Abstract
The assumption of risk doctrine has historically served as a cornerstone in limiting tort liability, especially in cases where plaintiffs voluntarily exposed themselves to known risks or dangers. This doctrine is rooted in liberal principles of autonomy and individual responsibility, reflecting a moral intuition that one shouldn’t recover from harm knowingly accepted. However, the increasing complexity of social, commercial, and institutional relationships in modern societies has challenged the viability of the doctrine in its traditional form. This paper explores the evolution, structure, and challenges of the assumption of risk doctrine with a comparative focus on Chinese, the United States, and Australian tort law. Each jurisdiction represents a unique legal tradition and policy approach. The United States, with its deep common law heritage, continues to rely on doctrinal distinctions between express and implied assumption of risk. Australia, influenced by similar traditions, has transitioned toward statutory frameworks with strong policy overlays. China, under the civil law system, has undergone a rapid reform, codified the assumption of risk doctrine, but limited its application to certain activities. This paper will re-examine the concept of risk-taking from the perspective of comparative law.
References
Cao, Q. (2021). Study on the “voluntary risk-taking” clause in the Civil Code. Oriental Law, (04).
Carey v. Lake Macquarie City Council [2007] NSWCA 4.
Chen, L. (2025). Interpretation of the application of the “assumption of risk” norm in the Civil Code. Journal of Law Application, (01).
Civil Code, Article 1176.
Civil Liability Act 2002 (NSW) ss 5F, 5G, 5L.
Civil Liability Act 2002, s 5L.
Davies, M., & Malkin, I. (2023). Focus: Torts (10th ed.). Chatswood, Australia: LexisNexis Australia.
Dong, L., & Yang, J. (2022). The disintegration of the normative framework for voluntary risk-taking in the era of Civil Code and the supplementary measures for its defects. Journal of Law Application, (05).
Fleming, J., Jr. (1952). Assumption of risk. Yale Law Journal, 61(2), 144.
Hoffman v. Jones, 280 So. 2d 431 (Fla. 1973).
Lemann, A. B. (2019). Assumption of flood risk. Arizona State Law Journal, 51, 163.
Mullins, G. (2013). Voluntary assumption of risk. Precedent, 115, 25.
Patch v. Hillerich & Bradsby Co., 257 P.3d 383 (Wash. 2011).
Shen, H. (2023). Risk allocation and scope definition for self-induced risk-taking in cultural and sports activities. Chinese Journal of Law, 45(4).
Simons, K. W. (2002). Reflections on assumption of risk. UCLA Law Review, 50.
Smith v. Charles Baker & Sons [1891] AC 325 (HL).
Thomas v. Panco Mgmt. of Md., LLC, 31 A.3d 583 (Md. 2011).
Tunkl v. Regents of the Univ. of Cal., 60 Cal.2d 92 (1963).
Workers Compensation Act 1976, s 151O.
Zipusch v. LA Workout, Inc., 155 Cal.App.4th 1281 (2007).