37—Injured persons presumed to be aware of obvious risks
(1) If, in an action
for damages for negligence, a defence of voluntary assumption of risk (
volenti non fit injuria ) is raised by the defendant and the risk is an
obvious risk, the plaintiff is taken to have been aware of the risk unless the
plaintiff proves, on the balance of probabilities, that he or she was not
actually aware of the risk.
(2) For the purposes
of this section, a person is aware of a risk if the person is aware of the
type or kind of risk, even if the person is not aware of the precise nature,
extent or manner of occurrence of the risk.
(3) However, in order
to establish a defence of voluntary assumption of risk, it is necessary to
establish that the risk was such that a reasonable person in the plaintiff's
position would have taken steps (which the plaintiff did not in fact take) to