Wrongfulness: Grounds of Justification - Consent

Question 1

Define consent

Answer 1

Where a person legally capable of expressing his will gives consent to injury or harm, the causing of such harm will be lawful.

Question 2

What is the consequence of giving consent?

Answer 2

The harmed party waivers his right to the extent that he permits the defendant to violate his interests.

The actor thus cannot be held liable for the damage caused.

Question 3

The maxim that states that a defendant is not liable where the injured person has consented to injury or the risk is called?

Answer 3

Volenti non fit iniuria (Volenti)

It may mean either consent to injury OR the RISK of injury

Question 4

Name the two forms of consent.

Answer 4

a. Consent to injury

b. Consent to the risk of injury.

Question 5

Which of the two forms of consent refers to specific harm?

Answer 5

Consent to injury

Question 6

Give examples of consent to injury

Answer 6

1. Consent given to a doctor to remove an appendix.
2. consent given to a barber to cut hair.
3. Rugby prop-forward consents that his opponent may scrum against him.

Question 7

Explain consent to the risk of injury and give a few examples:

Answer 7

The injured party consents to the risk of harm caused by the defendant’s conduct.

Examples: if a patient consents to an operation, she may also consent to the risk of a side-effect, a person participating in sport is consenting to the risk of injury.

Question 8

Is consent subjective or objective?

Answer 8

Objective.

Question 9

Name the 5 characteristics of consent.

Answer 9

1. A unilateral act
2. Is a legal act which restricts injured party’s rights
3. Express or tacit
4. Must be given before the act
5. Normally the prejudiced party must consent himself.

Question 10

What is your understanding of consent being a unilateral act.

Answer 10

•Unilateral - not an agreement or contract (which is bilateral)
Consent need not necessarily be made known to the defendant.
• It can be unilaterally revoked.
• Contract to relieve the actor of liability is unnecessary.

Question 11

What qualifies consent as a legal act?

Answer 11

• It must be apparent or manifest.
• It must be brought to light.
• Consent does not exist if it is not evident.

Question 12

Distinguish between express consent and tacit consent

Answer 12

Express consent — words

Tacit consent — by conduct

Question 13

Fill in the missing words:

A. ——, B. ——, and C. —— to injure normally, but not necessarily, indicate that consent is present

Answer 13

A. Incitement
B. Encouragement
C. Invitation

Question 14

True or false:

Acquiescence (submission) and knowledge that prejudice will ensue constitute consent.

Answer 14

False.
Acquiescence (submission) doesn’t necessarily amount to consent.
Knowledge that prejudice will ensue, in itself, doesn’t constitute consent.

Question 15

Can consent be given after prejudicial conduct?

Answer 15

No.

Consent must be given BEFORE the prejudicial conduct.

Question 16

What is a pactum de non petendo?

Answer 16

This is when “approval” is given after the act ( it is not consent), but may amount to an UNDERTAKING not to institute an action against the defendant.

Question 17

What are the requirements of a valid consent?

Answer 17

1) Must be given FREELY and VOLUNTARY.
2) Person giving the consent must be CAPABLE of volition or express his free will.
3) The person consenting must in fact SUBJECTIVELY consent to the prejudicial act.
4) The consenting party must have full knowledge of the EXTENT of the possible prejudice.
5) Consenting party must REALISE and FULLY APPRECIATE what the nature and extent of the harm will be.
5) The consent must be permitted by the legal order (not be CONTRA BONOS MORES) - e.g. may participate in lawful sport, medical treatment
6) Impairment must fall within LIMITS of consent (not go too far). E.g. I can give consent to have a tattoo, but I don’t consent to the tattoo artist using unsterile needles.

Question 18

What is a pactum de non petendo?

Answer 18

A contractual undertaking not to institute an action against the actor. Not to hold the actor liable. This means that prejudiced person losses their delictual remedy that they would otherwise have had.

Question 19

Names: Mbuie and Charlotte

Answer 19

Consent as a ground of justification