From Negligence to Risk Management: A Comparative Policy-based Critique of the Assumption of Risk Doctrine

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.