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Volenti non fit injuria

Perrett v Sydney Harbour Foreshore Authority & Anor; Wine & Vine Personnel PL v Sydney Harbour Foreshore Authority & Anor [2009] NSWSC 1026. McCallum J.

“If it is concluded that the duty of care has been breached, only then does it become necessary to consider any substantive defences relied upon by the defendants. If that point is reached, one of the elements of the defence of voluntary assumption of risk … is that the plaintiff was aware of the relevant risk. Section 5G of the CLA [Injured persons assumed to be aware of obvious risks] is an aid to proof of that element of the defence, if the risk was obvious within the meaning of s 5F, but does not, in my view, create a discrete statutory defence.” [40]

Carey at [85] exposed three necessary elements of volenti:

1. plaintiff perceived existence of danger;

2. plaintiff fully appreciated danger;

3. plaintiff freely and voluntarily agreed to accept the risk.

Extract: Obvious comes second 39 WCMS 2

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