Defences

• What are the 2 main defences that may be applicable to a negligence case?

  • Consent or volenti non fit injuria
  • Contributory negligence
• What does consent/volenti non fit injuria mean?

  If proven, the claimant is deemed to have accepted a voluntary assumption of the risk of harm.
• When is the consent defence only valid?

  If the claimant had knowledge of the precise risk involved, exercised free choice in accepting the risk and did so voluntarily. This defence isn't valid if the claimant only knows of the existence of the risk: they must have a full understanding of it (Stermer V Lawson). This defence will not succeed whether the claimant has no choice but to accept the risk (Smith V Baker).
• In what contexts is the claimant said to have not consented to the risk?

  If the they have a duty to act, such as if they are a police officer (Haynes V Harwood), this doesn't count as consent.
• What type of defence is consent?

  A complete defence, meaning when it's applied it removes liability.
• What is contributory negligence?

  The claimant is deemed to have contributed to the harm/damage suffered in some way.
• Where is the scope of the law for the contributory negligence defence contained?

  Within the Law Reform (Contributory Negligence) Act 1945. This
• What does the Law Reform (Contributory Negligence) Act 1945 provide?

  That any damages awarded to the claimant can be reduced according to the extent or level to which the claimant has contributed to their own harm. In reducing the amount of damages, a judge will decide on the percentage the claimant was responsible for and reduce the full amount by the percentage.
• Which situations is the contributory negligence defence most common in?

  Injuries/damages suffered in road traffic accidents, for example (O'Connell V Jackson); (Froom V Butcher); (Stinton V Stinton).
• What type of defence is contributory negligence?

  A partial defence meaning the liability still applies.