defences

Question 1

Volenti non-fit injuria (voluntary assumption of risk/consent)

Answer 1

Volenti non-fit injuria (no wrong is done to one who consents)

A defendant will not be liable for injury to a claimant where the claimant freely consents to take the risk involved.

The defence is a complete defence; if the defendant successfully proves consent, then he will not be liable to the claimant for any damages.

Question 2

Contributory negligence

Answer 2

Stone v Taffe (1974)
- the claimant’s husband was killed when he catapulted himself down an unlit staircase in the defendant’s pub.
- The claimant’s wife and friend had made their way down safely before the deceased.
- It was held that damages should be reduced by 50% to take account of the lack of care taken by the deceased.

Question 3

Smith v Baker (1891)

Answer 3

– The claimant was drilling holes in a quarry and had complained about the danger of the defendant’s crane moving rocks above him. He was ordered to continue working and was injured when a stone fell on him. It was held that the claimant was aware of the danger but there was no evidence that he had voluntarily consented to the risk of injury. The defence of consent failed.

Question 4

defences in tort

Answer 4

• For consent to be a valid defence, the claimant must understand the risk involved and freely agree to the consequence of the risk.
• The agreement can be expressed or implied.
• The test is subjective, which means that the claimant himself must know of the risk and voluntarily accept it.
• If the claimant has no choice but to accept the risk, the defence will fail.