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Held no volenti p must know of the risk ought to know

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HELD: No volenti. P must know of the risk – ought to know is not enough. ICI v Shatwell (HC) FACTS: 2 brothers (George and James) were employed by D to work in a quarry as shot firers. P’s were given safety instructions but decided not to use them. They were both injured, one seriously. George sued D fro vicarious liability of James’ negligence. James relied on the volenti defence. HELD : Volenti available. There was genuine full agreement to assume the risk of harm free of pressure . If the consent was obtained by pressure, volenti wouldn’t stand. Rootes v Shelton (HC) FACTS: P went waterskiing and started zigzagging. P crashed into a boat because D negligently drove too close to it HELD: No volenti It is not enough to agree to do something dangerous . The plaintiff must assume the danger that will occur and fully appreciate what the danger means .
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ILLEGALITY Kent v Scattini FACTS: P was out having a water fight with friends. They got in one car and chased another car of friends. Negligent driving caused a crash. HELD: No volenti. P consented to a water fight and getting wet. Did not consent to negligent driving. Insurance Commissioner v Joyce FACTS: P and D left the house in D’s car to go and pick up wife. They never showed up and were found crashed and drunk. P sued D in negligence. Latham: action in negligence against a drunk driver can fail due to defences of contributory negligence , volenti and no DOC (reasonable drunk driver). Dixon: o No DOC defence = P must have knowledge of the drunkenness. o Volenti = P must have knowledge and a real and practical choice. o Contributory negligence = P must know or ought to know. Henwood v Municipal Tramways Trust FACTS: P’s son was on a tram. He felt sick so put his head out of the window to vomit. His head hit a pole. P sued Tramways for negligently making the windows a bad size. Tramways said that the boy was doing something illegal by putting his head out. Illegality is not a conclusive defence. If it does succeed, it is a complete offence. It will arise where: o Statute expressly/impliedly indicates that the P should not be able to succeed. o Where court finds it impossible or refuses to set a standard of care for policy reasons. Courts unlikely to set standard in joint illegal enterprise. Courts do not want to interfere with criminal law. What is a reasonable criminal? Gala v Preston FACTS: 4 men went to the pub and drank a shite load. They stole a car and started driving to QLD. The driver fell asleep killed one passenger and injured the other. P sued D and car owner. HELD: 4/7 judges used proximity but still NO DOC. Need to look at the materiality of the conduct and the effect on the criminal law
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Section 14G: In determining breach for personal injury or death claims courts must take into account voluntary use of drugs or alcohol and the degree of intoxication ; and whether the P was engaged in an illegal activity .
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HELD No volenti P must know of the risk ought to know is...

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