Negligence - Defences

• Are two main defences which can be raised by D in negligence claim.

  1. Contributory Negligence - an allegation that the claimant has partly caused or contributed to their injuries.
  2. Consent - an allegation that the claimant consented or agreed to accept a risk of harm.
• Contributory Negligence:

  • The Law Reform (Contributory Negligence) Act 1945 provides that any damages awarded to claimant can be reduced according to extent or level to which claimant had contributed to his own harm.
  • The amount of blame will be decided by judge by setting out full amount of damages. The judge will ten decide on percentage of blame by claimant and reduce damages by this amount.
• Contributory Negligence:

  • Sayers v Harlow Urban District Council 1958
  • Damages were reduced by 25% because of the way C was injured when they tried to escape when locked in public toilet.
  • Jayers v IMI (Kynoch) LTD 1985:
  • Damages were reduced by 100% because C admitted it was their own decision to put their fingers into machinery at work, losing their fingertips.
• Consent (Volenti):

  • Consent or Volenti non fit injuria is a full defence when the claimant voluntarily accepts a risk of harm.
  • If it is successful the claimant will receive no damages.
  • To succeed D has to show the following:

  1. Claimant's knowledge of the precise risk involved
  2. Exercise of free choice by the claimant
  3. A voluntarily acceptance of the risk
• Consent (Volenti):

  • Subjective. The defence only applied where the clamant des actually know the risk.
  • One restriction to the use of the defence is s.149 RTA 1988, which provides that the defence cannot be used for road traffic accidents because of third party insurance.
  • Nettleship v Weston
  • Smith v Baker 1891
• Nettleship v Weston:

  • This is the case where the learner driver injured their passenger when they hit a lamp-post.
  • This case also concerned whether the instructor had consented to the risk of harm by agreeing to teach D to drive.
  • The court decided there was no defence of consent as the claimant had specifically checked their insurance documents beforehand, showing they had not consented to a risk of harm.
  • However Contributory Negligence did apply, reducing damages by 50% as both the claimant and defendant were in control of the car.
• Smith v Baker 1891:

  • The claimant was employed to drill holes into a rock - not an inherently dangerous job role.
  • However another company was completing other works at the same time, who often used a crane to swing rocks over the claimant's head without warning. C complained to his employers but was told to carry on.
  • A rock fell from a crane and hit C on the head. C sued, and his employer claimed he had consented to the risk by continuing to work.
  • The court did not accept that C had consented, because he had not voluntarily agreed to the risk - his boss had told him to continue.