Sciens

Last updated February 21, 2019

In law, sciens, the Latin word for "knowlingly",^[1] describes a state of mind. It refers to knowledge of a fact, usually of a specific risk. It is usually pleaded by way of defence. For example, where a claimant suffers a personal injury, the respondent to the claim may aver that the claimant was aware of the risk when they undertook their course of conduct. Clauses in contracts which require participants in dangerous sports to acknowledge certain risks in the sport are usually drafted to set up a potential sciens defence.

Law is a system of rules that are created and enforced through social or governmental institutions to regulate behavior. It has been defined both as "the Science of Justice" and "the Art of Justice". Law is a system that regulates and ensures that individuals or a community adhere to the will of the state. State-enforced laws can be made by a collective legislature or by a single legislator, resulting in statutes, by the executive through decrees and regulations, or established by judges through precedent, normally in common law jurisdictions. Private individuals can create legally binding contracts, including arbitration agreements that may elect to accept alternative arbitration to the normal court process. The formation of laws themselves may be influenced by a constitution, written or tacit, and the rights encoded therein. The law shapes politics, economics, history and society in various ways and serves as a mediator of relations between people.

In law as practiced in countries that follow the English models, a pleading is a formal written statement of a party's claims or defenses to another party's claims in a civil action. The parties' pleadings in a case define the issues to be adjudicated in the action.

In civil proceedings and criminal prosecutions under the common law, a defendant may raise a defense in an attempt to avoid criminal or civil liability. Besides contesting the accuracy of any allegation made against them in a criminal or civil proceeding, a defendant may also make allegations against the prosecutor or plaintiff or raise a defense, arguing that, even if the allegations against the defendant are true, the defendant is nevertheless not liable.

Extent of the defence

In most countries, the defence is a limited one, and is ordinarily only effective (if at all) where the claimant, despite being sciens, still undertakes the risk. The common law says that "volenti non fit injuria" ("free will does not make an injury"). In such instances, the claimant is said to be volens (voluntarily assuming the risk), and merely being sciens alone is normally insufficient. For example, if the claimant had to exit a grocery store, and there was a sign warning of a wet floor by the exit, it is not usually a defence to say that the claimant knew of the risk of the wet floor, if the claimant had no other way to leave the store, and thus had to walk across the slippery surface in any event.

In law, common law is that body of law derived from judicial decisions of courts and similar tribunals. The defining characteristic of “common law” is that it arises as precedent. In cases where the parties disagree on what the law is, a common law court looks to past precedential decisions of relevant courts, and synthesizes the principles of those past cases as applicable to the current facts. If a similar dispute has been resolved in the past, the court is usually bound to follow the reasoning used in the prior decision. If, however, the court finds that the current dispute is fundamentally distinct from all previous cases, and legislative statutes are either silent or ambiguous on the question, judges have the authority and duty to resolve the issue. The court states an opinion that gives reasons for the decision, and those reasons agglomerate with past decisions as precedent to bind future judges and litigants. Common law, as the body of law made by judges, stands in contrast to and on equal footing with statutes which are adopted through the legislative process, and regulations which are promulgated by the executive branch. Stare decisis, the principle that cases should be decided according to consistent principled rules so that similar facts will yield similar results, lies at the heart of all common law systems.

In law, volens is a state of mind, referring to voluntary acceptance of a specific risk. It is usually pleaded by way of defence, and often employs the legal Latin volenti non fit injuria. The term volens itself is often used in contradistinction to the terms sciens.

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At common law, damages are a remedy in the form of a monetary award to be paid to a claimant as compensation for loss or injury. To warrant the award, the claimant must usually show that a breach of duty has caused foreseeable loss. To be recognised at law, the loss must involve damage to property, or mental or physical injury; pure economic loss is rarely recognised for the award of damages.

Negligence is a failure to exercise appropriate and or ethical ruled care expected to be exercised amongst specified circumstances. The area of tort law known as negligence involves harm caused by failing to act as a form of carelessness possibly with extenuating circumstances. The core concept of negligence is that people should exercise reasonable care in their actions, by taking account of the potential harm that they might foreseeably cause to other people or property.

A tort, in common law jurisdictions, is a civil wrong that causes a claimant to suffer loss or harm resulting in legal liability for the person who commits the tortious act.

In English civil litigation, costs are the lawyers' fees and disbursements of the parties.

