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Consent Notes

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This is an extract of our Consent document, which we sell as part of our Tort Law Notes collection written by the top tier of Oxford students.

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Defences to Liability Volenti non fit injuria (negligence) Three species Leave/Licence

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E.g. surgeon obtains permission of patient to perform operation, meaning that surgeon is not committing tort of trespass against the person o Freeman v Home Office [1984]:
? Is up to the claimant to prove absence of consent
? Although D will usually bring up evidence showing consent rather than rely on C to not prove absence of consent Voluntary Assumption of Risk - Three requirements

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Agreement o Nettleship v Weston [1971]:

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Lord Denning: o Nothing will suffice short of an agreement to waive any claim for negligence.
? C must agree, expressly or impliedly, to waive any claim for any injury that may befall him due to the lack of reasonable care by the defendant o Giliker: if this view were taken generally, would probably severely curtail the defence, so more loose definition of agreement generally used:
? ICI v Shatwell [1965]:

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Lord Reid: o If C invited or freely aided and abetted his fellowservant's disobedience,
? then he was volens in the fullest sense.

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He cannot complain of the resulting injury ... for his fellow-servant's conduct

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Lord Pearce: o The defence of volenti non fit injuria is clearly applicable if there was a genuine full agreement,
? free from any kind of pressure,

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to assume the risk of loss

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And where it had been shown to be a moving spirit
? Giliker: "agreement" = not agreement per se

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C's, by her actions or words, is seen to have clearly consented to the risk involved. o Need not be express - can be implied

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Full knowledge and acceptance of the nature and extent of the risk o To lose right to sue for negligence, not sufficient just to show consent to the risks
? But when consent is in full knowledge of risk and extent of risk involved
? Giliker: e.g. when going to a friend's BBQ, I accept the risk of breathing in smoke and potentially undercooked food

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But, unless you tell me and I go anyway, I don't accept the risk you will pour petrol on the BBQ and cause a massive explosion.

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