Our goal is to help people in the best way possible. this is a basic principle in every case and cause for success. contact us today for a free consultation.
Practice Areas
Newsletter
Sign up to our newsletter
Australia-wide · No win, no fee · Free case evaluation — speak to us today
DEFENCE HUB · LEGAL DOCTRINE
Voluntary assumption of risk — known in law by its Latin name, volenti non fit injuria — is a defence that professionals and their insurers raise to resist a negligence claim. If you have been told “you knew the risks” or “you signed the consent form,” you may have already had a version of this argument directed at you.
Understanding what this defence actually requires matters — because in professional negligence cases, the threshold is genuinely high, and it fails far more often than defendants suggest it will.
UNDERSTANDING THE DEFENCE
In plain terms: voluntary assumption of risk argues that a claimant knowingly and freely accepted the specific risk that caused their loss. If established, it can defeat a negligence claim entirely. But — and this is critical — knowing something could go wrong is not the same as accepting that it will be done negligently. Courts treat those as entirely different things.
The Latin maxim volenti non fit injuria translates to “to a willing person, no injury is done.” The defence is codified across Australian civil liability legislation — including the Civil Liability Act 2002 (NSW) s 5F, the Wrongs Act 1958 (VIC) s 54, the Civil Liability Act 2003 (QLD) s 13, the Civil Liability Act 2002 (WA) s 5F, and equivalent provisions in each other state and territory.
Raising this defence is not simply a matter of pointing to a signature on a form. To establish it, a defendant must satisfy three distinct elements — and all three must be satisfied simultaneously.
WHAT THE DEFENDANT MUST PROVE
Actual knowledge of the specific risk
Not a general sense that the profession involves risk. Not an awareness that things sometimes go wrong. The defendant must show the claimant understood — with real particularity — the nature of the risk that actually materialised. A signed acknowledgment that ‘all investments carry risk’ does not demonstrate knowledge of the specific risk of negligent advice.
Free and voluntary acceptance of that risk
This element is about genuine choice. Economic pressure, professional authority, a lack of realistic alternatives, and the power imbalance inherent in most professional relationships can all undermine any claim of true voluntariness. A patient told they need surgery with no clinically appropriate alternative cannot easily be said to have freely accepted any particular risk.
Acceptance of the legal risk of negligence — not just the physical or financial risk
This is the element most defendants struggle with. The High Court has made clear that consenting to a procedure, an investment strategy, or a legal approach is not the same as consenting to negligent execution of that thing. A patient who agrees to a procedure accepts the known risks of it performed properly — they do not accept the risk that it will be performed below the standard of care.
All three elements must be established simultaneously
In practice, defendants frequently satisfy one or two of these elements but fail on the third. That failure is fatal to the defence. Courts will not find voluntary assumption of risk where any one of the elements is missing.
PROFESSIONAL NEGLIGENCE CONTEXTS
Professionals routinely ask clients to sign engagement letters, consent forms, risk disclosures, and product disclosure statements. These documents serve legitimate purposes. But their existence does not automatically establish voluntary assumption of risk — not even close.
A patient who consents to surgery does not consent to negligent surgery. The High Court confirmed this in Rogers v Whitaker (1992) 175 CLR 479, which established that a doctor's duty to warn about material risks exists independently of — and is not extinguished by — a patient's agreement to proceed. In Chappel v Hart (1998) 195 CLR 232, the court addressed how negligent failure to advise in the right way and at the right time can still ground a claim even after disclosure. Signing a hospital consent form is not a waiver of the right to competent care.
A client who instructs a solicitor to run a difficult litigation strategy has not accepted the risk that their lawyer will miss a limitation period, fail to advise on adverse costs exposure, or misread the applicable law. Giving instructions is not absolution. The solicitor's duty of care runs alongside — and independently of — the client's directions.
A client who acknowledges that investments carry risk has not agreed to be placed in unsuitable products. Financial advisers are obligated under Chapter 7 of the Corporations Act 2001 (Cth) to provide appropriate advice tailored to the client's situation, risk profile, and objectives. A general risk disclosure does not discharge that obligation — and accepting it does not forfeit the client's right to competent advice.
The courts have been consistently reluctant to apply this defence broadly in professional relationships. The reason is the power imbalance: a client engaging a specialist does not have the expertise to independently assess the risks they are being asked to accept. That asymmetry matters, and Australian courts recognise it.
WHEN THE DEFENCE SUCCEEDS — AND WHEN IT DOESN'T
The defence can succeed — and it would not be accurate to suggest otherwise. Courts are more likely to accept it where:
These scenarios are narrow and genuinely fact-specific. The defence succeeding in a case like this is very different from a defendant pointing to a standard engagement letter and claiming the matter is settled.
Signing a form is not enough on its own
Courts have consistently held that a consent or engagement document does not establish volenti unless the claimant specifically understood they were accepting the risk of negligent conduct — not just the general risks of the service. Standard terms rarely clear that bar.
