Defences Flashcards
What are the three main defences?
Consent (volenti non fit injura), contributory negligence and illegality
The defence of consent is applicable when?
Where the claimant has consented to the risk involved and cannot, therefore, complain of the consequential damage
In order to succeed the defence of consent what must the defendant show?
That the claimant:
A) had capacity to give valid consent to the risks
B) Had full knowledge of the nature and extent of the risks
C) Agreed to the risk of injury
D) Agreed voluntarily
What does the claimant get if the defence of consent is successful
The claimant gets no damages
Consent is a complete defence
What is capacity to give valid consent to the risks
Defendant must prove that the claimant had mental capacity to consent to the risk
Unless the claimant is a young child etc
Explain agreed to the risks of injury
The third requirement for consent
The claimant agreed to run the risk of injury due to the defendants negligence
This agreement can be express or implied
Knowledge of the risk alone is not the same as consenting
Explain agreed voluntarily
The fourth requirement for consent
The defence cannot succeed unless the claimant acted voluntarily, eg. The claimant decided to subject themselves to the risk free of any constraint
When can voluntarily agreeing to risk be difficult to succeed
Where the claimant is an employee (smith v Charles baker & sons)
Rescue cases (Baker v T.E. Hopkins & sons ltd)
Pages 44 & 45
When can con
