Volenti case must be raised in pleadings, Appeal Court rules

The application of the maxim volenti non fit injuria was discussed by the Sheriff Appeal Court in Raybould v T & N Gilmartin (Contractors) Ltd [2018] SAC (Civ) 31; 2019 SLT (Sh Ct) 1. The pursuer was injured when she fell while trying to cross excavation works directly outside the front door of her home. The works were being carried out by the defenders, who had been subcontracted by Fife Council to install new street lighting.

The pursuer argued breach of common law duty of care by the defenders, and specifically breach of the duty to take reasonable steps to provide safe access to residents' properties. In the exercise of that duty, the defenders ought to have provided footway bridging boards (as they had done post-accident). Following a proof, the sheriff granted decree of absolvitor. He referred to the volenti maxim as the key to the case. In his view, the pursuer had been aware of the risk of crossing the excavation and, by her actions, had accepted the consequences of doing so. There had been no need for her to cross the works as she could have entered her house by the back door. The pursuer appealed, arguing among other points that she had been given no notice of a volenti argument and the defenders had not raised this during the proof or in their submissions.

A volenti argument, the Sheriff Appeal Court observed, usually takes the form of a plea in law, but with simplified pleadings, if that defence was to be relied on, this should have appeared in answer 6. The sheriff had not been entitled to introduce volenti in his judgment. He had done so of his own accord without giving the parties an opportunity to address him on the applicability of the maxim. It had not been appropriate to decide the dispute on the basis of a legal maxim that had neither been supported by the evidence nor argued for, and of which no notice had been given.

In any event, for volenti to apply, the sheriff must first have accepted there had been a breach of duty of care on the part of the defenders, and it was not clear that he had done so. However, the Appeal Court considered that there had been a breach of the defenders' duty of care to the pursuer. Decree was granted in favour of the pursuer, with a deduction of 50% for contributory negligence.