Consent Flashcards
Consent
Volenti non fit injuria.
A complete defence.
Required freely entered and ‘voluntary agreement by C, in full knowledge of the circumstances.
Elements of Consent:
Voluntary
Agreement must be voluntary and freely entered.
If C is not in position to exercise free choice, defence will not succeed.
This element commonly seen in relation to employment relationships, rescuers and suicide.
Elements of Consent:
Agreement
Express or implied
Implied: C demonstrates a willingness to accept legal risks and physical risks.
Smith v Charles Baker and Sons: Agreement
C sued employers for injuries sustained while in the course of employment, he was employed to hold the drill while others hit it. C was injured when a stone fell out of a crane and struck him on the head.
D raised volenti non fit injuria because C knew the danger and continued.
Held: C aware of danger, but did not consent to a lack of care, he is entitled to recover damages.
Elements of Consent:
Knowledge
C had knowledge of full nature and extent of risk they ran
Morris v Murray: Full nature and extent
Pilot and C drinking all day.
When they flew plane, the pilot was killed and C injured, who then brought a negligence action against his estate.
Held: Claim defeated by voluntary assumption of risk of flying with a drunk pilot by C.
Rescuer
A Rescuer is not regarded as having freely and voluntarily accepted risk
Haynes v Harwood: Rescuer not regarded as having freely and voluntarily accepted risk.
D negligently left his horses with vans attached unsecured on the street.
Children threw a stone and startled the horses, they ran down the street but C policeman prevented them from injuring a large amount of people.
C sustained injuries and sued for negligence.
Held: C’s claim succeeded because there was a failure to use reasonable care for safety of others by using highway, C being injured was a probable outcome, C consciously and deliberately faced a risk to rescue others and there was an exigency caused by D’s conduct so volenti non fit injuria isn’t applied.
Sporting Event / Games
A participant in sporting events/games is taken to consent to have given consent to risk of injury. They do not accept risks that happen outside rules
Condon v Basi: Participant in sport gives consent to injury
C suffered broken leg during tackle from D, both played in the Leamington local league.
Held: Standard of care varies with level of expertise. D in breach of DoC as tackle was reckless with standards of local league players. Participants do not accept risks that happen outside rules.
Consent and OL:
Section 2(5) of OLA 1957 and S1(6) OLA 1984:
Occupier owes no duty if risks are willingly accepted, no need for an agreement.
Titchener v British Railways Board: Risks willingly accepted
C injured while trespassing on a train line.
Held: C was fully aware of danger, must be taken to have consented to the risk.
