Its a complete notes for general defences of contributory negligence, illegality and volenti, structured in way easily understandable and to use as guidance for essays writing or problem question. Its included recent case and update. All you need to know about in general defences is in one complete...
GENERAL DEFENCE – Is there any defence can raise by D? Titchener v British Railway Board Corr v IBC Vehicles Ltd
C was fully aware of the danger involved in crossing a Volenti did not apply, Corr suicide was not voluntary,
Volenti non fit injuria railway track and by her own admission had taken a chance informed decision taken by him as an adult of sound mind
1. Complete Defence by crossing the line, was held to be volens to the risk. The making giving effect to a personal decision about his future.
courts held that ‘a person who takes a chance necessarily It was response of a man suffering from severely depressive
2. Must be distinguished from the defence of consent consents to what comes’ illness which impaired his capacity to make reasoned and
informed judgement about his future, such illness being, as
Consent - where the claimant has expressly or impliedly McGlone v British Railway Board is accepted, as consequence of the employer’s tort.
authorised the defendant’s act, thereby often Age is relevant. A 12 year-old was held not to be able to
precluding a cause of action in trespass appreciate the risk from live wires. (iii) where the C’s conduct is the very act
c/f which the D was under a duty to prevent
Volenti - operates to absolves the defendant of liability (2) Voluntarily made Reeves v Commissioner of Police
in the event of negligence on part of the defendant. The (a) This means that the C must have had a genuine Act of suicide was not deemed volenti, given the D’s position
claimant in other words voluntarily assumes the risk and choice. Merely continuing to work despite knowing of responsibility and the foreseeability of suicide. The
agrees to not sue the defendant for it should the risk of a risk, for example is insufficient. deceased was known to be a suicide risk.
materialise Smith v Baker
C was given no proper warning of when the crane was in use (3) An agreement
3. ‘[A] claimant who freely and voluntarily incurs a risk of and so was unaware of the danger. He was injured when a (a) there must have been either an express or implied
which he has full knowledge cannot complain of injury crane moved rocks over his head and some fell on him agreement, mere knowledge of risk is not
if the risk materialises and causes him danger.’ - sufficient.
Imperial Chemical Industries Ltd v Shatwell Bowater v Rowley Regis Corp Nettleship v Weston
‘A man cannot be said to be truly willing unless he is in a Where volenti failed to be accepted in the action by driving
4. 3 element to prove by D position to choose freely, and freedom of choice predicates, instructor. Lord Denning explained that nothing short of an
not only full knowledge of the circumstances on which the agreement, express or implied, to waive any legal claim
(1) full knowledge of risk exercise of choice is conditioned, so that he may be able to would suffice.
(a) subjective test, C must actually appreciate the risk choose wisely, but the absence from his mind of any feeling
and willingly accept it. This means that mere of constraint so that nothing shall interfere with the 5. Special Categories
knowledge of it would be insufficient. C must freedom of his will.’ (a) Employees
understand the precise nature of the risk and be - Courts are generally reluctant to uphold the
prepared to run it. (b) A number of factors may work to negative a finding defence of volenti against employees
Stermer v Lawson that the C voluntarily accepted the risk: - Why? employees may continue to expose
C who was loaned a motorcycle but not shown how to use it (i) Any precautionary steps taken by the C themselves to the risk associated with
could not have been volens as he could not have appreciated before engaging in the D’s activity, employment for fear of losing their jobs or may
the risk involved Nettleship v Weston undertake the risk due to economic pressures, see:
c/f C was, prior to teaching the D to drive, shown a Smith v Baker
Morris v Murray comprehensive insurance policy which covered passengers - NB: where the employee disregards the
C who had been drinking knowingly and willingly embarked employer’s instructions and statutory safety
on a flight with a drunken pilot (ii) Where the C commits suicide, especially regulations the defence will apply, see: ICI Ltd v
in cases where the C was not of sound Shatwell
mind
, (b) Rescuers Where any person suffers damage as the result partly of his (b) It is necessary that the C’s conduct contributed to
- the defence is not applied to rescuers as a matter own fault and partly of the fault of any other person or his loss. It may, or may not, have contributed to the
of policy persons, a claim in respect of that damage shall not be event or accident itself. This can take the form
- the courts are mindful of not wanting to deter defeated by reason of the fault of that person suffering the putting himself in a situation in which harm is more
people from acting as rescuers damage, but the damages recoverable in respect thereof likely.
