While we are often looking at the plaintiff’s side when we discuss personal injury claims, today we will be diving into a defense strategy. Specifically, the defense of the Assumption of Risk. This defense is based on the idea that, if the plaintiff was aware of the risk associated with the defendant’s actions, then they should not be able to recover damages for the injuries resulting from the defendant’s actions, regardless of whether those actions were reckless or negligent in nature.
What It Takes To Make The Assumption of Risk Defense Work
For this defense to work, the defendant and their legal team will need to prove the following:
• The plaintiff’s awareness of the risks associated with the defendant’s behavior or actions
• The plaintiff’s willingness to involve themselves in the situation regardless, i.e. the plaintiff voiced their agreement or physically expressed consent
Simply put, the plaintiff knew of the risks and endangered themselves willingly despite of it. They were in no way forced to put themselves at risk by the defendant or a third party.It should be noted that the inherent danger of the activity needs to have been obvious, otherwise it may be argued that the plaintiff was actually unaware of the risks.
Weak Points of The Assumption of Risk Defense
While the assumption of risk serves to protect the defendant from liability, this defense also has its roots in contract law which naturally gives it certain weak points that can be dug into by the plaintiff and their legal team. For one, the defendant cannot have violated public policy, since their defense may otherwise crumble in on itself. Public policy includes matters such as educating the plaintiff of involved risks, providing them with emergency medical care, and so on.
Furthermore, the defendant cannot have inflicted intentional harm upon the plaintiff. Even if a written contract was signed by the plaintiff, intentional acts of harm covered in the contract will still not be covered by the assumption of risk defense. This means the defendant will still be held liable for their intentionally harmful actions. This is the job of the Personal Injury Lawyer in St John’s and they do their best to help the plaintiff get justice.
Be it a waiver or a full-on contract, if the document was signed by a person unable to fully understand which rights they are giving up, then that document is not legally binding. This means that a person with a mental disability, a severe mental illness, and sometimes also an underage person, cannot be held accountable for signing away their rights. The assumption of risk defense will thus not work against them.