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General Defences Notes

GDL Law Notes > GDL Tort Law Notes

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A more recent version of these General Defences notes – written by Cambridge/Bpp/College Of Law students – is available here.

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General Defences

[TORT 9]

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General defences work towards all torts

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Distinction btw defences which are complete (extinguishes liability) and partial (reduces liability)

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Burden of proof shifts to the defence when establishing defences

Volenti non fit injuria ("Volenti"): Complete defence

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"that to which a man consents cannot be considered an injury"

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In order to succeed in this defence must show that the claimant:

1. Knew of the nature and extent of the risk; and

2. Voluntarily agreed to the risk of being injured by the defendant; and, in some cases,

3. Voluntarily agreed that there should be no legal liability for this

1. Knowledge o

Claimant has full knowledge of the risk: quite subjective - look at behaviour

o

Drink driver cases:Dann v Hamilton: for policy reasons the driver is still liable - the passenger consents to be driven but does NOT consent to the car being driven badly

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Lord Asquith - for volenti to apply it would have to be the equivalent of the claimant tampering with an unexploded bomb - restriction to extreme cases

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Nowadays the courts use contributory negligence :Owens V Brimmell : both C and D had had 9 pints:

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Morris v Murray: C consented to be flown home with a drunken pilot: defence of volenti succeeded, due to the extreme nature of the risk - 'it beggars belief what the plaintiff did'

o

Sacco v Chief Constable of South Wales Police: P was in back of a police-van: he kicked the doors open and jumped out- drunken state did not negate the defence of volenti

1 General Defences

[TORT 9]

2. Acceptance of risk (Agreement) o

ICI v Shatwell: per Lord Reid - testing detonator - ignoring safety instructions/statutory requirements et: but held that the plaintiff exactly knew what they were doing and consented to the risk: Reid talked about the fact you don't need a formal agreement - behaviour sufficient

o

Express agreement or implied by your behaviourIn medical practice - the more risky the treatment - the more likely it has to be expressE.g. Bungee jumping: form which accepts that there are risks

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Netlleship v Weston: plaintiff was a driving instructor: consented to risks of learner driver

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Dann v Hamilton: no implied agreement unless the risk was so extreme that it was the equivalent of 'meddling with an unexploded bomb'Similarly in Ratcliffe v McConnel: drunken student dived into pool without checking depth

3. Voluntary decision by the claimant o

Consent must be genuine and voluntarily given without evidence of duress, blackmail, force, coercion etc. - courts will be very strict with this

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Bowater v Rowley Regis Corp: Lord Justice Scott - 'a man cannot be said to be 'willing' unless he is in a position to choose freely' - entails 'the absence of any feeling of constraint'

a) Employers o

Smith v Charles Baker & Sons: defence of volenti denied due to economic duress : employees who know of the risk of their jobs are not necessarily voluntarily running those risks - little real option

o

ICI v Shatwell (above) - had consented to risk and had in fact broken employers rules

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