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Tort | Negligence

Absolute Defence: Consent

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Introduction

A defendant may raise consent, also referred to as a voluntary assumption of risk (volenti non fit injuria), as an absolute defence. If the defence is accepted a claimant will be prevented from recovering redress for a defendant's breach of duty.

Claimant's knowledge of the risk

The first element a defendant must establish is that the claimant had full knowledge of the nature and extent of the risk. It is insufficient for the claimant to have merely known that the risk exists.

The courts adopt a subjective test to determine whether the particular claimant fully understood the risk.

Facts:

The plaintiff was severely injured in a light aircraft accident and the pilot was killed. The plaintiff had been drinking with the pilot prior to taking the flight. The plaintiff sued the pilot's estate, but the defendant raised consent as a defence.

Issue:

Had the plaintiff appreciated the risk?

Held:

The Court of Appeal applied a subjective test to find that the plaintiff had not drunk so much that he was incapable of understanding the risk of flying with a drunk pilot.

Claimant's consent

Secondly, a defendant must prove the claimant willingly consented to taking the risk of injury because simple knowledge of the risk (sciens is not volens) is not sufficient. The consent must be freely and voluntarily given, without duress or fear. Therefore, the relationship between the parties may be taken into consideration.

The claimant's consent to the risk may be expressed orally or in writing or implied by their conduct. However, it is unusual for consent to be implied, as it is difficult to distinguish that the claimant consented to run the risk of harm and also accepted the risk of the defendant's negligence.

Intoxicated drivers

Issues of consent can arise if a claimant has accepted a lift with a driver who is clearly drunk. There is statutory guidance on this matter.

  • S149 Avoidance of certain agreements as to liability towards passengers

    S149(1) This section applies where a person uses a motor vehicle in circumstances such that under section 143 of this Act there is required to be in force in relation to his use of it such a policy of insurance or such a security in respect of third-party risks as complies with the requirements of this Part of this Act.

    S149(2) If any other person is carried in or upon the vehicle while the user is so using it, any antecedent agreement or understanding between them (whether intended to be legally binding or not) shall be of no effect so far as it purports or might be held -
    S149(2)(a) to negative or restrict any such liability of the user in respect of persons carried in or upon the vehicle as is required by section 145 of this Act to be covered by a policy of insurance, or
    S149(2)(b) to impose any conditions with respect to the enforcement of any such liability of the user.

    S149(3) The fact that a person so carried has willingly accepted as his the risk of negligence on the part of the user shall not be treated as negativing any such liability of the user.

    S149(4) For the purposes of this section -
    S149(4)(a) references to a person being carried in or upon a vehicle include references to a person entering or getting on to, or alighting from, the vehicle, and
    S149(4)(b) the reference to an antecedent agreement is to one made at any time before the liability arose.

  • Similar provisions were previously found under the Road Traffic Act 1978 s.148(3).

  • Facts:

    The plaintiff was severely injured in a motorbike accident, when travelling as a passenger. The plaintiff knew that the driver, who died in the accident, was drunk, uninsured and did not have licence. The plaintiff sued the driver's estate, but the defendant raised consent as a defence.

    Issue:

    Could consent be used as a defence?

    Held:

    The court found that s.148(3) Road Traffic Act 1978 prevents a defendant driver raising consent as a defence in circumstances where insurance cover for passengers is compulsory. The plaintiff had implied agreement to the risk by travelling as a passenger but consent was unavailable as a defence because of the statutory provisions. However, the court found that there was contributory negligence on the part of the plaintiff.

    Beldam LJ: .. it is no longer open to the driver of a motor vehicle to say that the fact of his passenger travelling in a vehicle in circumstances in which for one reason or another it could be said that he had willingly accepted a risk of negligence on the driver's part relieves him of liability for such negligence....

Therefore, under s.149 Road Traffic Act 1988, a defendant is unable to rely upon consent as a defence in cases where a passenger has been injured and insurance cover for the passenger was compulsory. This applies express agreements between driver and passenger, such as a notice stating passenger travel at their own risk and to implied agreements. However, contributory negligence is likely to succeed.

