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GDL Law Notes GDL Tort Law Notes

General Defences Notes

Updated General Defences Notes

GDL Tort Law Notes

GDL Tort Law

Approximately 591 pages

A collection of the best GDL notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through applications from top students and carefully evaluating each on accuracy, formatting, logical structure, spelling/grammar, conciseness and "wow-factor". In short these are what we believe to be the strongest set of GDL notes available in the UK this year. This collection of GDL notes is fully updated for recent exams, also making them the most up-to-date GDL study materials ...

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  • General defences work towards all torts

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

  • Burden of proof shifts to the defence when establishing defences

Volenti non fit injuria (“Volenti”): Complete defence

  • that to which a man consents cannot be considered an injury”

  • 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

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

    • 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

        • 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

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

    • 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’

    • 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

  2. Acceptance of risk (Agreement)

    • 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

    • Express agreement or implied by your behaviour

      • In medical practice – the more risky the treatment – the more likely it has to be express

      • E.g. Bungee jumping: form which accepts that there are risks

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

    • 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

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

    • 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’

  1. Employers

    • 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

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

  2. Rescuers

    • When a rescuer sues a defendant –usually volenti cannot be used

    • Danger invites rescue” – Judge Cardozo (American judge): when you have any kind of danger then people will naturally try to enact a rescue and the law needs to protect them – Wagner v International Railway Co.

    • Hayes v Harwood and Cutler v United Dairies: cases about bolting horses: volenti won’t work if there was a ‘legal, social or moral duty’ to rescue

    • Baker v T.E Hopkins & Sons Ltd: Courts want to encourage rescuers – made it clear that they would never say that a rescuer consents unless they do something ‘wantonly foolhardy’

  3. Suicide (Mental Capacity)

  • Kirkham v Chief Constable of Greater Manchester: The claimant must have the mental capacity to consent

  • Reeves v Metropolitan Police Commissioner: he wasn’t of unsound mind but still not volenti – police should have done more – contributory negligence

Sports/Games/Horseplay: Rules of the Game – works for participants and spectators

  • Hall v Brooklands Auto Racing Club:

    • Spectator had consented to risk of being hit when he stood at the side of the racing track – inherent dangers in the sport

  • Simms v Leigh RFC: Volenti applied where a rugby player ran into a wall as the stadium complied with specification requirements

  • Condon v Basi: footballer HAD NOT consented to dangerous play (outside the rules of the game)

  • Smoldon v Whitworth: referee can be sued for failure to uphold rules of the game

  • Bkake v Galloway: horseplay: ‘tacit’/latent rules to which the C had consented – but if a person goes beyond the tacit rules then this can be a breach as no volenti


  1. By Statute e.g. 149 RTA 1988 – volenti banned for traffic accidents -can’t consent to someone’s bad driving

  2. By S.2 Unfair Contract Terms Act 1977: S2: cannot exclude liability for death or personal injury and exclusion of other damage only in so far as it is reasonable: applies to all those acting in the course of business (S1(3))

    • Johnstone v Bloomsbury AHA – contract which excluded damage caused to doctor from long working hours was subject to UCTA

Contributory Negligence

  • Partial defence governed by S 1(1) Law Reform (Contributory Negligence) Act 1945

  • S 4 defines “Fault” and “Damage”

  1. Was the claimant acting negligently?: Basic rules for negligence: objective test of whether C acted reasonably

  • Jones v Livox Quarries : C was riding on the tow bar of a vehicle - ought reasonably to have foreseen the risk he might hurt himself

  • Griffin v Mersey Regional Ambulance Services: hit by ambulance but should have reacted to sirens

  • Froom v Butcher: didn’t wear a seatbelt – partly to blame for the injuries

  • Sayers v Harlow UDC: woman tried to escape from toilet after door jammed ‘acrobatic feat’

  • Brannon v Airtours plc: put head into a ceiling fan

  • Badger v Ministry of Defence: partly to blame if you’re a smoker and you get a lung disease: known risk

  • Jones v Boyce: No contributory negligence where C jumped from cart – acted reasonably (emergency)

  • ...

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