Chapter 47- Defences

Question 1

Define Volenti non fit injuria

Answer 1

“To one who volunteers, no harm is done.”
- This means that if volenti is proved, the defendant will avoid liability completely and no compensation will be payable to the claimant.
- The defence can be used for both intentional torts (assault) and also non-intentional torts(negligence)

Question 2

State the 3 elements of volenti non fit injuria

Answer 2

• Voluntary
• Agreement
• Made in full knowledge and understanding of the nature and extent of the risk

Question 3

Volenti non fit injuria

VOLUNTARY

Answer 3

• The claimant has had complete free choice

Question 4

Volenti

AGREEMENT:

Answer 4

• This can be expressed or implied
• The claimant and defendant have to expressly agree that the claimant will voluntarily accept the risk of harm and the agreement is made before the negligence occues.
• If an expressed agreement has been made, the UCT Act can not exclude any liability for death or personal injury

Question 5

Volenti

KNOWLEDGE:

Answer 5

• The claimant must have knowledge of the existence of the risk and its full nature and extent
• However this test is subjective

Question 6

What is The Road Traffic Act

Answer 6

This is an act where it states that volenti is not available where a passenger in a car sues the driver and the driver should have compulsory insurance.
- Pitts v Hunt

Question 7

Volenti

Application in Employment

Answer 7

• In the early nineteenth century, it was assumed that all employees consented to the risks attached to their jobs.
• The reasoning for this was at the time, the courts believed that an employer and employee had unequal jobs and that an employee may have been afraid not to go to work for fear of losing their job
• This changed due to political and societal changes and now it is unusual for volenti to act as a defence in employer/employee situations

Question 8

Volenti

Application in medical treatment

Answer 8

• When a person of sound mind gives consent, that consent must be real.
• A patient must be told about the nature of any examination or treatment in broad terms.
• Any questions asked by the patient must be answered truthfully and fully by the doctor.
• A doctor can only treat a person without consent if the person lacks capacity. This can be a result of mental illness, brain injury or drug and alcohol abuse. The Mental Health act only allows for treatment without consent for the mental disorder itself.

Question 9

Volenti

Application in sports

Answer 9

• a particiapnt in a sporting event is taken to give implied consent to the risk of injury that occurs in the course of the ordinary performance of the sport.
• Any injury inflicted outside the rules of the game will not be able to be defended

Question 10

Define contributory negligence- The Law Reform Act

Answer 10

This occurs when the claimant fails to take reasonable care for their own safet and their own negligence contributes to the harm or damage they have suffered.

Question 11

Contributory negligence can be a defence in which torts

Answer 11

• Ryland v Fletcher
• Negligence
• OLA
• Nuisance

Question 12

Give two situations in which damages will be reduced

Answer 12

1.Where without the claimants contributory negligence, the accident would not have happened
2.The claimant negligence increased the severity of the injury/damage

Question 13

What happens when the claimant is a child during contributory negligence

Answer 13

• The defence will have to take into account subjective factors such as their age and experience
• Lord Denning stated that a child cannot be held to contributory negligence however their awareness and knowledge will be taken into account.

Question 14

What happens when the claimant is a passenger

Answer 14

• Both children and adults are required to wear seatbelts
• The court will use an objective standard to decide if the claimant had worsened the injuries or harm where a reasonable person is expected to wear a seatbelt.

Question 15

What happens when the claimant is a cyclist

Answer 15

• This applies when the claimant has not worn a helmet
• Cyclists who do not wear helmets and suffer an injury will be held liable for those injuries, this is only if it can be proved that a helmet would have prevented the injury

Question 16

Alternative defence

Inevitable accident

Answer 16

• This is where the defendant could not have avoided the incident and it is not intended. The accident will occur regardless of how much care the defendant has taken.

Question 17

Alternative

Act of God

Answer 17

This defence is used when the damage is caused by natural forces. This is when the defendant could not foresee it

Question 18

Alternative

Statutory Authority

Answer 18

• When it can be proved that the defendants actions are authorised by an Act of Parliament.

Question 19

Alternative

Illegality

Answer 19

• ## “Ex turpi causa” This means that a claim cannot be based on illegal or immoral conduct

Question 20

Alternative

Necessity

Answer 20

• This a legal defense used when someone breaks the law to prevent a greater harm

Question 21

Evaluate Defences
(volenti non-fit injuria)

Answer 21

• Prevents unfair claims. Defendants should not be held responsible when claimants voluntarily engage in dangerous action
• Lack of true understanding of the risk and claimant will not look at the whole picture
• Must have willingly taken the risk without pressure
• Employers can exploit volenti to avoid liability
• Where is the line between normal and excessive risk?

Question 22

Evaluate Defences
(Contributory negligence -children)

Answer 22

• Can be harsh if claimant looses compensation even if they were only slightly at fault.
• What would a reasonable man have done- Standard of Care
• Young children cannot asses risks like adults.The law aims to protect children, not punish them. This prevents unfair outcomes
• By assessing what age should be responsible, it can lead to inconsistency.
• Justice can be served to the defendant where blame was not fully at their fault.