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Tort | Negligence

Absolute Defence: Consent

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Absolute Defences: Consent

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  • consent or voluntary assumption of risk (volenti non fit injuria) / if successful C cannot recover damages for D's breach

Claimant's knowledge of the risk

  • D must establish: C full knowledge / nature & extent of risk / insufficient C merely knew risk exist
  • drunk pilot / subjective test: P sober enough / defence successful (Morris v Murray [1991])

Claimant's consent

  • D must prove: C freely & voluntarily consented / to taking risk of injury / no fear or duress
  • consent can be: express: oral or written / implied: by conduct
  • implied: difficult to establish C consented / risk of harm & accepted risk of D's negligence

Intoxicated drivers

  • s.149 Road Traffic Act 1988: if insurance for passenger compulsory / D unable rely upon consent / applies: express agreements between driver & passenger (notice) / & implied agreements
  • motorbike / consent failed / but contributory negligence (Pitts v Hunt [1990])


  • participant or organiser / may be liable / to competitors or spectators
  • referee / C consent ordinary risks of game / not D's negligent failure to apply rules intended protect players / D not liable .. errors of judgment, oversights or lapses... / consent failed (Smoldon v Whitworth [1997])
bits of law

Absolute Defences: Consent

[Flash Card 2 of 2]

Claimant's consent


  • policy reasons: consent unlikely succeed rescuer / rescuer acts under legal moral or social duty / so not freely consented to risk / in emergency situation created by D's negligence
  • policeman horse / consent failed / decision to intervene foreseeable (Haynes v Harwood [1935])
  • horse in field / no immediate danger / consent successful (Cutler v United Dairies [1933] )
  • doctor / P's action considered .. context of immediate and pressing emergency... / consent failed (Baker v Hopkins [1959])


  • consent rarely succeeds between employer & employee / developed over time
  • railway workman / consent succeeded (Woodley v Metropolitan Railway (1877))
  • unruly horse / Scott LJ: .. absence from his mind of any feeling of constraint so that nothing shall interfere with the freedom of his will... / consent failed (Bowater v Borough of Rowley Regis [1944] )
  • suicide / no consent: depression foreseeable consequence D's work injury (Corr v IBC Vehicles [2008])
  • if statutory duty breached: consent likely to fail / policy grounds
bits of law
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