.
"Glanville Williams wrote that 'the defence must be restrictively construed.... In almost every negligence action of modern times where the defence of volens has been raised it has failed. This is because the cases in which a person truly consents to run the risk of another's negligence are altogether exceptional.'"
Six years later, in Hall v Hebert, Mr. Justice Cory wrote:
"Another mechanism aimed at limiting the scope of tort actions is the defence known by the maxim volenti non fit injuria. The maxim stands for the proposition that no injury is done to one who consents. The defence applies both to intentional and accidental harms....
"No matter how the maxim or principle is characterized, volenti non fit injuria .... constituted an absolute bar to recovery.... Yet it has, in recent years, been severely restricted in its application.
"In order for the doctrine of volenti to apply, there must be either an express or implied assumption of the risk of the activity which caused the damage... (B)oth parties to the activity must have agreed that they would participate in it regardless of the risk of injury and give up their right to sue should injury occur as a result of the agreed upon activity.