Re: Risk mitigation (Was:Re: Mega-Tsunami..)

From: Russell Blackford (
Date: Sun Sep 09 2001 - 17:19:49 MDT

Mike quoted me quoting him

>> >If you choose to drive, or to walk beside a road, you are voluntarily
>> >assuming the risk that you could be in an accident with another car that
>> >is out of your control.

Then quoted me:

>> That's not the position in any legal system I know of. I'm not aware that
>> volenti non fit injuria has ever been accepted as a defence in motor
>> accident case--anywhere. We do *not* consent to negligent or reckless
>> driving by (other) motorists.

And replied at some length, including:
>I think you are misunderstanding my words. Acceptance of risk is not the
>same as acceptance of responsibility. We do have a concept here in NH
>called caveat emptor: "buyer beware".

Sure, this is a principle in all common law systems, though increasingly
eroded by legislation and case law.

>You engage in risky activity
>voluntarily, and cannot hold others responsible for your lack of due
>diligence, but you can hold them responsible for actions outside the

Actually, I agree with a lot of Mike's reply - I don't have time to dissect
it sentence by sentence. However, the original formulation I've quoted above
seemed to me a pretty extreme one, at least without all these

However, to say that driving in a car is analogous to smoking, which I
*thought* Mike was arguing, you'd have to have a stronger principle than
this. The difference is that when you walk beside the road or get in a
vehicle you *don't take responsibility* for the negligence or recklessness
of others. You don't "consent", as I put it. Sure, you can insure yourself
against it, but that doesn't make you responsible for it. For you may
acknowledge the risk, but I'd be disinclined to use Mike's word that you
"accept" it. This is underlined by the fact that many jurisdictions have
compulsory third-party insurance, whereas it is, to say the least, uncommon
for the state to require first-party insurance.

When you take up smoking (particularly if you do so as an adult), by
contrast, you damn well ought to take responsibility for the consequences of
your decision to do so.

Another contrast is with taking up a dangerous sport such as boxing. Here,
you actually do take responsibility for the consequences of someone else
deliberately trying to hurt you (whereas you're never responsible for the
action of someone else deliberately using their car as a weapon). What you
don't take responsibility for in a boxing match, however, is the consequence
of someone deliberately or negligently stepping outside the rules and giving
you a karate kick or something.

On that note, if I've lost the thread of this discussion - or if I've read
too much into it - and this analysis is inapposite, I'm man enough to be
told so and take my lumps. :)


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