. The pilot died in the resulting crash and the passenger who was injured, sued his estate. Although he drove the pilot to the airfield (which was closed at the time) and helped him start the engine and tune the radio, he argued that he did not freely and voluntarily consent to the risk involved in flying. The Court of Appeal held that there was consent: the passenger was not so drunk as to fail to realize the risks of taking a lift from a drunk pilot, and his actions leading up to the flight demonstrated that he voluntarily accepted those risks.

Rescuers.

For reasons of policy, the courts are reluctant to criticize the behavior of rescuers. A rescuer would not be considered volens if:

He was acting to rescue persons or property endangered by the defendant’s negligence;

He was acting under a compelling legal, social or moral duty; and

His conduct in all circumstances was reasonable and a natural consequence of the defendant’s negligence.