Defences and Remedies Flashcards
What does volenti mean?
If a claimant has voluntarily undertaken the risk of harm then they can have no claim against the party who inflicted it
3 elements of volenti
- Consent must be given freely
- Knowledge and understanding of the risks involved
- Types of consent
Consent must be freely given
For consent to operate as a defence, it must be given freely by the claimant
Knowledge and understanding of the risks involved
The person consenting must also know about and understand the risks involved if it is to operate as a defence
2 types of consent
- express
- implied
Express consent
Person may give their consent in a number of ways, for example, agreeing verbally
Implied consent
Consent may be implied or inferred through circumstances or conduct
Claimant is aware of the risk, but did not consent to it case
Smith v Baker
Does volenti work with employers and employees?
Courts won’t usually allow the defence of volenti in an employer/employee relationship
Defendant employer case
ICI v Shatwell
s149 of the Road Traffic Act 1988 means…
If there is a road accident and the passenger is injured, the defendant cannot plead volenti
Road Traffic Act 1988 case
Morris v Murray
Does volenti apply to rescuers?
Rare that volenti applies to rescuers
Rescuers case
Haynes v Harwood
Does volenti apply to sports?
If the injury was inflicted outside of the rules, volenti will not apply
Sports case
Condon v Basi
When is contributory negligence used?
When the claimant is partly to blame for the damage that they have sustained
What happens if contributory negligence is found?
The effect is a reduction in the amount of damages paid back to the claimant
Claimant was not wearing a seat belt case
Froom v Butcher
What is the standard of care for contributory negligence?
A claimant is expected to meet the standard of a reasonable person engaged in that activity
Court makes allowances for children and elderly
Standard of care case
Gough v Thorne
Drunk drivers case
Owens v Brimmel
CN - drunk drivers
If a passenger accepts a lift from a driver whom they know to be drunk, they may be found to have contributed
CN - multiple defendants
If the claimant and two or more defendants are all responsible for the claimant’s injuries, then the courts will apportion liability based on their degree of blameworthiness
Multiple defendant’s case
Fitzgerald v Lane
