GOJ Part 3 Consent

Question 1

Basis of consent

Answer 1

That it is inline with legal and public policy considerations not to impose delictual liability where someone has consented to suffering harm

Question 2

Volenti non fit iniuria meaning

Answer 2

Where someone has consented there is no injury

Question 3

Distinguish between two forms of consent

Answer 3

1. Specific harm consent
2. Consent to the risk that you might suffer harm, what are the risks to which you consented and did they realise; if you suffer harm as result of the materialisation of those risks there is no liability

Question 4

Distinguish between consent and contributory negligence

Answer 4

Contributory negligence: both can be held liable and this is taken into account when damages are apportioned

Question 5

Waring & ; Gillow states the elements of consent; what are those elements?

Answer 5

Knowledge, appreciation and consent- knowledge does not invaraibly imply appreciation and both together are not necessarily equivalent to consent

Question 6

What are the characteristics of consent to specific harm?

Answer 6

• unilateral act
• person who gives it can also retract it without participation of another person
• consent may be express or tacid
• consent must be given by plaintiff; in exceptional circumstances it can be by someone else

Question 7

Requirement for consent to specific harm

Answer 7

• juristic act: consent must manifest, if it doesnt then it would allow the defendant to argue plaintiff consented and defendant would escape liability
• must consent before the harm occurs
• must be voluntary consent
• person giving consent must have capacity yo express will
• consent must be legally permissable or reasonable
• the person consenting must have full and prior knowledge of nature and extent of harm that you will suffer
• person consenting must subjectively understand & appreciate what will happen to them
• must be true subjective consent

Question 8

Consent by assumption of risk relevant case law

Answer 8

Santam Insurance v Vorster

Question 9

Consent by assumption of risk: Medical context

Answer 9

Castell v De Greeff: doctor is obliged to warn a patinet consenting of a material risk inherent to the proposed treatment a risk being material if in the circumstances of the case:

a) a reasonable person in the patients position if warned of the risk would be likely to attach significance to it
b) the medical practitioner is or should be reasonably aware that the particular patient, if warned of the risk would attach significance to it.