Defences and Remedies

Question 1

What does volenti mean?

Answer 1

If a claimant has voluntarily undertaken the risk of harm then they can have no claim against the party who inflicted it

Question 2

3 elements of volenti

Answer 2

1. Consent must be given freely
2. Knowledge and understanding of the risks involved
3. Types of consent

Question 3

Consent must be freely given

Answer 3

For consent to operate as a defence, it must be given freely by the claimant

Question 4

Knowledge and understanding of the risks involved

Answer 4

The person consenting must also know about and understand the risks involved if it is to operate as a defence

Question 5

2 types of consent

Answer 5

• express

- implied

Question 6

Express consent

Answer 6

Person may give their consent in a number of ways, for example, agreeing verbally

Question 7

Implied consent

Answer 7

Consent may be implied or inferred through circumstances or conduct

Question 8

Claimant is aware of the risk, but did not consent to it case

Answer 8

Smith v Baker

Question 9

Does volenti work with employers and employees?

Answer 9

Courts won’t usually allow the defence of volenti in an employer/employee relationship

Question 10

Defendant employer case

Answer 10

ICI v Shatwell

Question 11

s149 of the Road Traffic Act 1988 means…

Answer 11

If there is a road accident and the passenger is injured, the defendant cannot plead volenti

Question 12

Road Traffic Act 1988 case

Answer 12

Morris v Murray

Question 13

Does volenti apply to rescuers?

Answer 13

Rare that volenti applies to rescuers

Question 14

Rescuers case

Answer 14

Haynes v Harwood

Question 15

Does volenti apply to sports?

Answer 15

If the injury was inflicted outside of the rules, volenti will not apply

Question 16

Sports case

Answer 16

Condon v Basi

Question 17

When is contributory negligence used?

Answer 17

When the claimant is partly to blame for the damage that they have sustained

Question 18

What happens if contributory negligence is found?

Answer 18

The effect is a reduction in the amount of damages paid back to the claimant

Question 19

Claimant was not wearing a seat belt case

Answer 19

Froom v Butcher

Question 20

What is the standard of care for contributory negligence?

Answer 20

A claimant is expected to meet the standard of a reasonable person engaged in that activity

Court makes allowances for children and elderly

Question 21

Standard of care case

Answer 21

Gough v Thorne

Question 22

Drunk drivers case

Answer 22

Owens v Brimmel

Question 23

CN - drunk drivers

Answer 23

If a passenger accepts a lift from a driver whom they know to be drunk, they may be found to have contributed

Question 24

CN - multiple defendants

Answer 24

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

Question 25

Multiple defendant’s case

Answer 25

Fitzgerald v Lane