Absolute Defences: Consent

[Flash Card 1 of 2]

• consent or voluntary assumption of risk (volenti non fit injuria) / if successful C cannot recover damages for D's breach

Claimant's knowledge of the risk

• D must establish: C full knowledge / nature & extent of risk / insufficient C merely knew risk exist
• drunk pilot / subjective test: P sober enough / defence successful (Morris v Murray [1991])

Claimant's consent

• D must prove: C freely & voluntarily consented / to taking risk of injury / no fear or duress
• consent can be: express: oral or written / implied: by conduct
• implied: difficult to establish C consented / risk of harm & accepted risk of D's negligence

Intoxicated drivers

• s.149 Road Traffic Act 1988: if insurance for passenger compulsory / D unable rely upon consent / applies: express agreements between driver & passenger (notice) / & implied agreements
• motorbike / consent failed / but contributory negligence (Pitts v Hunt [1990])

Sports

• participant or organiser / may be liable / to competitors or spectators
• referee / C consent ordinary risks of game / not D's negligent failure to apply rules intended protect players / D not liable .. errors of judgment, oversights or lapses... / consent failed (Smoldon v Whitworth [1997])

bits of law

Absolute Defences: Consent

[Flash Card 2 of 2]

Claimant's consent

Rescuers

• policy reasons: consent unlikely succeed rescuer / rescuer acts under legal moral or social duty / so not freely consented to risk / in emergency situation created by D's negligence
• policeman horse / consent failed / decision to intervene foreseeable (Haynes v Harwood [1935])
• horse in field / no immediate danger / consent successful (Cutler v United Dairies [1933] )
• doctor / P's action considered .. context of immediate and pressing emergency... / consent failed (Baker v Hopkins [1959])

Workers

• consent rarely succeeds between employer & employee / developed over time
• railway workman / consent succeeded (Woodley v Metropolitan Railway (1877))
• unruly horse / Scott LJ: .. absence from his mind of any feeling of constraint so that nothing shall interfere with the freedom of his will... / consent failed (Bowater v Borough of Rowley Regis [1944] )
• suicide / no consent: depression foreseeable consequence D's work injury (Corr v IBC Vehicles [2008])
• if statutory duty breached: consent likely to fail / policy grounds

bits of law