Defences - 4.0 DEFENCES A defense is a defendants stated...

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4.0 DEFENCES A defense is a defendant’s stated reason why the plaintiff has no valid case. A defense is that which is alleged by a party proceeded against in an action or suit, as a reason why the plaintiff should not recover or establish that which he seeks by his complaint. Defences in tort can be both general and specific. There are specific defences that apply only in the case of specific torts. E.g like absolute privilege in deformation. There are other defences which are applied in numerous situations and are known as general defences. These are The defense of Consent ( Volenti non fit injuria) Inevitable Accident Act of God Self defence Necessity Act in respect to Statutory Authority Illegality ( ex turpi causa non oritur actio ) 4.1 Defence of Consent. (Volenti non fit Injuria) This defense is based on the principle of ‘Volenti non fit Injuria’ . Volenti as a defence concerns a voluntary assumption of the risk of harm by the claimant. A person, who has voluntarily agreed to suffer harm, cannot claim damages for such harm. This consent to suffer harm can be either express or even implied. It is a complete defence and when successfully used, the claimant will receive NO damages. Its effect is to deny the claimant any remedy at all against the defendant
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However, such consent must be given freely and not obtained by fraud or any other illegal means. The claimant must have a full understanding of the nature of the actual risk for the defence to succeed Neither will this defence work in situations where the claimant has no choice but to accept the risk. The assumption of risk must be freely taken and claimant voluntarily undertakes the risk of harm. Eg. In a construction site, the casual workmen cannot complain of injury when working as they are fully aware of the eminent dangers that are there. Similarly, a footballer cannot complain for being injured while playing the game. It also applies in other dangerous sports like boxing, judo, rugby etc. The viability of the defence depends on the circumstances of each case, otherwise the consenting party does not, by his consent, necessarily give an open cheque to the other party to act negligently, high- handedly or in whatever manner he pleases. Volenti is not available as a defence to certain actions particularly in rescue cases. Where the defendant creates a situation where someone else is put in danger, and the claimant, risks there life or even safety rescues the endangered person incurring some injuries in the process. The defendant cannot claim the claimant voluntarily risked his life. He (defendant) is therefore liable for the injury or damage sustained by the claimant. Haynes vs Harwood (1935) The defendant’s servant left a van and horses unattended in a crowded street. A boy threw a stone at the horses and they bolted. This exposed a woman and some children nearby to some grave danger. The plaintiff, a police constable, managed to stop both horses; but he did so at great personal risk and sustained severe injuries. In an action brought against him, the
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  • Summer '16
  • jane murungi
  • Law, Statutory Authority, volenti non fit injuria, volenti

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