consent

Question 1

What is the English translation of the Latin phrase ‘volenti non fit injuria’?

Answer 1

It translates to ‘that to which a man consents cannot be considered an injury’.

Question 2

In a negligence claim, at what stage do defences like consent become relevant?

Answer 2

Defences become relevant only after a tort has been established (i.e., loss, duty, breach, causation, and remoteness are proven).

Question 3

Who has the burden of proving a defence, such as consent, in a tort claim?

Answer 3

It is for the defendant to prove a defence on the balance of probabilities.

Question 4

What is the legal effect if a defendant successfully establishes the defence of consent (volenti non fit injuria)?

Answer 4

It acts as a complete defence, meaning the claimant receives no damages.

Question 5

What are the four requirements a defendant must show to succeed in the defence of consent?

Answer 5

1. The claimant had capacity
2. full knowledge of the risks
3. agreed to the risk of injury
4. and did so voluntarily.

Question 6

What is the first requirement the defendant must prove for the defence of consent?

Answer 6

The defendant must prove that the claimant had the capacity to give valid consent to the risks.

Question 7

In ‘Reeves v Commissioner of Police for the Metropolis’, why couldn’t the police use the defence of consent against the prisoner who took his own life?

Answer 7

The deceased’s action was the very thing the police had a duty of care to prevent, so he lacked the requisite capacity to consent to that risk.

Question 8

What is the second requirement for the defence of consent?

Answer 8

The claimant must have had full knowledge of the nature and extent of the risks that materialised.

Question 9

Is the test for whether a claimant had ‘full knowledge of the nature and extent of the risks’ subjective or objective?

Answer 9

The test is subjective; the question is whether the particular claimant knew the risk.

Question 10

In ‘Morris v Murray’, what was the court’s finding regarding the drunken claimant’s knowledge of the risks of flying with a drunken pilot?

Answer 10

The court held he was not so drunk as to be incapable of understanding the nature and extent of the risk.

Question 11

What is the third requirement for the defence of consent?

Answer 11

The claimant must have agreed to run the risk of injury due to the defendant’s negligence.

Question 12

In ‘Dann v Hamilton’, why did the defence of consent fail even though the passenger knew the driver was drunk?

Answer 12

The court held that knowing the risk did not mean she had impliedly consented to waive any claim for the driver’s negligence.

Question 13

According to the judgment in ‘Morris v Murray’, in what kind of situation might a claimant’s agreement to a risk be implied?

Answer 13

Agreement may be implied where the activity is ‘intrinsically and obviously dangerous’, like meddling with an unexploded bomb.

Question 14

Why was agreement to the risk implied in ‘Morris v Murray’?

Answer 14

The risks were so glaringly obvious (drunken pilot, bad weather) that the claimant’s participation was seen as an implied agreement to run the risk of injury.

Question 15

In the context of sports, to what kind of risks does a participant voluntarily agree?

Answer 15

A participant agrees to the risks inherent in that sport, but not to risks which are not inherent, such as serious foul play.

Question 16

What is the fourth requirement for the defence of consent?

Answer 16

The claimant must have agreed to the risk of injury voluntarily, free of any constraint.

Question 17

What principle regarding voluntary consent was established in ‘Smith v Charles Baker & Sons’ in the context of employment?

Answer 17

Employees who know of job risks are not necessarily voluntarily running those risks, as they may have little real option if they wish to keep their job.

Question 18

Why is it very difficult for an employer to use the defence of consent against an employee?

Answer 18

An employee’s agreement to risks at work may not be considered truly voluntary due to the economic pressure of keeping their job.

Question 19

In ‘Baker v T.E. Hopkins & Sons Ltd’, why was the doctor’s agreement to the risk of entering the mine not considered voluntary?

Answer 19

He acted out of an impulsive desire to save life as a rescuer, which was not considered a truly free or voluntary choice.

Question 20

How does Section 149 of the Road Traffic Act 1988 affect the defence of consent?

Answer 20

It prevents motorists from using the defence of consent against claims from their passengers (e.g., a drunk driver cannot use it against an injured passenger).

Question 21

Under the Unfair Contract Terms Act 1977, can a business exclude or restrict liability for death or personal injuries resulting from its negligence?

Answer 21

No, Section 2(1) prohibits defendants acting in the course of business from excluding or restricting this type of liability.

Question 22

According to Section 2(3) of UCTA 1977, does a person’s awareness of a notice excluding liability automatically mean they have voluntarily accepted the risk?

Answer 22

No, awareness of such a term or notice will not of itself be taken as indicating voluntary acceptance of any risk.

Question 23

Under the Consumer Rights Act 2015, what does Section 65(1) prohibit traders from doing?

Answer 23

It prohibits traders from using contract terms or notices to limit or exclude liability for death or personal injury through negligence when dealing with a consumer.

Question 24

According to Section 65(2) of the Consumer Rights Act 2015, can voluntary acceptance of a risk be assumed merely because a consumer knew about an exclusion term?

Answer 24

No, it cannot be assumed merely because the consumer agreed to or knew about the term.