Negligence - General Defences

Front 1

Volenti non fit injuria

Back 1

"That to which a man consents cannot be considered an injury."

In order to succeed, the defendant must show that the claimant:

1. knew of the nature and extent of the risk; and

2. voluntarily agreed to the risk of being injured by the defendant; and in some cases

3. voluntarily agreed that there should be no legal liability for this.

It is a complete defence.

Front 2

Morris v Murray 1991

Back 2

Volenti - The claimant must know of the risk and its extent before they can be said to be volens. This is subjective.

Agreement to run a risk may be express or implied from the circumstances of the case, but again it requires more than knowledge of the risk. Volenti is a difficult defence to establish and is really only likely to succeed where the defendant can point to a clear agreement between the parties. Critics argue that the defence has no logic, since if the agreement occurs before the defendant acts negligently, the claimant could not have appreciated the extent of the risk, and if it occurs after the negligence, then this is evidence of contributory negligence on the part of the claimant.

Here, the plaintiff accepted a lift with a drunken pilot. The plaintiff was drunk as well and this had to be taken account of by the court in determining whether he appreciated the danger involved. The risk of injury was so great as to be the equivalent of 'meddling with an unexploded bomb'. Therefore, an implied agreement to run the risk of injury could be established.

Front 3

Bowater v Rowley Regis Corporation 1944

Back 3

Agreement to risk must be voluntary: a claimant can only be volens if they acted voluntarily.

Must be able to choose freely, with full knowledge of circumstances and absence of any feeling of constraint.

Front 4

Smith v Charles Baker & Sons 1891

Back 4

Agreement to risk must be voluntary: a claimant can only be volens if they acted voluntarily.

It was stressed that the requirement of voluntary consent was in addition to knowledge of the risk. Employees who know of the risks of their jobs are not necessarily voluntarily running those risks, since they may have little real option if they wish to keep their job.

Front 5

Hall v Brooklands Auto Racing Club 1933

Back 5

Agreement to risk must be voluntary: a claimant can only be volens if they acted voluntarily.

Consent may be given expressly, e.g. a written agreement, or by implied conduct, e.g. sporting events.

Here, the plaintiff was injured while watching a race. The plaintiff's claim failed because 'the type of danger to spectators was inherent in the sport and the plaintiff must be taken to have assented to the risk of such an accident.

Front 6

Kirkham v Chief Constable of Greater Manchester 1990

Back 6

Volenti: The claimant must possess the mental capacity to consent.

Here the defence of consent, when a prisoner committed suicide in police custody, failed. The prisoner was not of sound mind.

Front 7

Reeves v Commissioner of Police of the Metropolis

Back 7

Volenti: The claimant must possess the mental capacity to consent.

As ageneral rule, where courts are unwilling to apply the defence of volenti, they apply thedefence of contributory negligence.

Here the police were aware that the prisoner was at a suicide risk. Having confirmed that the police owed a duty of care to the prisoner to prevent him from committing suicide, the House of Lords stated that the defendants could not use an argument of volenti in relation to the deceased's action in killing himself, as this was the very action that they were required by their duty of care to prevent.

The Houseof Lords confirmed that the defence of volenti and the principle of novus actus interveniens didnot apply where the police authority was in breach of its duty to take reasonable care toprevent a prisoner, who was of sound mind but known to be a suicide risk, from taking his lifewhile in police custody. However, the deceased’s deliberate act of suicide amounted tocontributory negligence under the Act and damages were reduced (50 per cent) accordingly.

Front 8

Haynes v Harwood 1935

Back 8

The defences of consent will not apply where the claimant, acting under a legal, moral or social duty, has deliberately faced a risk in order to rescue another from imminent danger of personal injury or death.

Here, the defendant's horse injured the plaintiff, a police officer, who was trying to stop the horse bolting. The plaintiff's claim succeeded.

Front 9

Cutler v United Dairies 1933

Back 9

The defences of consent will not apply where the claimant, acting under a legal, moral or social duty, has deliberately faced a risk in order to rescue another from imminent danger of personal injury or death.

Here, the horse had come to rest and posed no danger. The plaintiff, a passer by, lost their claim.

Front 10

Nettleship v Weston 1971

Back 10

Agreement to run a risk may be express or implied from the circumstances of the case, but again it requires more than knowledge of the risk. Volenti is a difficult defence to establish and is really only likely to succeed where the defendant can point to a clear agreement between the parties. Critics argue that the defence has no logic, since if the agreement occurs before the defendant acts negligently, the claimant could not have appreciated the extent of the risk, and if it occurs after the negligence, then this is evidence of contributory negligence on the part of the claimant.

