Introduction

• defendant (D) can raise defence of consent or voluntary assumption of risk (volenti non fit injuria)
• absolute defence: if successful claimant (C) cannot recover damages for D's breach of duty

Claimant's knowledge of the risk

• D must establish C had full knowledge of nature & extent of the risk, insufficient for C merely knew risk exists
• subjective test to determine whether C fully understood risk

  Morris v Murray [1991] 2 QB 6

  Facts:

  • plaintiff (P) severely injured in aircraft accident & pilot was killed
  • P had been drinking with pilot prior to flight

  Issue:

  • had P appreciated the risk?

  Held:

  • Court of Appeal: subjective test P sober enough to be capable of understanding risk of flying with drunk pilot

Claimant's consent

• D must prove C freely & voluntarily consented to taking the risk of injury, knowledge of risk (sciens is not volens) insufficient
• must be no fear or duress, so relationship between parties considered
• consent can be expressed: orally or in writing or implied by conduct
• unusual for consent implied: difficult to establish C consented to risk of harm & accepted risk of D's negligence

Intoxicated drivers

• statutory guidance on consent if C accepted lift with intoxicated driver

  Road Traffic Act 1988

  • s.149 replaces Road Traffic Act 1978 s.148(3)
  • if insurance cover for passenger was compulsory, D unable to rely upon consent
  • applies to express agreements between driver & passenger (notice stating passenger travel at own risk) & implied agreements
• however, contributory negligence likely to succeed

  Pitts v Hunt [1990] 3 All ER 344

  Facts:

  • P severely injured as passenger in motorbike accident
  • P knew driver was drunk & driving without licence or insurance

  Issue:

  • could consent be used as a defence?

  Held:

  • P implied agreement to risk by travelling as passenger but consent unavailable (due to statute)
  • court found there was contributory negligence on part of P
  • Beldam LJ: .. it is no longer open to the driver of a motor vehicle to say that the fact of his passenger travelling in a vehicle in circumstances in which for one reason or another it could be said that he had willingly accepted a risk of negligence on the driver's part relieves him of liability for such negligence...

Rescuers

• consent unlikely to succeed against C injured when acting as rescuer, for policy reasons: rescuers encouraged
• rescuer acts under legal, moral or social duty & therefore, not freely consented to risk of harm in emergency situation created by D's negligence

  Haynes v Harwood [1935] 1 KB 146

  Facts:

  • P, a policemen, was injured when he decided to chase after D's horse, which was loose in a crowd

  Issue:

  • could consent be used as a defence?

  Held:

  • defence of consent unsuccessful: reasonably foreseeable person would intervene & injury may occur as result
  • Greer LJ: .. it would be absurd to say that if a man deliberately incurs a risk he is entitled to less protection than if he acts on a sudden impulse...

  Cutler v United Dairies [1933] 2 KB 297

  Facts:

  • P was injured trying to calm D's horse, which had bolted into a field

  Issue:

  • could consent be used as a defence?

  Held:

  • consent defencesuccessful: P did not need to intervene as no immediate danger, so P not acting under any duty to rescue & willingly consented to risk of injury

  Baker v TE Hopkins [1959] 1 WLR 966

  Facts:

  • a doctor was killed on entering a well in attempt to rescue D's workers

  Issue:

  • could consent be used as a defence?

  Held:

  • consent defence failed: doctor went into clearly dangerous situtaion but conduct did not amount to consent

Workers

• defence of consent rarely succeeds in cases between employer & employee
• developed over time, earlier cases showing courts were more willing to accept defence

  Woodley v Metropolitan District Railway Co (1877) 2 ExD 384

  Facts:

  • P injured when working in a dangerous position for D

  Issue:

  • could consent be used by the employer as a defence?

  Held:

  • consent defence accepted: P voluntarily undertook role, knowing the danger

  Bowater v Borough of Rowley Regis [1944] KB 476

  Facts:

  • P injured when riding an unruly for D, his employer
  • P initially refused, but eventually agreed

  Issue:

  • could consent be used by the employer as a defence?

  Held:

  • consent defence unsuccessful
  • Scott LJ: .. A man cannot be said to be truly willing unless he is in a position to choose freely, and freedom of choice predicates, not only full knowledge of the circumstances on which the exercise of choice is conditioned, so that he may be able to choose wisely, but the absence from his mind of any feeling of constraint so that nothing shall interfere with the freedom of his will...

  Corr v IBC Vehicles [2008] UKHL 13

  Facts:

  • employee injured at work, due to D's negligence
  • as result P suffered severe depression & committed suicide

  Issue:

  • could consent be used by the employer as a defence?

  Held:

  • House of Lords: employee's suicide following negligence by employer did not constitute consent
  • severe depression which led to suicide was foreseeable consequence of D's breach
• similarly, if C is suing employer for breach of statutory duty, defence of consent unlikely to succeed on policy grounds

Sports

• participant or organiser of sports event may be liable in Negligence, to competitors or spectators

  Smoldon v Whitworth [1997] PIQR 133

  Facts:

  • P broke his neck after scrum collapsed during rugby match refereed by D
  • unusually high number of collapsed scrums in the game

  Issue:

  • could the defence of consent be used?

  Held:

  • consent defence failed: P consented to ordinary risks of game but not to D's negligent failure to apply rules intended to protect players from injury
  • Bingham LCJ: .. Full account must be taken of the factual context in which a referee exercises his functions, and he could not be properly held liable for errors of judgment, oversights or lapses of which any referee might be guilty in the context of a fast-moving and vigorous contest. The threshold of liability is a high one...