Defences Flashcards
Latin for voluntary assumption of risk
volenti non fit injuria
What is the defence of volenti
where C consents to risk of harm then suffers harm when risk materialises, he is barred from a claim
(Mere knowledge is not enough)
(NO NEED to prove consent to injury, just that he consents to RISK)
Wooldridge v Summer
horse photographer case
- sort of an opposition to the defence?
- doesn’t look at C’s state of mind
- looks at D’s perceptions not whether C consents (what D ought to know or does know C is aware of/assumed)
ABOUT THE STANDARD OF CARE (D didn’t go beyond what a reasonable person in these circumstances ought to have done)
When does the Defence Apply?
Dann v Hamilton
(Case where men slowly get drunk on a driver including driver)
TWO main situations:
1. Where D created an obvious dangerous situation which C voluntarily chooses to go into
- if C impliedly gives D permission to act a certain way
- mere knowledge is not enough
- awareness is not enough
- HAS TO BE PERMISSION and ACCEPTANCE
ICI v Shatwell
Case with long wires and shot-firers
- volenti defence satisfied
- had training and knew about the risk, so when they didn’t use long wire they were deemed to have impliedly ACCEPTED carelessness
Morris v Murray
(drunk friends on plane flight)
- volenti defence satisfied
- distinguished from Dann v Hamilton because getting on a plane is much more dangerous and extreme and it was less of a gradual drunkeness more a drunken escapade heavily fraught with dangerous activity
- also a bit problematic that if C were more drunk D may not be able to use volenti defence
- seems like an objective test though because look at what C’s conduct shows he accepted
Corr v IBC Vehicles
Acceptance of risk must be truly voluntary
suicide was not, done because of depression meaning he couldn’t weigh things up
Reeves v Metropolitan Police Commisioner
Cannot use volenti defence if D had a special duty that would conflict
- here a measured thought-out suicide isn’t volenti because D has a duty to prevent C harming himself
- looking at nature of duty again
Contributory Negligence pre-1945
Courts had to be really inventive to stop slight CN barring a claim completely
= used “last chance of avoiding damage” test (Dennis v Mann)
= used “constructive last chance” test even (British Colmbia Electric Railway v Loach)
Law Reform (Contributory Negligence) Act 1945
CN not a complete defence, courts can no apportion damages to reflect C’s fault/contribution to own damage
Jones v Livox Quarries
OBJECTIVE TEST FOR CN
- CN is whether C failed to take care that a reasonable, prudent person would take for their own safety
Froom v Butcher
OBJECTIVE test is not based on majority
- what C would do is what REASONABLE person would do
- even though most don’t wear seatbelt, its about the reasonable person (who would wear a safety harness if its available)
Smith v Finch
Same principle as Froom v Butcher - CN is based on what a reasonable person would do
- not tied down by majority
- even though most don’t wear helmets, Courts construct that a reasonable person would
Yachuk v Oliver Blais
Children cannot be expected to exercise any care for their own safety
- No CN can be found against children that age
Gough v Thorn
NO CN because girl was 13.5yr-old
Denning LJ - said young child can never be guilty of CN but older one could be (depends now whether you would say they were to blame for not taking precautions)
Salmon LJ - took a very precise approach of comparing C to a ‘reasonable 13.5 year old girl’
- reached same conclusion but very specific and seems unsensible
