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General Defences Notes

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General Defences

[TORT 9]


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 o

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

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


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


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 o

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'

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


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


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