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Causation volenti not fit injuria voluntary

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Causation VOLENTI NOT FIT INJURIA (Voluntary Assumption of Risk) - Volenti is a complete defence . - Must show free and willing consent to encounter the danger ( ICI v Shatwell ). - P must know of the facts constituting the danger ( Scanlon / Rootes ) and understand the danger inherent in the situation. 39 Froom v Butcher FACTS: P was not wearing a seatbelt because he believed it was dangerous (1970’s). P suffered injuries due to P’s driving that he would not have suffered if he had been wearing a seatbelt. HELD: P = 20% liable (lost 20% of compensation). P’s act only needs to contribute to the cause . They applied an objective test – would a reasonable person not wear a seatbelt? No. Pennington v Norris (HC) FACTS: P was knocked down by D’s car at night. D argued that P should’ve looked befor crossing the road. HELD: D 80% liable. Must determine what is just and equitable by comparing both parties conduct. How far did each party depart from the standard? P was careless but it is commonly done and didn’t endanger anyone else. D was driving fact and putting others in danger. Kelly v Bega Valley Country Council (NSW COA) FACTS: An 11 year old boy was electrocuted when he touched a light pole. Trial jury said P was 75% to blame. HELD: P 25% to blame. Can look at: o Intrinsic danger (how many others are at risk). o Duration of the breach (impulse/lengthy period) o Maturity of the actor (kid didn’t know about electricity at the time).
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Section 54(1): Where a defence of volenti is raised and the risk of harm was obvious, the person is presumed to have been aware of the risk unless they can prove on the balance of probabilities that they weren’t. Section 53: An obvious risk – (1) Is a risk that would have been obvious to a reasonable person in the position of the plaintiff; (2) Includes risks that are patent and common knowledge ; (3) Irrelevant if there is a low probability of it occurring; (4) Can still be obvious even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable . Section 55: (1) A person is not liable for the materialisation of an inherent risk. (2) Inherent risks cannot be avoided by the exercise of reasonable care. (3) Does not exclude liability under a duty to warn 40 Scanlon v American Cigarette Company Overseas Pty Ltd FACTS: P smoked since he was 15 and got lung cancer. D argued that she should have known of the risk and voluntary assumed that risk. 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.
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