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Defences to Negligence
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Lecture notes on the various defences to negligence
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Tort LectureWeek 5
DEFENCES
➔ Even if a claimant establishes all the elements of their claim, their action may still be defined partially or in full
if the defendant is able to rely upon a defence
➔ The defences that apply to the law of negligence include:
◆ volenti non fit injuria
● ‘No wrong is done to one who consents’
● complete defence
◆ illegality (ex turpi causa)
● complete defence
◆ Contributory Negligence
● claimant contributed to harm suffered
VOLENTI NON FIT INJURIA: KEY ELEMENTS
➔ Smith v Baker [1891] - ‘one who has invited or assented to an act being done towards him cannot, when he
suffers it, complain of it as a wrong’
➔ Explicit consent or tacit acceptance of the harm or risk of harm
➔ Must show (subjectively):
1. Knowledge of the nature and extent of the risk of harm
2. Voluntary acceptance of it
TWO ELEMENTS OF VOLENTI NON FIT INJURIA
➔ Firstly need to establish whether claimant had knowledge of the potential risk of the injury
◆ Dann v Hamilton [1939]
● claimant and defendant had been drinking together
● defendant drove them both home
● defendant crashed
● defendant was killed, claimant seriously injured
● claimant was aware of the danger, this did not go so far as to demonstrate an acceptance
or consent to the risk of being injured
● knowing that you are engaging in a risky activity is not sufficient in and of itself
◆ Nettleship v Weston [1971]
● the court noted the knowledge of the risk of injury isn’t enough nor is there willingness to
take the risk of injury
● nothing short of an agreement to waive the claim of negligence will suffice
➔ Also need to establish acceptance of that risk
◆ Morris v Murphy [1991]
● the claimant and defendant had been getting drunk together
● they decided that they would go fly an aeroplane
● during the flight, the defendant crashed the plane and the claimant was seriously injured
● the court accepted that, not only was the claimant aware of the risks involved, they had
also voluntarily assumed the risk of injury
, ● wasn’t sufficient in this case to argue that he was so drunk as not to appreciate the extent
or the nature of the risk
● claimant’s actions taken to enter the plane were sufficient to demonstrate an acceptance of
the risk of injury, thereby consenting to it
◆ Condon v Basi [1985]
● footballer injured as a result of a reckless tackle
● court considered how the role of consent was relevant to sportspersons
● court recognised that a footballer can consent to being tackled but not to dangerous
tackling which went beyond the rules of the game
● when it comes to sport, the court accepts that the claimant will voluntarily accept some risk
of injury provided that it is within the rules of the sport
ILLEGALITY
➔ Prohibits recovery for
◆ (a) recovery for consequences of criminal sanction
◆ (b) for losses suffered through engagement in criminal activity
➔ The defence of illegality (also known as ex turpi causa non oritur actio - ‘an action cannot be founded on a
case cause’)
➔ Complete defence
➔ Gray v Thames Trains [2009]
◆ claimant suffered PTSD after being involved in a train crash
◆ they later went on to kill a pedestrian
◆ claimed loss of earnings during their detention
◆ claim was rejected on the grounds that to award damages would set the civil law against the criminal
law
KEY ELEMENTS OF ILLEGALITY
➔ 1. There must be a strong link between the criminal conduct of the claimant and the loss suffered
◆ Vellino v Chief Constable of the Greater Manchester Police [2001]
● a man jumped from a second story window trying to escape arrest
● went on to sue police for his injuries, claiming that they had been negligent in their pursuit
of him
◆ Delaney v Pickett [2011]
● claimant was injured when the defendant crashed the car that they were both in
● when stopped, the claimant was found to have a large amount of cannabis with him
● at first instance, it was held that recovery was to be barred on the basis of illegality because
of the fact that the claimant had cannabis on him
● no claim
● CoA overruled this finding, stating that the injury did not stem from the illegal act, it was
ancillary to it. Claimant was not injured through their illegal act
➔ 2. The criminal conduct must be serious
◆ ‘Public Conscience’ Test, Pitts v Hunt [1991]
● D and C had been drinking together
● both set off on D’s motorcycle w C riding pillion
● all 3 members of the CoA were clear that the illegality defence should apply
● Lord Justice Dylan was satisfied that the injury was caused directly by the illegal act
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