P does not need to know the exact way in which the d

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P does not need to know the exact way in which the D will cause the harm. The court is willing to infer first two elements in an appropriate case. Element 3 Element 3a - The plaintiff must have voluntarily accepted the risk which actually caused her injury P had to accept a risk that did eventuate. It is not enough that they accepted a risk that did not eventuate. Rootes v Shelton (1967) 116 CLR 383 (CB 423) P was water skiing and injured when he collided with a stationary boat. He was being towed by a another boat driven by D. He argued D should have taken care not to drive near the boat. D said that water skinning involves risks that are voluntarily assumed. The court said that volenti applies up to a point , that is risks associated with water skiing such as hitting a submerged object. However the risk of hitting a stationary boat which the driver of the boat should have informed the skier is not voluntarily assumed. Risks will be characterized fairly broadly, the court will not get into a fine grain analysis. EG: The accident scenario, accident must be due to risk assumed and not another risk. If someone accepts a lift from a drunk driver but the car crashes due to mechanical problems then the passenger will not be taken to have voluntarily assumed the risk. Element 3b - The assumption of risk is voluntary only if there was no pressure on the plaintiff to accept the risk Q: What amounts to a voluntary acceptance of risk? 36
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A: The assumption of risk is voluntary only if there was no pressure on the plaintiff to accept the risk - ICI (Imperial Chemicals Industries Ltd) v Shatwell [1965] AC 656 (CB 412) and; Dixon J Insurance Commissioner v Joyce (1948) 77 CLR 39 (CB 417) The assumption of the risk will not be voluntary if the D was acting under pressure caused by the D’s negligence. EG: P rushes in to rescue someone injured by the D’s negligence. The defense will be rarely used in an employment context . The courts take the view that social and economic pressures prevent employees from being free to decide whether to accept the risk or not. – ICI Exception to Employee – Employer ICI (Imperial Chemicals Industries Ltd) v Shatwell [1965] AC 656 (CB 412) P and his brother worked for D in a quarry, job involved detonating explosives. P and brother used a procedure prohibited by statute and by employer for being unsafe. P knew all this and knew that another employee had been fired for using the procedure. He did it and he and his brother where injured. He sued D for negligence. P argued that D was vicariously liable for brothers injury. D argued volenti. The court agreed with vicarious liability, and employer cannot use volenti when being sued by employer. The P was not forced and did so of his own volition. Volenti was made out, D was not held liable. Obvious Risks Wrongs Act , s 54 (1) - If a defence of voluntary assumption of risk is raised and the risk of harm is an obvious risk, the person who suffered harm is presumed to have been aware of the risk, unless s/he proves on the balance of probabilities that s/he was not aware of the risk Element 1 and 2: In the case of obvious risks burden of proof reversed, being on the plaintiff that is.
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