COURT CASES on VOLENTI (ASSUMPTION of RISK)
Volenti Non Fit Injuria is a latin phrase which, translated literally, means “to one who is willing, no harm is done“. In the context of a personal injury claim, it can sometimes be used as a defence where someone engages in an event, and is accepting and aware of the risks inherent in that event, they then cannot later complain of, or seek compensation for, an injury suffered during that event. An example is willingly and knowingly getting into a car with a driver who is intoxicated. Recent case law seems to suggest that it is quite difficult to successfully argue the Volenti defence in the context of situations involving intoxicated drivers.
In Shariatmadari v. Ahmadi, the Plaintiff was seriously injured after a car she was traveling in struck a tree. The lawyer for ICBC attempted to raise the Volenti defence, however the judge refused to put this defence to the jury.
 The third party, Insurance Corporation of British Columbia (“ICBC”), who is defending this case on behalf of the deceased driver, wished to lead evidence of excessive drinking by the plaintiff, defendant, and mutual friends several nights a week for some time prior to the accident. ICBC also sought to lead evidence of the plaintiff occasionally driving following such evenings or letting the defendant drive her vehicle. They argued that this evidence, in conjunction with the fact that the plaintiff and defendant had a close personal relationship and were both driving impaired before the accident, will support a finding by the jury of a tacit agreement between the parties to assume any risk that might arise in relation to such driving – a finding which would support the defence of volenti non fit injuria.
 Counsel for the plaintiff offered to have the plaintiff testify on a voir dire to permit counsel for ICBC to argue the appropriateness of putting the volenti defence to the jury based on the actual evidence that could be elicited from the plaintiff. The third party was of the view, with which I agreed, that they could argue the appropriateness of putting the defence of volenti non fit injuria to the jury based on their “best case scenario”. I heard argument on that basis.
 Counsel for ICBC candidly acknowledged that in cases involving a plaintiff riding with an impaired driver, volenti is a difficult defence to prove in light of recent cases on the issue. In Hall v. Hebert,  2 S.C.R. 159 at 207, 101 D.L.R. (4th) 129, Cory J. in concurring reasons noted that the maxim volenti non fit injuria “stands for the proposition that no injury is done to one who consents.” He stated the following at 207-208:
In order for the doctrine of volenti to apply, there must be either an express or implied assumption of the risk of the activity which caused the damage. That is to say, both parties to the activity must have agreed that they would participate in it regardless of the risk of injury and give up their right to sue should injury occur as a result of the agreed upon activity. It must be observed that the consent goes to the legal as opposed to the physical risk of harm (see Lehnert v. Stein,  S.C.R. 38).
The volenti defence acts as a complete bar to recovery. Although it has not been the subject of legislation, it has been very severely limited in its application. Perhaps the judicial limitation was well merited in light of the harsh academic criticism of the defence. See Prosser, supra, at p. 454. Before it can operate as a defence, the plaintiff must not only consent to accept the risk of harm but also must bargain away his or her right to sue for injuries that may result from the dangerous activity. The doctrine will only be applied where it can truly be said that there is an understanding on the part of both parties that the defendant assumed no responsibility to take care for the safety of the plaintiff and the plaintiff did not expect him or her to do so. Clearly, the volenti defence will only be applicable in a narrow range of cases.
 In Joe v. Paradis, 2008 BCCA 57, 290 D.L.R. (4th) 556, the plaintiff had persuaded the defendant to drive him to a pub to obtain beer. Both parties were heavily intoxicated and the defendant drove off the road, injuring the plaintiff. The plaintiff’s action for damages was dismissed by a jury on the basis of the volenti defence. The issue before the British Columbia Court of Appeal was whether the defence of volenti non fit injuria should have been put to the jury. At para. 13, Mackenzie J.A. writing for the Court said:
 There is no evidence of any express agreement between Mr. Joe and Mr. Paradis to absolve the latter from legal liability for negligent driving. The first issue is whether there was evidence from which a properly instructed jury could find an implied agreement to that effect. The first and third issues are inter-related: if there was no evidence to support the defence, the jury verdict is unsupported by evidence and therefore perverse.
 Interjecting the volenti defence short circuits the process and invites the jury to use the defence as a subterfuge to assign all responsibility for the accident to Mr. Joe notwithstanding that the theoretical basis of the doctrine, an implied agreement to waive legal liability, may be unsupported by the evidence. Unless the courts are prepared to condone the manipulation of the volenti doctrine to avoid the comparative fault regime of the Negligence Act, volenti should not be invoked unless there is evidence that the parties put their minds to the question of legal liability and expressly or tacitly made an agreement to waive liability that could be supported on basic contract law principles.
 The weight of Supreme Court of Canada jurisprudence and the critical commentaries support restricting the doctrine to cases where an agreement can be supported by the evidence. This case was not one of them.
 The question left with the jury failed to clearly distinguish between the physical and legal risk of harm. The judge’s charge attempted to explain the distinction, but essentially in a vacuum as to evidence supporting acceptance of the legal risk of injury in contrast to the physical risk. Voluntary acceptance of the physical risk without acceptance of the legal risk is a contributory negligence issue and not volenti. [Emphasis added]
 In my view, even assuming the defendant’s best case scenario on the evidence elicited at trial, there is no evidence to support the plaintiff’s waiver of her legal right to sue for injuries, as distinct from evidence to support a willingness to assume the risk of injury itself. There is no evidence that the plaintiff and defendant turned their minds to the question of legal liability, and either expressly or tacitly made an agreement to waive liability that could be supported on basic contract law principles.
 In conclusion on this point, there is no evidence to support the defence of volenti; therefore that defence should not be put to the jury.