The legislation changes the onus of proof from cl

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(The legislation changes the onus of proof from CL; previously the D had to prove P should have known subjectively, now P must show on the balance of probabilities that he was not aware of the risk.) Three elements: Perceived danger Scope of the risk Voluntary acceptance of the risk A. PERCEIVED DANGER P knowledge of the facts creating the risk must be established. (this fails in drink driving situations where passenger was too drunk to realize that the driver was also hammered) Scanlon v American Cigarette Company Facts: Girl smoking since 15, contracted lung cancer. At trial, counsel for the Plaintiff wanted to strike out words “P knew or ought to have known Held: o It is not enough in establishing a volens defence if a plaintiff ‘ought to have known o There needs to be actual knowledge o A defendant may plead that any duty of care owed by the defendant was discharged by giving notice B. SCOPE OF THE RISK Nature of the risk which is accepted is relevant- did they accept all of the risk? The acceptance of one risk is not necessarily the acceptance of all risks This requires an understanding of the nature and extent of the actual risk For the D to succeed in defence must show they accepted the risk that materialised Kent v Scattini (WA Full Court) ?
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Facts: Water fight, 16 y o got into car to join in frolics, car crashed, sued for negligence. Held: o The Plaintiff ran the risk of getting wet and getting involved in some scrimmage with other participants o However she did not consent to the defendant driving around the bend at a fast speed. The defendant… retained his normal duty of care of driving with reasonable care for the safety of his passengers o For the Defendant to succeed, they must show that injured plaintiff accepted the risk that materialised C. VOLUNTARY ACCEPTANCE OF THE RISK Courts reluctant to apply defense in situations where the P’s actions were not voluntary and where the Plaintiff has not accepted the risk Rootes v Shelton: Owen J (CLR) To say that a participant in a sporting activity has voluntarily assumed the risk of an injury from another participant’s act or omission is to say that, with a knowledge of the risk involved he has impliedly consented to relieve that other participant of the legal consequences that would ordinarily follow… ICI v Shatwell: An inference of voluntariness can be drawn where the defendant can establish that proper warning was given of the risk o To amount to volenti in situations of employee-employer the injury must be self inflicted by deliberate conduct; HOL determines the brother’s deliberate conduct was not mere careleness or negligence, but a voluntary assumption of the risk made with full knowledge of the risk of injury.
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