Defences

• Volenti non fit injuria


  To a willing person, injury is not done
• Volenti


  • Defendant must prove claimant had knowledge of the risk and willingly consented to accept that risk
  • Volenti is a complete defence that will mean there is no liability for injury or loss
• Morris v Murray [1990]


  • Claimant went drinking with friend who had a pilot's licence, friend then invited claimant to go for a flight in his light aircraft, the plane crashed and the claimant was injured
• The trial judge awarded the claimant damages, but on appeal the Court of Appeal accepted the defence of volenti and overturned the decision
• Volenti can rarely be used as a defence in negligent driving even if a passenger accepts a lift with an obviously drunk driver, due to the Road Traffic Act 1988 s 149(3)
• Volenti in sporting activities

  • Players are regarded as having consented to the risks associated with that particular sport provided any injuries were not caused by breaches of the rules of the game
  • Spectators are also regarded as having accepted the risks in going to watch the live activity
• Wooldridge v Sumner [1962]


  • Photographer got in the path of a galloping horse at a horse show, the Court of Appeal held that there had been no breach of the duty of care owed as there was no evidence that the rider was being negligent
• The courts are often reluctant to accept volenti as a defence
• Contributory negligence


  Where any person suffers damage as the result partly of 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, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage
• Contributory negligence will reduce the damages payable by the defendant according to the extent to which the claimant's own carelessness contributed to his or her injuries
• Since the Law Reform (Contributory Negligence) Act 1945, the courts have been reluctant to accept a defence of volenti preferring to apportion loss between the parties
• Using the defence of contributory negligence

  • The claimant failed to take care of his own safety in a way that at least partially caused his or her injuries
  • The claimant failed to recognise that he/she was risking his/her own safety even though the reasonable person would
• Badger v Ministry of Defence [2006]

  • The claimant had contracted lung cancer as a result of exposure to asbestos at work and died, his widow's damages were reduced by 20% because he had made his condition worse by smoking
• The courts have recognised that children are less able to recognise risky conduct than adults, the standard of care for a rescuer is that of the reasonable rescuer rather than that of the reasonable person, and in an emergency situation, the courts have accepted that a person may not have the time to take the best course of action
• Apportioning blame


  • Causation: the extent to which the defendant's own actions caused his/her own injuries
  • Culpability: the relative blameworthiness of the claimant and defendant for the claimant's injuries
• Froom v Butcher [1976]


  • The Court of Appeal suggested the following reductions in damages awarded to a claimant in a car accident who failed to wear a seatbelt: 25% if injuries would have been avoided, 15% if injuries would have been less severe, no reduction if injuries would have been the same
• In scenario one, the driver is liable and there is no reduction in damages. In scenario two, the driver is liable but the claimant's damages will be reduced (probably by about 25%). In scenario three, the driver is liable but the claimant's damages will be reduced (probably by about 25%)
• Ex turpi causa non oritur actio


  No action arises from a dishonourable claim, meaning there is no liability in tort for injuries sustained in an unlawful course of action or immoral act