Consent (AQA A-Level Law): Revision Notes
Consent
Consent is a complete defence in tort law, also known by its Latin name volenti non fit injuria. When this defence succeeds, the defendant is absolved of all legal responsibility for their actions. The claimant must have freely and voluntarily agreed to accept the risk, with full knowledge of what they were consenting to.
This defence operates on the principle that if someone willingly accepts a known risk, they cannot later claim damages if that risk materialises and causes them harm.
Elements of consent
For the defence to succeed, three key elements must be satisfied. Each element plays a distinct role in establishing whether the claimant genuinely accepted the risk.
Voluntary agreement
The claimant's agreement must be genuinely voluntary and freely given. If the claimant was not in a position to exercise real choice, the defence will fail. This requirement recognizes that some situations involve unequal bargaining power or circumstances where refusing to accept risk is not a realistic option.
This element is particularly important in:
- Employment relationships – employees may feel pressured to accept risks to keep their jobs
- Rescue situations – rescuers act under moral or professional compulsion
- Suicide cases – questions arise about voluntary acceptance of risk
Agreement to accept legal risks
Consent may be communicated either expressly or impliedly. An implied agreement exists where the claimant demonstrates willingness to accept not just the physical risks, but also the legal consequences of those risks.
In Nettleship v Weston (1971), Lord Denning clarified the high threshold required:
Knowledge of the risk of injury is not enough. Nothing will suffice short of an agreement to waive any claim for negligence. The claimant must agree expressly or impliedly to waive any claim for any injury that may befall him due to the lack of reasonable care by the defendant: or more accurately due to the failure by the defendant to measure up to the duty of care which the law requires of him.
Simply being aware of a danger does not constitute consent. The claimant must have agreed to give up their legal right to sue, not merely accepted that injury might occur. This is a critical distinction that often determines whether the defence succeeds or fails.
Leading Case: Smith v Charles Baker and Sons (1891)
Workers were loading stones into a steam crane that swung over the area where the claimant was working. When a stone fell and struck him on the head, the employer argued he had consented to the risk.
The Court's Decision: The court rejected this defence, holding that while the claimant may have been aware of the danger, he had not agreed to waive his right to expect reasonable care.
Key Principle: In employment situations, knowing a danger exists is fundamentally different from agreeing to accept negligent conduct.
Knowledge of the risk
The claimant must have possessed knowledge of the full nature and extent of the risk they were running. Partial or incomplete understanding is insufficient.
Morris v Murray (1991)
After drinking heavily all day, the claimant accepted a flight with the defendant, a pilot who was also intoxicated. The aircraft crashed shortly after takeoff, seriously injuring the claimant.
The Court's Decision: The court held that the risk of flying with an obviously drunk pilot was so glaringly obvious and dangerous that the claimant could be taken to have voluntarily accepted it. The defence of consent succeeded.
However, certain categories of people are not regarded as freely accepting risk:
Rescuers and Consent
Rescuers do not freely accept risk because they act under moral or professional compulsion.
In Haynes v Harwood (1935), the defendant left a horse-drawn van unattended in a crowded street. When the horses bolted, a police officer was injured attempting to stop them to protect a woman and children in their path. The defence of consent failed because rescuers cannot be said to act voluntarily when responding to emergencies created by the defendant's negligence.
Key Point: The law recognizes that rescuers respond to emergencies out of duty or instinct, not free choice.
Sports Participants and Consent
Sports participants consent to risks inherent in the normal playing of their sport, but not to risks created by conduct outside the rules.
In Condon v Basi (1985), a footballer's leg was broken during a tackle. The court held that while players accept the ordinary risks of sporting contact, they do not consent to injury caused by illegal or reckless play that violates the rules of the game.
Key Distinction: Players accept normal sporting risks but not injury from rule violations.
Consent and occupiers' liability
The application of consent differs slightly under the Occupiers' Liability Acts. Section 2(5) of the Occupiers' Liability Act 1957 and section 1(6) of the Occupiers' Liability Act 1984 state that occupiers owe no duty regarding risks willingly accepted by visitors.
Under these statutory provisions, there is no requirement to establish an agreement to waive legal rights—knowledge and voluntary acceptance of the physical risk is sufficient. This is a lower threshold than the common law defence.
Titchener v British Railways Board (1983)
The claimant was injured while trespassing on a train line.
The Court's Decision: The court held that she was fully aware of the obvious danger of crossing railway tracks, so she must be taken to have consented to assuming that risk. The statutory defence succeeded even without evidence that she had agreed to give up her legal rights.
Key Principle: Under occupiers' liability legislation, mere knowledge and voluntary acceptance of physical risk is enough—no need to prove agreement to waive legal rights.
Exam guidance
This content will be assessed in Paper 1: The Nature of Law and the English Legal System, and Contract and Tort Law.
In problem questions on negligence, consider whether consent might apply if:
- The claimant voluntarily participated in a dangerous activity
- Evidence shows the claimant understood the specific risks involved
- The situation involves employment, rescue, or sporting contexts
Remember to analyze all three elements separately. The defence often fails because while the claimant knew about the risk (knowledge), they did not agree to waive their legal right to sue (agreement).
For evaluation questions, consider:
- Whether the defence creates appropriate balance between personal autonomy and protection
- The particular difficulties in employment contexts where bargaining power is unequal
- The policy reasons for treating rescuers differently
- Whether the distinction between physical and legal risk acceptance is too technical
Key Points to Remember:
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Consent (volenti non fit injuria) is a complete defence – if successful, the defendant has no liability whatsoever
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Three elements must all be satisfied: voluntary agreement, agreement to accept legal risks, and knowledge of the risk
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Knowing about a risk is not the same as consenting to it – the claimant must agree to waive their legal right to sue, not merely accept that injury might happen
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Employment contexts create particular difficulties – employees may not be truly free to refuse dangerous work
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Rescuers do not freely accept risk – they act under compulsion when responding to emergencies
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Sports participants consent to normal sporting risks – but not to injury caused by conduct outside the rules of the game
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Under occupiers' liability legislation, consent operates differently and does not require proof of agreement to waive legal rights