Consent

Question 1

When does the defence of consent apply?

Answer 1

The defence of consent is applicable in cases where the claimant has consented to the risk(s) involved and cannot, therefore, complain of the consequential damage.

Question 2

In order to succeed in this defence the defendant must show that the claimant:

Answer 2

· Had capacity to give valid consent to the risks

· Had full knowledge of the nature and extent of the risks

· Agreed to the risk of injury

· Agreed voluntarily

Question 3

If successful..

Answer 3

consent acts as a complete defence.

Question 4

The claimant must possess the mental capacity to consent- authority

Answer 4

Reeves v Commissioner of Police for the Metropolis

A prisoner committed suicide in a police station. It was alleged that the police were responsible for the suicide. The police were aware that he was a suicide risk. Having confirmed that the police owed a duty of care to the prisoner to prevent him from taking his own life, the House of Lords stated that the defendants could not use an argument of consent in relation to the deceased’s action as this was the very action that they were required by their duty of care to prevent. The claimant did not have the requisite capacity to consent to the risk associated with suicide.

Question 5

The claimant must have full knowledge of the nature and extent of the risk that materialised. General knowledge will not suffice.

Answer 5

This is subjective ie the question is whether the particular claimant knew.

It is not a question of whether the reasonable claimant would have known. For example, in Morris v Murray the claimant accepted a lift with a drunken pilot. The claimant was also drunk and this had to be taken account of by the court in determining whether he appreciated the danger involved. The court held that the claimant was not so drunk as to be incapable of understanding the nature and extent of the risk, and he willingly embarked on the flight knowing the defendant was drunk and likely to be negligent.

In Stermer v Lawson the defendant negligently lent the claimant a motorbike without sufficient instructions: the claimant was inexperienced and suffered an injury riding it. The defendant could not establish that the claimant consented to the risk because the claimant was unaware of the dangers of riding the motorbike.