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Defences to Liability Volenti non fit injuria (negligence) Three species Leave/Licence
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 :
? 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
Agreement o Nettleship v Weston :
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 :
Lord Reid: o If C invited or freely aided and abetted his fellowservant's disobedience,
? then he was volens in the fullest sense.
He cannot complain of the resulting injury ... for his fellow-servant's conduct
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,
to assume the risk of loss
And where it had been shown to be a moving spirit
? Giliker: "agreement" = not agreement per se
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
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
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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