28 December 2016


'The Volenti Defence under Australian and Canadian Law: A Comparative View' by Marel Katsivela in (2014) 8 Journal of Comparative Law comments
Assumption of risk constitutes a defence in negligence actions in Canada and in Australia. Important similarities but also differences underline the two common law defences. The present study presents and compares the two common law defences. It also comments on some provisions of the relatively recent tort law reform legislation in Australia and on how the legislation interacts with the Australian and the Canadian common law defences.
Katsivela states that the assumption of risk as a well-known defence in the area of torts
exists where the plaintiff freely and voluntarily, with full knowledge of the nature and extent of the risk he runs, agrees to incur it. The defence originates from the Latin maxim volenti non fit injuria (volenti). Under Roman law, it stated a principle of estoppel vis-à-vis Roman citizens who consented to being sold as slaves.   
Volenti reflects the individualism of early common law, drawing from the principle that ‘one is free to work out one’s own destiny.’ During the 19th century, this defence was very important for employers who were usually defendants in actions for injuries the employees had suffered at work. Due to volenti, employees were deemed to have accepted the risks of their employment. With the adoption of apportionment legislation in Canada and in Australia in the 20th century, the scope of assumption of risk became restricted. From that time onwards it is essential to distinguish between volenti and the victim’s contributory negligence. 
Torts—including the assumption of risk defence—remain largely defined by provincial/ state case law in the two countries. However, tort reform legislation adopted by Australian states in 2002-2003 has regulated volenti without repealing the common law defence. As we are going to see later, Canada has not adopted legislation similar to the Australian one. 
The object of the present study is to present volenti in Australia and in Canada and to comment on their similarities, their raison d’être as well as their differences and their possible effect or influence in advancing the law in the two countries. In this regard, we will review the common law defences in the two countries and examine some provisions of the Australian tort reform legislation. We will also focus on how the legislation interacts with the Australian and the Canadian common law defences. Our analysis will be limited to negligence actions rather than intentional torts since assumption of risk arises more often within the scope of the former. Although this defence has been invoked in a variety of negligence actions, we do not aim at examining all its fields of application but, rather, use case law that best illustrates its elements and aids in the presentation of the applicable principles and comparative analysis. 
In undertaking this task, we are conscious of the fact that we are examining rules present in two common law jurisdictions. Jurisdictions sharing the same legal tradition often share common legal reasoning and concepts. However, commonwealth countries (for example, Australia and Canada) have developed distinctive common law rules at the domestic level. Similarities but also differences are often noted when examining specific legal issues or concepts in two or more common law nations. The assumption of risk defence following Canadian and Australian law constitutes no exception. Important similarities but also differences will be observed regarding volenti in the two jurisdictions.  
In commenting on this defence from a comparative perspective, we align ourselves with the third category of comparative law scholars described by Pr. Mehren. These scholars do not reject or embrace convergence of local laws.  They believe that such convergence may or may not occur. Until or unless it takes place, however, they opine that it is the responsibility of comparative law to determine to what degree and the way in which convergence of local laws exists or may be occurring, and to provide the analytical tools that enable jurists from different legal cultures to achieve a shared understanding of their respective intents, positions or views. 
This is precisely the approach the author adopts. We do not know whether convergence of tort law principles will take place at the international level. We do not, however, exclude such a development. Until this occurs, we feel that it is our duty to examine (tort) concepts applicable in different countries in order to shed some light on the rules governing them and identify the degree of their convergence. This will allow jurists worldwide to achieve a better understanding of the laws in different jurisdictions. 
The following sections form the basis of our analysis: the first two sections focus on the presentation of volenti in Australia and in Canada respectively and the third section analyzes the applicable laws.