#2277 - Consent - Tort Law

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 on employer to change conditions

        • Held HoL: no voluntary choice in this situation, even though C continued to work

    • BUT..... when work inherently dangerous and employer tries best to make things safe....

      • ICI v Shatwell [1965]:

        • Lord Pierce: If employer takes every step to make inherently dangerous work as safe as possible, and then employees disobey these regulations.

          • Employee deemed to accept risk.

        • Lord Reid: If fellow-servants combine to disobey an order deliberately though they know the risk involved

          • volenti non fit injuria is a complete defence if the employer is not himself at fault and not vicariously liable for an employee’s actions.

  • Intoxication

    • Morris v Murray

      • C was intoxicated, but not so much that he could not understand the risks of getting in plane with drunk pilot

        • But if C so drunk he can’t contemplate risk

        • Then not taken to be “voluntary choice”

  • Suicide

    • Reeves v Metropolitan Police Commissioner [2000]:

      • If X is not of sound mind

        • Then if he commits suicide under the care of someone else who negligently fails to discharge that duty

          • Then X is not taken to have assumed the risk and made a voluntary choice.

      • BUT Even if X “of sound mind”

        • Lord Hoffmann: is difficult to prove whether Z is of sound mind or not

          • Would be unfair to impose or not impose liability on basis of whether X sound or not.

            • So draw the line in a different place.

        • IF Z takes on a specific duty to prevent suicide

        • Z will still be liable

          • But not if no specific duty to actually prevent suicide, just to take general reasonable care

  • Rescuers

    • Giliker: non-professional rescuers have arguably assumed risks knowing of danger

      • So the person whose negligence caused the risk should not be liable

    • Haynes v Harwood [1935] (horse bolting owing to stone, injures policeman trying to restrain it from crushing Y and X)

      • No duty to rescue unless statutory

      • BUT also not assumed to be “voluntary” owing to moral, social and legal duties which force rescuer to intervene

        • Thus, if reaction of rescuer reasonably foreseeable, then X liable for any injury to rescuer and “vol assumption or risk” will not lie.

Other uses of consent

• Giliker: courts don’t always approach question of consent in negligence consistently. C’s consent may either limit standard of care required, or...