Defences - consent

Question 1

general rule

Answer 1

C must voluntarily agree to run the relevant risk - Bowater v Rowley Regist Corporation

C must have full knowledge of the relevant risks - Wooldridge v Sumner

Question 2

consent and road traffic act 1988

Answer 2

defence = excluded

Section 149(3) invalidates any agreement to restrict a driver’s liability to a passenger where the driver is required to be insured

drivers reqto buy at least third party liability insurance so there is a pool of funding to compensate passengers who are injured by carelessness of drivers

fact that a passenger has willingly accepted the risk of negligence does not negate liability on the part of the driver - voluntary agreement does not work

Question 3

Morris V Murray

Answer 3

C and D spent bulk of the day drinking, then decided to go for a flight on D’s aircraft, D consumed 17 measures of whisky
C injured in plain crash, D killed and C sued D’s estate
C was merry not blind drunk - emphasis on C’s personal resp
no equivalent of s. 149(3) of the road traffic act 1988 - defence of consent not excluded here

Question 4

employment context

Answer 4

Judges conscious many workers will run serious risk in an effort to hang onto their jobs

ICI v Shatwell - two workers (shot-firers) circumvented safety procedures and employer disciplined those who ignored them, deliberate disobedience - both men injured
C seeks to sue employer - relying on doctrine of vicarious liability - C trying to fix employer with liability
Lord Reid distinguishes between careless collaboration and deliberate disobedience - injured man should recover some compensation in the former case but not in the latter case
Claim failed

Question 5

consent and sporting activities

Answer 5

Consent rarely defence where D’s conduct goes beyond the normal rules of the game - Gieghorn V Oldham - golfer hitting spectator with club while demonstrating stroke

Contact sports (e.g. rugby) are inherently risky activities - need to keep this in consideration

Question 6

consent and rescuers

Answer 6

When C suffers harm while seeking to rescue A and A has been put in a danger as a result of D’s carelessness.
D may try to run the defence of consent and/or argue that C’s intervention breaks the causal chain

Baker v T.E. Hopkins
Doctor seeks to rescue two of D’s employees from a well, doctor overcome with fumes and dies, D seeks causal chain argument
Rejected by CoA - ‘those who put men in peril can hardly be heard to say that the rescue attempt was not caused by the creation of the peril’

Policy reference - no requirement for ppl to rescue ppl if don’t stand in significant relation with them but judges have made efforts to foster a social climate in which ppl receive a positive response from courts if rescue - courts reluctant to deny compensation for rescue attempts