Defences to Negligence Summarised Notes for the Tort Law module, LLB, at City, University of London - can of course be used for other universities as well! Should be used with the full bundle of notes!
CONTRIBUTORY NEGLIGENCE – claimant was at fault
Partial, not complete defence – fault is found on part claimant and D to damage suffered, then
damages reduced to extent thinks just and equitable
Law Reform (Contributory Negligence) Act 1945, s1(1): where any person suffers damage as the
result partly his own fault and partly of the fault of any other person or persons, a claim in respect of
that damage shall not be defeated by reason of the fault of the person suffering the damage…
s.1: damages will be reduced where damage is suffered partly as a result of claimant’s fault both
parties fault must be a cause of damage suffered
Froom v Butcher [1976]
Claimant injured in a car accident due to negligence of D, claimant not wearing a seat belt held
reduced by £100, would have been injured with or without a seat belt
Badger v Ministry of Defence [2005]
Mr Badger died of lung cancer, had been negligently exposed to asbestos at work, he contributed to
cancer by smoking as well, smoke 20 a day from age of 16 held reduced by 20%
Gough v Thorne [1966]
13 year old tried to cross road with brother, lorry stopped for them, waved to indicate it was safe to
cross, D negligently ran over claimant, she assumed it was safe to cross as lorry driver indicated it
was safeheld young child cannot be guilty of contributory negligence
Reeves v Metropolitan Police [2000]
Police cell, officers warned of suicidal, saw doctor who stated no depression, latch open, hung
himself Held police duty to prevent, but 50% due to contributory negligence
CONSENT
Volenti non fit injuria= willing acceptance of risk either expressly or impliedly agreed to take legal
risk no wrong is done to one who consents
Must consent to negligence and not just general risk of injury
Wooldridge v Sumner [1963]: claimant, a photographer seriously injured when D, a participant in a
horse show, rode his horse too fast and veered into the area where the photographer was
standing held no breach of duty, but also no consent as consent needs to be for risk of injury
Morris v Murry [1990]
Claimant and D drinking, D, who had pilot licence suggested take a flight, claimant agreed and drove
them both to airfield, crashed, D killed and claimant seriously injured, autopsy revealed D consumed
17 Whiskeys D raised Volenti Held: allowed, as accepting a ride in an aircraft from an obviously
heavily intoxicated pilot was so glaringly dangerous taken to have voluntarily accepted risk of injury
and waived the right to compensation
Legislation regulates extent to which D can use consent as a defence
Unfair Contract Terms Act 1977, ss.1 and 2; Consumer Rights Act 2015, s.65 and 62
Road Traffic Act 1988, s.149
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