A professional cannot simply contract out of their duty of care
The Australian Consumer Law (Schedule 2 to the Competition and Consumer Act 2010 (Cth)) limits the extent to which professionals can use contractual terms to exclude liability for negligence. The duty of care exists independently of any engagement contract.
Where the claimant lacked the technical knowledge to appreciate the risk
A client engaged a specialist precisely because they could not assess the relevant risk themselves. Courts are slow to find that someone voluntarily accepted a risk they did not actually understand in the first place.
Where there was no real choice
In Naxakis v Western General Hospital (1999) 197 CLR 269, the court considered the boundaries of consent and risk in a medical negligence context. Compulsion — economic, medical, or practical — undermines genuine consent throughout Australian negligence law.
Where the risk that eventuated was different from the risk described
Even a signed acknowledgment of a specific risk will not protect a defendant if the harm was caused by a different failure — one the claimant was never told about.
TWO DIFFERENT DEFENCES — ONE CRITICAL DISTINCTION
These two defences are frequently confused, and the confusion can lead people to abandon claims they should pursue.
If it succeeds, your claim is defeated entirely. You receive nothing. This is exactly why defendants raise it — it is a high-reward argument for them if it lands.
If it applies, your compensation is reduced by a percentage reflecting your own contribution to the harm — but you can still recover. All Australian civil liability statutes provide for apportionment rather than a complete bar, except where contributory negligence approaches 100%.
They may argue volenti as a primary position and contributory negligence as a fallback. Even if they fail on the complete defence, they may still seek a reduction on the partial one. A finding of some contributory negligence does not mean your claim fails — it means your damages are assessed differently.
See our page on contributory negligence for a full explanation of how that defence works and when it applies.
In most Australian states, professional negligence claims must be commenced within three years of the date you became aware — or reasonably should have become aware — of the negligence. The exact limitation period varies by state and by the nature of the claim. Missing this deadline can permanently extinguish your right to claim.
If you are unsure whether your limitation period is still open — or whether a defence like voluntary assumption of risk could affect your claim — contact our team for a free assessment as soon as possible. The evaluation costs nothing and carries no obligation.
YOUR NEXT STEP
Do not accept an informal assertion of this defence at face value. It is raised routinely — sometimes as a genuine legal position, sometimes as a deterrent designed to discourage you from pursuing the matter further.
The defence requires specific evidence: what you were told, in what terms, at what point, and whether you had any genuine choice. That analysis requires careful review of the documentation — consent forms, engagement letters, correspondence, clinical or file notes — and the circumstances under which each was signed.
If a defendant or their insurer has told you that you assumed the risk, the right response is to have that position properly assessed by a specialist professional negligence lawyer — not to treat it as final. The defence may have no realistic prospect of success on your facts. Many people never find that out because they walk away before getting a proper evaluation.
FREQUENTLY ASKED QUESTIONS
No. Signing a consent or risk disclosure form does not automatically establish voluntary assumption of risk. What matters is whether you specifically understood and accepted the risk of negligent conduct — not just the general risks of the procedure or service. Standard forms rarely satisfy this requirement, and courts look beyond the document to the circumstances surrounding it.
No. A defendant cannot establish that you voluntarily accepted a risk you were never told about. The absence of any specific warning is strong evidence against the defence succeeding. In fact, failing to warn a client or patient about material risks may itself constitute the breach of duty that grounds your claim.
No — these are separate defences with different consequences. Voluntary assumption of risk is a complete defence that eliminates your claim if established. Contributory negligence is a partial defence that reduces your damages but does not extinguish your right to recover. Defendants often run both defences simultaneously, but they require different evidence and produce different outcomes.
No. A general risk warning does not establish voluntary assumption of risk. The defendant would need to show you specifically accepted the risk of negligent advice — not merely the ordinary market risk that any investor accepts. Those are legally distinct risks. Financial advisers carry independent obligations under the Corporations Act 2001 (Cth) that a risk disclosure document does not discharge.
Voluntary assumption of risk does not work in degrees — courts either find it is established or they do not. What the defendant may argue alongside it is contributory negligence, which can reduce your damages by a proportionate amount. Even a significant contributory negligence finding does not eliminate your entitlement to recover — it adjusts the amount. A claim that succeeds at reduced damages is still a successful claim.
Legal information — not legal advice. The content on this page is intended for general educational purposes only. It does not constitute legal advice and should not be relied upon as such. The law on voluntary assumption of risk is fact-specific and varies by state. You should seek independent legal advice about your particular situation. Fair Go Australia connects Australians with specialist professional negligence lawyers on a no-win, no-fee basis.
Related pages
Our goal is to help people in the best way possible. this is a basic principle in every case and cause for success. contact us today for a free consultation.
Sign up to our newsletter