Defence of Consent Flashcards
What is the defence of consent also known as?
‘volenti non fit injuria’
What does ‘volenti non fit injuria’ translate to?
‘That to which a man consents cannot be considered an injury’.
Usually shortened to volenti or ‘consent’.
What must be shown for a defence of consent to succeed?
D must show that C:
· 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
What kind of defence is consent?
A complete defence
Case for C having mental capacity to consent
Reeves v Commissioner of Police for the Metropolis [2000]
What did Reeves v Commissioner of Police for the Metropolis [2000] show?
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.
Cases for C having full knowledge to nature and extent of risk?
Morris v Murray [1991]
Stermer v Lawson [1977]
What kind of test is the one for C having full knowledge?
Subjective - it is what C knew NOT what a reasonable person might have known
What happened in Stermer v Lawson [1977] ?
D negligently lent the C a motorbike without sufficient instructions: the claimant was inexperienced and suffered an injury riding it. D could not establish that the C consented to the risk because C was unaware of the dangers of riding the motorbike.
What happened in Morris v Murray [1991]?
C accepted a lift with a drunken pilot. C 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 C 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.
Cases for agreeing to a risk not amounting to agreeing to it?
Dann v Hamilton [1939]
Nettleship v Weston [1971]
Must agreement always be express agreement?
No, it may be implied from the facts of the case
like in Morris v Murray [1991]
Does knowledge of risk result in implied agreement to the risk?
No
What is the quote from Morris v Murray [1991] that states when there is implied agreement?
Where the activity was ‘like engaging in an intrinsically and obviously dangerous occupation, intermeddling with an unexploded bomb or walking on the edge of an unfenced cliff’ then that is going to make it much easier to argue that agreement is implied
Case for C agreeing to the risk voluntarily?
Bowater v Rowley Regis [1944]
Which case stressed that voluntary agreement must be additional to knowledge of risk?
Smith v Charles Bakes & sons [1891]
What did Smith v Charles Bakes & sons [1891] establish?
Employees who know of the risks of their jobs are not necessarily voluntarily running those risks, since they may have little real option if they wish to keep their job.
How do rescue cases come into voluntarily consenting to risk?
Agreement to the risk was not voluntary. He acted out of an impulsive desire to save life. It was not seemly to say that he had freely agreed to the risk created by the defendant’s negligence.
(Baker v T.E Hopkins & SOns Ltd [1959])
How can consent be limited?
By statute as well as common law precedent
Examples of statute limiting consent?
s149 Road Traffic Act
- Prevents consent as a defence for motorists facing claims from their passengers
s65(1) UCTA 1977
- Prevent traders dealing with consumers for limiting/excluding liability for death/personal injury via negligence
