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Eg p rushes in to rescue someone injured by the ds

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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. Element 3: Not affected. Wrongs Act , s 54 (2) – Sub-section (1) does not apply to: a proceeding relating to the provision of, or the failure to provide, a professional service or health service; or a proceeding in respect of risks associated with work done by one person for another Why? The thought is that these are cases where D has superior knowledge to the P. What obvious to theses D’s may not be obvious to P’s. 37
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What? S54(1) is ignored in the case of professionals, health care services and employees/contractors. What counts as an obvious risk ?. Wrongs Act , s 53 (1) For the purposes of s 54, an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person. Reasonable person test. Objective test. What would a reasonable person in P’s position have done?. Wrongs Act , s 53 (2) Obvious risks include risks that are patent or a matter of common knowledge. Includes denotes not limited. Wrongs Act , s 53 (3) A risk can be obvious even if it has a low probability of occurring. EG: Russian roulette, low risk but obvious. Wrongs Act , s 53 (4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable. Physically observable
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EG P rushes in to rescue someone injured by the Ds...

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