Rescuers

Consent is unlikely to succeed against a claimant who has been injured when acting as a rescuer. Generally, as a matter of policy, rescuers are encouraged. Furthermore, a rescuer is seen as acting under a legal, moral or social duty and therefore, has not freely consented to the risk of being injured in an emergency situation created by the defendant's negligence.

  • Haynes v Harwood [1935] 1 KB 146

    Facts:

    The plaintiff, a policemen saw the defendant's horse running loose in a crowd. The plaintiff was injured when he decided to chase after the horse. The defendant argued that the plaintiff had consented to the risk.

    Issue:

    Could consent be used as a defence?

    Held:

    The defence of consent was not successful. It was reasonably foreseeable that a person would act to intervene, especially the defendant who is under a general duty to assist and that injury may occur as a result.

    Greer LJ: .. I think it would be absurd to say that if a man deliberately incurs a risk he is entitled to less protection than if he acts on a sudden impulse....

  • Cutler v United Dairies [1933] 2 KB 297

    Facts:

    The plaintiff was injured when he entered a field to calm the defendant's horse. The defendant's horse had bolted into the field and the plaintiff stopped to help. The defendant raised consent as a defence.

    Issue:

    Could consent be used as a defence?

    Held:

    Consent was a successful defence because the plaintiff did not need to intervene as the horse presented no immediate danger. Therefore, the plaintiff was not acting under any duty to rescue and was found to have willingly consented to the risk of injury.

  • Facts:

    A doctor was killed when he entered a well to attempt to rescue two of the defendant's workers.

    Issue:

    Could consent be used as a defence?

    Held:

    The situation was clearly dangerous and the victim decided to enter the well anyway, however, his conduct did not amount to consent.

Workers

Generally the defence of consent rarely succeeds in cases between an employer and employee. This has developed over time with earlier cases showing that the courts were more willing to accept the defence.

  • Woodley v Metropolitan District Railway Co (1877) 2 ExD 384

    Facts:

    The plaintiff was injured when he was working on a railway for the defendant. The plaintiff would have very little time from becoming aware of an oncoming train to get to a safe place.

    Issue:

    Could consent be used by the employer as a defence?

    Held:

    Consent defence was accepted as the plaintiff voluntarily undertook the work, knowing the danger.

  • Bowater v Borough of Rowley Regis [1944] KB 476

    Facts:

    The plaintiff was injured when riding a horse-drawn cart for the defendant, his employer. The horse was known to be unruly and the plaintiff initially refused, but eventually agreed.

    Issue:

    Could consent be used by the employer as a defence?

    Held:

    The defence of consent was not successful.

    Scott LJ: .. A man cannot be said to be truly willing unless he is in a position to choose freely, and freedom of choice predicates, not only full knowledge of the circumstances on which the exercise of choice is conditioned, so that he may be able to choose wisely, but the absence from his mind of any feeling of constraint so that nothing shall interfere with the freedom of his will....

  • Facts:

    An employee was injured at work, due to the defendant's negligence. As a result he suffered severe depression as a consequence and committed suicide.

    Issue:

    Could consent be used by the employer as a defence?

    Held:

    The House of Lords confirmed that the employee's suicide following negligence by the employer did not constitute consent. The severe depression, which led to the suicide, was a foreseeable consequence of the defendant's breach.

Similarly, if a claimant is suing an employer for breach of a statutory duty the defence of consent is not likely to succeed on policy grounds.

Sports

It is well established that a participant or organiser of a sports event may be liable in Negligence, to competitors or spectators, if they are injured in the course of a sporting event.

Smoldon v Whitworth [1997] PIQR 133

Facts:

The plaintiff suffered a broken neck, after a scrum collapsed during a rugby match refereed by the defendant. There were a high number of collapsed scrums in the game.

Issue:

Could the defence of consent be used?

Held:

The defence of consent failed. The plaintiff may have consented to the ordinary risks of the game, but not to the defendant's negligent failure to apply the rules intended to protect players from injury.

Bingham LCJ: .. The level of care required is that which is appropriate in all the circumstances, and the circumstances are of crucial importance. Full account must be taken of the factual context in which a referee exercises his functions, and he could not be properly held liable for errors of judgment, oversights or lapses of which any referee might be guilty in the context of a fast-moving and vigorous contest. The threshold of liability is a high one. It will not easily be crossed....

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