Volenti non fit injuria in English Law

Question

An interesting situation had just happened to me and made me think about a potential line of defence in case of troubles.

From the beginning: my neighbour asked if I could let him jump from my balcony to his flat one's located below mine as he's lost his door keys. After ensuring that he knew it might be dangerous and was able to do it, I let him go down and fortunately nothing had happened to him but I started thinking about his potential fall and, shame to admit, how would I defend myself if someone would try to blame me for the accident.

My very first thought was the volenti non fit injuria rule. I was pleased to find that this rule is present in English law therefore that would be my first attempt to defend myself as this guy acted on his own will.

Questions:
1) Does this approach make any sense in UK?
2) Would it be different if the situation would happen in Scotland?
3) Does the face that I'm not British (I'm EU citizen) change anything here?

Answer 1

The type of claim that would be brought in such a case would be under the Occupiers’ Liability Act 1957. The volenti defence is spelled out in the 1957 Act at s2(5):

The common duty of care does not impose on an occupier any obligation to a visitor in respect of risks willingly accepted as his by the visitor (the question whether a risk was so accepted to be decided on the same principles as in other cases in which one person owes a duty of care to another).

There are evidential questions about how one would demonstrate it (it’d be your word against his), but the law is on your side here.

As for Scottish law, the same principles apply in delict, and there is a Scottish equivalent to the 1957 Act, the Occupiers’ Liability (Scotland) Act 1960, which has an equivalent provision as the 1957 Act, namely s2(3):

Nothing in the foregoing provisions of this Act shall be held to impose on an occupier any obligation to a person entering on his premises in respect of risks which that person has willingly accepted as his; and any question whether a risk was so accepted shall be decided on the same principles as in other cases in which one person owes to another a duty to show care.

One of the classic cases in the literature around volenti and occupiers’ liability, Titchener v British Railways Board [1983] 1 WLR 1427 started in Scotland as an action under the 1960 Act.

As for your citizenship, no, being an EU citizen rather than a UK citizen has no bearing at all on the question.