If someone had to sue the park for their injuries caused by an animal, could the park raise the defence of Volenti Non Fit Injuria? "To a willing person, injury is not done." In other words, it is the voluntary assumption of risk. This defence, if successful, is a full defence and will completely exonerate the defendant who succeeds in proving it. Therefore, someone who attempts to sue because he knowingly engaged in dangerous activities and was injured may not be able to recover damages under the defence that the person knew the risks involved and consented to it.
Volenti has two main elements that must be present in order for the Volenti defence to be accepted.
• The plaintiff must be fully aware of all the risks involved, including the nature and the extent of the risk.
• The plaintiff expressly (through his statement) or impliedly (through his action) consented to waive all claim for damages. This is the assumption of risk.
Thus, in order for the Lion Park to successfully use the defence of Volenti Non Fit Injuria, a person must have consented to the materialisation of a risk that was subjectively foreseen, appreciated and assumed by him, and which he has not revoked at any reasonable time.
It is for this reason that owners of such reserves require their patrons to sign waivers and indemnities before being allowed to drive into the enclosure, as these satisfy both terms of Volenti Non Fit Injuria. With this in mind, however, the Lion Park should still make every reasonable effort to ensure that the waiver, its meaning and its consequences are understood by the person signing it.
It is not easy for most defendants to prove both elements of Volenti, and therefore reliance on the provisions of the Apportionment of Damages Act usually constitutes a better defence. While the Volenti defence is based on an "all or nothing" principle, the Apportionment of Damages Act allows for fault to be attributed to the various parties, depending on the facts at hand. Thus, if a patron sticks his/her hand into a lion enclosure through a hole in the fence, any injury would be partly the fault of the patron and partly the fault of the park, for not ensuring that the fence was maintained properly.
The criterion that our courts use to apportion damages is "the reasonable man test", and then look at how far that person has deviated from the standard of care that applies to a reasonable man. In other words, would a reasonable man have appreciated the risks involved? Would a reasonable man know that by driving through a lion enclosure with his windows open or by putting his hand through the fence this would most likely make him lunch?
This might seem a silly question to most of us hardened bush-goers, but how obvious would it be to someone who has never seen a lion? What if you were (for example) from New York City, and had never ventured out of the concrete jungle until now, and your only knowledge of a lion is based on the Lion King, which portrays lions to love warthogs and meercats and doesn’t see them as lunch?
Similarly, the Lion Park would also have a duty of care to maintain the enclosures and to take reasonable measures to prevent people from coming in the way of harm. The duty of the Lion Park is much higher than that of the person coming to visit it, as the Lion Park would be assumed to have knowledge of the dangers in keeping wild animals, and that it should do everything possible to keep harm at bay.
