Tort Law notes fully updated for recent exams at Oxford and Cambridge. These notes cover all the LLB tort law cases and so are perfect for anyone doing an LLB in the UK or a great supplement for those doing LLBs abroad, whether that be in Ireland, Hong Kong or Malaysia (University of London).
These were the best Tort Law notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through dozens of LLB samples from outstanding law students with the highest results in ...
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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
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
Agreement
Nettleship v Weston [1971]:
Lord Denning:
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
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]:
Lord Reid:
If C invited or freely aided and abetted his fellow-servant'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:
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.
Need not be express – can be implied
Full knowledge and acceptance of the nature and extent of the risk
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.
Motor Vehicles
Dann v Hamilton [1939]:
X went with H to see some decorations, and H consumed alcohol. Z warned X not to get a lift back from H, but X said “if anything is going to happen, it will”. H crashed, injuring X.
Asquith LJ:
Unless glaringly obvious that getting in car dangerous owing to state of D, C by embarking in the car, and although knowing D is intoxicated
C does not impliedly consent to any liability for any subsequent negligence on his part whereby she might suffer harm.
Nettleship v Weston [1971]:
Lord Denning: Where passenger knows you are not of a high standard, or drunk, or one-eyed
And voluntarily agrees to be in the car with you
You still owe him a duty of care to drive like a reasonable prudent driver
Otherwise this would lead to injustice and endless confusion.
Lord Salmon (dis)
Position should be that no claim when,
to the knowledge of the passenger,
the driver is so drunk as to be incapable of driving safely.
Passenger is negligent in accepting lift because he can’t believe the driver will drive anything other than dangerously.
Decision affirmed for riding pillion on motorbike in Pitts v Hunt [1984]:
Balcombe LJ: Road Traffic Act holds that even where passenger knows of danger getting into motor vehicle
He is not to be held to have agreed to waive liability for any negligence of Z
Road Traffic Act 1988 s.149(3)
Defence of voluntary assumption of risk not available for accidents where car passengers get into car despite potentially knowing and “accepting” driver is dangerous
Insurance Company can normally pay out there.
Doesn’t prevent contributory negligence operating though.
Not a motor vehicle
Morris v Murray [1990]:
Plane + drunk pilot w/ 15 whiskies in him = crash
Fox LJ: Point of the volens doctrine is that one who has invited or assented to an act being done to him cannot complain of a wrong
By agreeing to be flown by M
C must be taken to have accepted fully the risk of serious injury.
The danger was both obvious and great.
He could not possibly have supposed that M, who had been drinking all the afternoon, was capable of discharging a normal duty of care.
Falls into Asquith J’s “exceptional case” b/c so dangerous and irresponsible.
Voluntary Choice by Claimant
No defence unless was voluntary
Within work
Smith v Charles Baker and Sons [1891]:
C worked in an environment, where a crane continually passed stones over his head and he was injured when one fell on him
Accepted that C knew the risks but he wanted to keep his job and had no pressure to exert...
Buy the full version of these notes or essay plans and more in our Tort Law Notes.
Tort Law notes fully updated for recent exams at Oxford and Cambridge. These notes cover all the LLB tort law cases and so are perfect for anyone doing an LLB in the UK or a great supplement for those doing LLBs abroad, whether that be in Ireland, Hong Kong or Malaysia (University of London).
These were the best Tort Law notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through dozens of LLB samples from outstanding law students with the highest results in ...
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