Here, the plaintiff was a driving instructor who sued his pupil for injuries caused by the pupil's negligent driving. The fact that he knew she was a learner driver did not mean he agreed to being injured by her.

Front 11

Dann v Hamilton 1939

Back 11

Agreement to run a risk may be express or implied from the circumstances of the case, but again it requires more than knowledge of the risk. Volenti is a difficult defence to establish and is really only likely to succeed where the defendant can point to a clear agreement between the parties. Critics argue that the defence has no logic, since if the agreement occurs before the defendant acts negligently, the claimant could not have appreciated the extent of the risk, and if it occurs after the negligence, then this is evidence of contributory negligence on the part of the claimant.

Here, the plaintiff accepted a lift with someone he knew to be drunk. Again, there was no volenti since there was knowledge of the risk of injury, but no implied agreement to it unless the risk was so extreme that it was the equivalent of 'meddling with an unexploded bomb'.

Front 12

Ratcliffe v McConnell 1999

Back 12

Agreement to run a risk may be express or implied from the circumstances of the case, but again it requires more than knowledge of the risk. Volenti is a difficult defence to establish and is really only likely to succeed where the defendant can point to a clear agreement between the parties. Critics argue that the defence has no logic, since if the agreement occurs before the defendant acts negligently, the claimant could not have appreciated the extent of the risk, and if it occurs after the negligence, then this is evidence of contributory negligence on the part of the claimant.

Here, a drunken student dived into a swimming pool not having checked its depth. The risk of injury was so great as to be the equivalent of 'meddling with an unexploded bomb'. Therefore, an implied agreement to run the risk of injury could be established.

Front 13

Sacco v Chief Constable of South Wales Constabulary 1998

Back 13

Here a 17-year-old claimant hit his head having jumped from a police van. His drunken state did not negate the defence of volenti. The risk of injury was so great as to be the equivalent of 'meddling with an unexploded bomb'.

Front 14

Johnstone v Bloomsbury AHA 1991

Back 14

Limits on volenti:

1. Consent may be negated by statute: s149 of the Road Traffic Act 1988 prevents the use of volenti as a defence by motorists against their passenders (i.e. a drunk driver cannot rely on the defence of volenti to defeat the claim of a passenger who voluntarily accepts a life from him and is injured as a result.)

2. s2 of the Unfair Contract Terms Act 1977 prevents the use of contract terms, notices or other means of limiting or excluding liability for death or personal injury and permits exclusion for other damage only in so far as it is reasonable. The Act applies to all those acting in the course of business s1(3).

Here, a junior doctor claimed compensation for damage to his health through working long hours. He had contractually agreed to do this but the Court of Appeal suggested that such terms, which purported to make volens, were subject the the Unfair Contract Terms Act.

Front 15

Contributory Negligence

Back 15

s1 Law Reform (Contributory Negligence) Act 1945 - provides that if a person suffers damage partly through his own fault and partly through the fault of another, his damages are to be reduced to the extent that the court considers is just and equitable.

Fault is defined in s4 as 'negligence, breach of statutory duty or other act or omission which gives rise to liability in tort.'

Front 16

Jones v Livox Quarries 1952

Back 16

Contributory negligence: the claimant is only contributorily negligent if his injuries are caused by the risk he himself was running.

The plaintiff was riding on the tow bar of a vehicle when it was involved in an accident. His being in a dangerous position was regarded as fault. He should have foreseen that he might get hurt.

Front 17

Cavendish Funding Ltd v Henry Spencer & Sons Ltd 1998

Back 17

The method of determining contributory negligence can be clearly seen in economic loss cases such as this where an obviously incorrect valuation by the defendants should have put the plaintiff on alert to request more detail.

Front 18

Platform Home Loan Ltd v Oyston Shipways Ltd & Others 1998

Back 18

Contributory negligence: The claimant is required to take the same degree of care that a reasonable and prudent man would take. The standard is objective, and the claimant's own personal beliefs are disregarded. The standard is, therefore, exactly the same as the standard applied in determining breach of duty.

Here, it applied the defence to pure economic loss.

Front 19

Froom v Butcher 1976

Back 19

Contributory negligence: The claimant's fault must contribute to the injury, although it need not contribute to the accident.

It does not matter that the claimant has not broken the law.