- therefore, the defence of volenti will not apply who shall be reduced to such extent as the court thinks just and [E.g. a claimant’s failure to wear a seatbelt
consciously and deliberately takes a risk to rescue equitable having regard to the claimant’s share in the contributes to his injuries being more serious but
someone in imminent danger, see: Haynes v responsibility for the damage. [The defendant in cases has nothing to do with the accident being caused]
Harwood; in Chadwick v British Railways Board where the loss suffered by the claimant is partly due to his
- However, where the claimant takes an own fault] Owens v Brimmell
unnecessary risk, the defence would apply see: C had accepted a lift from drunker driver
Cutler v United Dairies (London) Ltd, where the 3. 3 elements to prove by D
claimant had no reason to assist in the capture of Froom v Butcher
a run-away horse and was seen as taking an (1) Fault on the part of the claimant C’s car was hit owing to the neg driving of the D and his head
unwarranted risk in doing so (a) Fault is defined in S4 of the Act to mean injuries were cause by his deliberate decision not to wear a
seat belt. Held C’s damage were reduced by 20%. Court laid
(c) Sports Any act of negligence, breach of statutory duty or any other down guideline for the reduction of damages according to
- participants in sporting events are taken to have act or omission capable of giving rise to liability in tort the extent to which the injury would have been prevented by
accepted the risk inherent in the sport, see: Simms wearing seat belt.
v Leigh Rugby Football Club; Wooldridge v (b) Many cases, C has committed careless act or (a) If the whole injury, deduction should be 25%
Sumner omitted to take precautions for his own safety. (b) If a portion of injury, deduction should be 10%
- however, where the defendant has clearly been Court noted they will TIA effect on workers of (c) If a seat belt would have made no difference, then no
negligent and has acted in a way in which other factors such as noise, distraction, tiredness and deduction should be made.
players cannot be expected to have consented, boredom.
there may be liability, see: Smoldon v Whitworth Stapley v Gypsum Mines (c) Froom guideline are generally adhered to and 25%
– where a referee at a youth rugby game was liable A miner had continued working in unsafe condition contrary is most common reduction, although it is varied in
for failing to prevent the collapse of a scrum. The to his employer’s instructions. some circumstance
defendant was in breach of duty – players cannot Gregory v Kelly
be said to have consented to such breach (2) Causation and comparative blameworthiness C who declined to wear a seat belt knew that the car had no
(a) Damages caused was within the foreseeable risk of operative brake pedal and the reduction in his damages was
(d) Drunk driver’s passengers the neg conduct. 40%.
- s149(3) Road Traffic Act 1988 states that the Jones v Livox Quarries
defence of volenti is not available against C was ridding on a towbar on the back of vehicle, which was (3) Apportionment
passengers of a drunk driver in circumstances forbidden by his employer. C was hit from behind by a lorry
where third party insurance is compulsory. and injured, C argued that the danger from his behaviour (a) The Act states damages are to be apportioned by
was only of falling off, but this narrow view was rejected by an amount which is just and reasonable having
Contributory Neg the court and his damages were reduced. Has he, however, regard to the respective fault of the parties
1. Partial Defence been shot while riding, then contributory neg would not involved.
have applied. Stapley v Gypsum Mines Ltd
2. Governed by S1(1) Law Reform (Contributory Indicate that this will be based on a combination of
Negligence) Act 1945 blameworthiness (how far did the C’s act fall below the std
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