Law of Torts - Consent

Volenti Non Fit Injuria

If P succeeded in proving the ingredient of a particular torts, D cant refute it by the available defences. One of the defence is Volenti Non Fit Injuria.

If P consented to the act by P which causes him harm, then no remedy in torts ie lawful sport lawful operation.

This doctrine works in 2 ways

i. consent given before the conduct complained either expressly or implied. Here the duty was not broken by D.

ii. Consent that shows P had waived his right of action. This consent is given after the breach of duty.

However consent must fulfill certain qualification

i. Consent must voluntary and free. Mere knowledge of risk does not imply that P undertake the risk. Please refer to the case of Letang v Ottawa Electrical and Kanagasapathy v Narsingam.

ii. Consent of a child. In England child 16 years and above can give consent for surgical, medical and dental treatment if he knows nature of consequences and matured. But if under age must get consent of guardian.

iii. Consent by fraud. If P aware of the nature of act, consent is affective and court will not see qualify act. Please refer to the case of Megarty v Smine.

iv. Consent to medical treatment. Must explain in broad risk of treatments. If not explain then no consent. Please refer to the case of Chatterson v Gerson If emergency consent is implied. Please refer to the case of Mill v Potter.

Passengers Case

i. A PDL driver still owes duty of care to passenger. Please refer to the case of Wettleship v Weston.

ii. Drunken driver. If passenger knew high quantity of alcohol which might cause danger contributory negligence. Please refer to the case of Owens v Brimmel.

iii. Notice riding on own risk. D must bring to the knowledge of P about the notice. Please refer to the case of Teh Hwa Seong v Chop Lim Chin Moh & Anor and also Section 55 Commercial Vehicle Licensing Board.

Sport Spectators

D can plea volenti non fit injuria if acted in normal circumstance but if acted beyond reasonable standard of care D cannot plea volenti non fit injuria. Please refer to the case of Wooldridge v Sumner.

Public Policy Illegality

If P is a wrongdoer and the harm is a consequence of unlawful act – cannot plea volenti non fit injuria. Please refer to the case of Ashton v Turner. But if before the unlawful act can plea volenti non fit injuria.
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