Defences

Word document exlaining general defences in tort law.

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DEFENCES
The first defence is volenti non fit injuria (no injury can be done to a willing person). If C consents to a
risk then then D cannot be sued if that risk occurs. This is an objective test as C is judged by whether a
reasonable man would consider C had consented. Consent can be either express or implied or an
assumption of risk, C's behaviour demonstrates willing to run risk of injury.
For this defence it is required that consent be real and freely given (SMITH v BAKER) or there be an
assumption of risk (ICI v SHATWELL), the consent cannot be obtained through fraud (R v WILLIAMS)
and rescuers are on principle not considered volenti if protecting property or preventing death or
injury (HAYNES v HARWOOD) but if there is no such urgency C will be volenti, however if the risk that
materialises differs to the risk C consents to there is no volenti (GILLMORE v LONDON CC).
For sport you can only consent to injury within the rules of the game (SIMMS v LEIGH RUGBY FC) and
no volenti to incidents outside course of game (R v BILLINGHURST), cannot consent to negligent
refereeing (SMOLDEN v WHITWORTH) but spectators are considered volenti if the players are
observing the rules of the game (WOOLRIDGE v SUMNER) and volenti can also apply to `rough
horseplay' (BLAKE v GALLOWAY).
For drunk drivers volenti cannot apply to a case where C has accepted a lift knowing the driver is
drunk due to S 149 ROAD TRAFFIC ACT 1988 however this does not apply to aircraft piloted whilst
drunk (MORRIS v MURRAY).
For medical cases there is the issue of consent for cases involving trespass to person. Another issue is
consent for cases in negligence, WELLS v COOPER shows that although C cannot consent to medical
negligence it is the informing of risks that is important in the assumption of risk. The standard
disclosure for risks comes from BOLAM v FRIERN HOSPITAL MANAGEMENT COMMITTEE and SIDAWAY
v GOVERNORS OF BETHLEM ROYAL HOSPITAL so the test is what a reasonable doctor would tell the
patient.
The defence of contributory negligence (CN) pre 1945 was a complete defence for D but Parliament
passed the LAW REFORM (CONTRIBUTORY NEGLIGENCE) ACT 1945 so now the damages will only be
reduced if this defence is allowed. For this defence D must prove that C was contributorily negligent
by showing C was at fault and this fault then caused harm.
The key question to see if C was at fault is did C take reasonable care for their own safety in the
circumstances? The case of DAVIES v SWAN MOTOR CO shows this as C did not take reasonable care
and so were CN.
In an emergency it is accepted a reasonable person may make an error of judgement as shown in
JONES v BOYCE where it was a reasonable reaction.
For children there is no minimum age for which a child will not be guilty of CN but the case of GOUGH
v THORNE suggests 13 as an age but it appears each case would need to be looked at on its own
facts as shown in EVANS v SOUL S GATAGES where the 13 year old boys should have known better
and so were CN.

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Due to S149 of the ROAD TRAFFIC ACT 1988 C cannot be volenti when accepting a lift from a driver C
knows to be drunk but they can be CN as evidenced in OWENS v BRIMMEL and STINTON v STINTON
shows the key factor is if C knows that D is unfit to drive when accepting the lift.
In REVILL v NEWBURY the C was not volenti as did not have full knowledge but was CN as was
engaging in criminal activity.…read more

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