A February 2025 high-court full bench-appeal judgement examined the legal principles underpinning the defence of voluntary assumption of risk. The case arose from an incident during a student protest at a university campus, where a security guard discharged his firearm, using non‐lethal ammunition in the form of rubber bullets and ceramic paint balls, and injured the appellant’s eye. The appellant contended that she had been shot inside a student residence and sought damages for the harm suffered. The respondents maintained that the shooting occurred during a violent protest and argued that by placing herself in an area of known danger, the appellant had voluntarily assumed the risk of injury.
At the heart of the defence is the longstanding maxim of voluntary assumption of risk (volenti non fit injuria), which holds that a person cannot recover damages for harm to which they have consented. The court explained that for the defence to succeed, it is necessary to establish that the plaintiff: (1) had actual knowledge of the risk, (2) appreciated its scope, and (3) either expressly or implicitly consented to it. The consent test is twofold: first, there must be an objective assessment of the inherent risks present in the circumstances; and second, it must be determined whether the plaintiff subjectively foresaw the particular risk that eventually materialised and led to the injury.
The judgment scrutinised the evidence presented by the appellant—who was the sole witness for her case. Her account was found to be inconsistent. Initially, she indicated that she was aware a protest was taking place on campus, yet she later disavowed this testimony, distancing herself from the tumult of the violent protest. The respondents argued that she was among the protestors or at least in their vicinity when the security guard, acting in self‐defence, discharged his firearm. The court found her evidence less credible than the version presented by the respondents, concluding that it was more probable she had knowingly exposed herself to a dangerous situation.
The judgment emphasised the importance of the evidentiary burden. While the overall onus remains with the plaintiff to prove her claim on a balance of probabilities, once the respondents established a prima facie case for their defence, the burden shifted to the plaintiff to rebut that case. Here, the inconsistencies in her testimony, along with the lack of corroborative evidence from other potential witnesses, led the court to determine that she had implicitly consented to the risk by choosing to remain amid a volatile protest where the risk was foreseeable.
The defence of voluntary assumption of risk is grounded in the principle that one cannot claim compensation for injuries that result from one’s own decision to expose oneself to known dangers. Once established prima facie, it is for plaintiffs to present clear, consistent, and credible evidence if they wish to overcome the presumption that they were aware of and accepted the inherent risks of the situation.