If it is established that the claimant is at fault, the court will take account of this by making areduction from the sum of damages to be awarded to the claimant.

Here, even though the wearing of seat belts was not compulsory, the plaintiff was contributorily negligent for failing to wear one since it was imprudent, and the failure to wear the belt contributed to the plaintiff's injuries.

Lord Denning suggested a reduction of 25 per cent if thewearing of the seat belt would have avoided injury and 15 per cent if it would have reducedit.

Front 20

Jones v Boyce 1816

Back 20

Contributory Negligence: Allowances are made for the claimant who has been placed in an emergency or difficult dilemma.

Here, a runaway horse and carriage case, the plaintiff's decision to jump from it was not contributorily negligent. The defendant could not criticise the plaintiff's attempts to avoid the danger created by the defendant.

Front 21

Gough v Thorne 1966

Back 21

Contributory Negligence: In cases where the claimant is a child, the court will take into account their age in determining the standard of care to be expected.

Here, a 13-year-old girl was hit by a lorry driven by the defendant whilst crossing a road. Earlier, a driver had indicated to her that the road was safe to cross. The court held that, taken into account her age, she had not contributed to her own injuries.

Front 22

Yachuk v Oliver Blais Co Ltd 1949

Back 22

Contributory Negligence: In cases where the claimant is a child, the court will take into account their age in determining the standard of care to be expected.

Here, the plaintiff, a 9-year-old boy, purchased petrol from the defendant's garage claiming it was for his mother. In the event, he was seriously injured whilst lighting fires with the substance. The defendants were found liable in supplying petrol to a child of that age and there was no contributory negligence on the part of the plaintiff, who could not have been aware of the danger.

Front 23

Harrison v BRB 1981

Back 23

Contributory Negligence: Rescuers are generally protected from contributory negligence.

However, the court will deem that such protection will not be justified if the rescuer had negligently helped to create the emergency in the first place.

Front 24

O'Connell v Jackson 1972

Back 24

Contributory Negligence: The claimant must contribute to his own injury, although it need not contribute to the accident.

Here, the claimant failed to wear a crash helmet.

Front 25

Capps v Miller 1989

Back 25

Contributory Negligence: The claimant must contribute to his own injury, although it need not contribute to the accident.

Here, the claimant failed to wear a crash helmet properly.

Front 26

Ashton v Turner 1981

Back 26

‘ex turpi causa non oritur actio’ means 'no action may be based on an illegalcause' and appears to rest on the idea that the courts will not help/compensate a claimantwhere it would be 'an affront to the public conscience' to do so, and might encouragethe claimant, or others, in illegal activities. Basically, it operates to deny compensation to awrongdoer.

Compensation was denied to a passenger injured by his getaway driver after they had bothbeen involved in a burglary.

Front 27

Marsh v PaulineClare (Chief Constable of Lancashire Constabulary 2003

Back 27

The crimes of knowingly participating in corruption and intentional handling of stolen carswere considered serious enough for the defence of ex turpi to succeed.

Front 28

Pitts v Hunt 1991

Back 28

The facts of the case were that the plaintiff and defendant had been on a joint drinking spreeand were both heavily intoxicated. The plaintiff rode pillion on the defendant's motorbikeencouraging the defendant to drive recklessly. The Court of Appeal stated that the jointillegality made it impossible to apply a standard of care and, therefore, the action should fail.

Front 29

Vellino v Chief Constable of Greater Manchester 2002

Back 29

The police arrived atthe claimant’s flat and arrested him on an outstanding warrant. The claimant managed to freehimself from the police and jumped from a second floor window. The court held that no duty ofcare existed and, in any event, by breaking away from custody, the claimant was committinga crime and ex turpi may well apply.

Front 30

Kirkham v Chief Constableof Greater Manchester 1990

Back 30

Ex Turpi: Many cases still use the affront to public conscience test. The defence has been criticised as being too muchof a blunt instrument. If successful no liability is imposed and, in some cases, this can lead to adegree of injustice.

Front 31

Delaney vPickett 2011

Back 31

Ex Turpi: The recent trend is to adopt a causal analysis in cases of joint criminal enterprise.

the claimant was injured in a motor vehicle accident due tothe defendant’s negligent driving, but was found to be carrying a large packet of cannabiswhich the court found the claimant and defendant were travelling to sell. The ex turpi causadefence failed because the claimant’s injury was not caused by his illegal act, the illegalitymerely provided the occasion for the injury