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English tort law concerns the compensation for harm to people's rights to health and safety, a clean environment, property, their economic interests, or their reputations. A "tort" is a wrong in civil, rather than criminal law, that usually requires a payment of money to make up for damage that is caused. Alongside contracts and unjust enrichment, tort law is usually seen as forming one of the three main pillars of the law of obligations.

Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 is an English tort law case that lays down the typical rule for assessing the appropriate standard of reasonable care in negligence cases involving skilled professionals : the Bolam test. Where the defendant has represented him- or herself as having more than average skills and abilities, that is as a professional "as all doctors do", this test expects standards which must be in accordance with a responsible body of opinion, even if others differ in opinion. In other words, the Bolam test states that "If a doctor reaches the standard of a responsible body of medical opinion, he is not negligent".

A slip and fall injury, also known as a trip and fall, is a premises liability claim, a type of personal injury claim or case based on a person slipping on the premises of another and, as a result, suffering injury. It is a tort. A person who is injured by falling may be entitled to monetary compensation for the injury from the owner or person in possession of the premises where the injury occurred.

Volenti non fit iniuria is a common law doctrine which states that if someone willingly places themselves in a position where harm might result, knowing that some degree of harm might result, they are not able to bring a claim against the other party in tort or delict. Volenti applies only to the risk which a reasonable person would consider them as having assumed by their actions; thus a boxer consents to being hit, and to the injuries that might be expected from being hit, but does not consent to his opponent striking him with an iron bar, or punching him outside the usual terms of boxing. Volenti is also known as a "voluntary assumption of risk."

Causation in English law concerns the legal tests of remoteness, causation and foreseeability in the tort of negligence. It is also relevant for English criminal law and English contract law.

In the English law of negligence, the acts of the claimant may give the defendant a defence to liability, whether in whole or part, if those acts unreasonably add to the loss.

In English law, a nervous shock is a psychiatric illness or injury inflicted upon a person by intentional or negligent actions or omissions of another. Often it is a psychiatric disorder triggered by witnessing an accident, for example an injury caused to one's parents or spouse. Although the term "nervous shock" has been described as "inaccurate" and "misleading", it continues to be applied as a useful abbreviation for a complex concept. The possibility of recovering damages for nervous shock, particularly caused by negligence, is strongly limited in English law.

Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22 is a leading case on causation in English tort law. It concerned malignant mesothelioma, a deadly disease caused by breathing asbestos fibres. The House of Lords approved the test of "materially increasing risk" of harm, as a deviation in some circumstances from the ordinary "balance of probabilities" test under the "but for" standard.

Barker v Corus (UK) plc [2006] UKHL 20 is a notable House of Lords decision in the area of industrial liability in English tort law, which deals with the area of causation. In this case, the House of Lords reconsidered its ruling in the earlier landmark case Fairchild v Glenhaven Funeral Services Ltd concerning the liability of multiple tortfeasors.

The Occupiers' Liability Act 1984 is an Act of the Parliament of the United Kingdom that covers occupiers' liability for trespassers. In British Railways Board v Herrington 1972 AC 877, the House of Lords had decided that occupiers owed a duty to trespassers, but the exact application of the decision was unclear. The matter was then referred to the Law Commission for a report, and as a result the Occupiers' Liability Bill was introduced to Parliament by Lord Hailsham on 23 June 1983. The Act was given the Royal Assent on 13 March 1984 as the Occupiers' Liability Act 1984 and came into force on 13 May.

The English law of unjust enrichment is part of the English law of obligations, along with the law of contract, tort, and trusts. The law of unjust enrichment deals with circumstances in which one person is required make restitution of a benefit acquired at the expense of another in circumstances which are unjust.

Bailey v Ministry of Defence [2008] EWCA Civ 883 is an English tort law case. It concerns the problematic question of factual causation, and the interplay of the "but for" test and its relaxation through a "material contribution" test.

The Law Reform Act 1945 is an Act of Parliament of the United Kingdom, which allows a judge to apportion liability for compensatory damages as he feels to be "just and equitable" between a tortfeasor and an injured person who was partly to blame. Section 1(1) of the Act provides:

"Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person(s), a claim in respect of that damage will not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage."

Trespass in English law is an area of tort law broadly divided into three groups: trespass to the person, trespass to goods and trespass to land.

References

↑ "sciēns" . Retrieved 2012-04-29.

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[1] "sciēns" . Retrieved 2012-04-29.