Tort: Negligence Defences

• Volenti non fit injuria defense:

  • Knowing and willingly accepting a risk provides a complete defense to negligence
  • Example: A person playing football accepts the risk of injury from a misjudged tackle, but not all tackles are justified
  • Watson v Gray (1999): Behavior creating a risk of injury beyond the accepted risk in a game of football goes beyond consent
• Contributory negligence defense:

  • Law Reform (Contributory Negligence) Act 1945 provides a partial defense
  • Damages are reduced based on the fault of each party in causing or increasing the damage
  • Court has discretion in determining the extent of reduction
  • Sayers v Harlow UDC (1958): Damages reduced by 25% for making the situation worse
• Cases illustrating defenses:

  • Smith v Baker (1891): Following employer's orders does not imply consent
  • ICI v Shatwell (1965): Disobedience of safety procedures implies consent
  • Haynes v Harwood (1935): Duty to assist generally negates volenti
  • Froom v Butcher (1976): Not wearing a seatbelt contributes to loss by up to 25%
  • Jayes v IMI (Kynoch) (1985): Contributory negligence can be 100% but not volenti
• Activity questions:

  • In a kickboxing competition, volenti applies if injury risk is knowingly and willingly accepted
  • In cases like Watson v Gray, volenti does not apply if the injury goes beyond accepted risk
  • Law Reform (Contributory Negligence) Act 1945 reduces damages based on claimant's fault
  • Boarding a plane with an unlicensed pilot may lead to volenti defense
  • Helga accepting risks in a sport may prevent her from claiming unless the danger goes beyond the usual
• Advice for Jake:

  • Jake's broken leg due to Kandy's distracted driving can lead to a negligence claim
  • Contributory negligence may apply if Jake forgot bicycle lights in the rain
  • Jake may have rights to claim damages based on the extent of his responsibility for the accident