A Risk by Any Other Name

A Risk by Any Other Name

Professor Jodi Gardner

Time and date: Thursday 10 August, 2023, 2-3pm (Brisbane Time)

Location: Law School Board Room (W353), Level 3, Forgan Smith Building, The University of Queensland, St Lucia
And via Zoom: https://uqz.zoom.us/j/83641191578

Abstract

The defence of volenti non fit injuria translates as “to a willing person, no injury can be done” and works as a complete defence to deny the claim in its entirety. While there are ongoing debates on the number and make-up of the different elements associated with volenti, it is grounded on notions that people should not accept risks of harm and then claim damages if that risk arises and they are harmed. Volenti has long caused confusion in the common law; it highlights a tension between the law’s desire to protect individuals who have been harmed (particularly from physical injury and death) whilst also respecting personal responsibility. It is often stated that unlike many other jurisdictions that have seen a reduction or removal of the role of volenti in tort law, Australia has seen an increased reliance on the defence (or its statutory equivalent) in an attempt to reduce successful claims and restore “personal responsibility” to parties. The role of volenti in Australia is complicated as there is an unclear relationship between the common law defence and the statutory provisions enacted as a result of the Ipp Report. A closer analysis of the case law shows that, while it appears at first blush that there is a higher acceptance of volenti in Australia, the courts have had the same concerns and hesitancy to deny claims on the basis of an implied assumption of responsibility as seen in other jurisdictions. As a result, this paper argues that volenti should be abolished and a clearer distinction developed between actions of defendants (relevant for establishing negligence) and that of plaintiffs (which should be considered under contributory negligence).

About the Speaker

Jodi Gardner was recently appointed the Brian Coote Professor of Law at Auckland Law School, having previously been a college lecturer in law and Fellow of St John’s College, University of Cambridge. She has also held the position of Senior Adjunct Researcher at the Centre for Banking & Finance Law at the National University of Singapore and lecturer at Corpus Christi College, University of Oxford, where she completed her D.Phil in Contract Law and Consumer Protection. Her research interests are primarily focused on the interaction between private law and social policy, focusing in particular on the limitations of doctrinal law in responding to the challenges posed by poverty and inequality. Her research has covered topics including inequality in contract law, high-cost credit agreements, the impact of austerity measures, the effect of technological developments on equality and financial exclusion, and concurrent liability in tort and contract. She is the author of The Future of High-Cost Credit: Regulating Payday Lending (Hart Publishing, 2022); The Law of Torts (Hart Publishing, 2021) (with S Green)and Debt and Austerity (Edward Elgar Publishing, 2020) (with M Gray and K Moser), as well as numerous articles in leading national and international legal journals.