Consent

Question 1

What is consent and when is it applicable?

aka volenti non fit injuria

Answer 1

That to which a party consents cannot be considered an injury. This is applicable where C consented to risks involved and cannot therefore complain of consequential damage.

Question 2

How to succeed in the consent defence?

Answer 2

It is for D to prove defence on the balance of probabilities.
D must show C:
* had capacity to give valid consent to the risks:
- straight forward unless C is a minor or mentally incapacitated
- in case where C took his own life whilst in police custody in which police knew he was at risk - this was an action D was required by their duty of care to prevent
* has full knowledge of the nature and extent of the risks:
- general knowledge will not suffice
- subjective test based on what particular C knew about nature and extent of risk
* agreed to risk of injury:
- agreement can be expressed or implied
- subjective - must consent despite knowing risk
- conduct includes: where activity is like engaging in an instrinsincly and dangerous occupation, then makes it easier that agreement is implied
- any risk short of this, might not give rise to this defence
* agreed voluntarily:
- with no constraints
- employees who know risk of their job aren’t volunatarily running risk as they might little option if they wish to keep job so very difficult to succed in this defence, where C is an employee
- relevant in rescue cases, where C is a rescuer who dives into dangerous situation to save D might not be seen as agreeing voluntarily to the risk created by D’s negligence but acted out of impulsive desire to save lives

If successful, consent acts as a complete defence and C gets no damages

Question 3

In what situations may consent be negated by statute?

Answer 3

• Road Traffic Act: prevents use of consent by motorist facing claims from their passengers.
• Unfair Contract Terms Act: prohibts D (acting in course of business) excluding or restricting liability for death or personal injuries resulting from negligence - even if person agrees and is aware of terms.
• Consumer Rights Act: prohibits traders when dealing with consumers from using contract terms/notices limiting or excluding liability for death or injury through negligence