Defences to negligence

• Defences to Negligence

  • Contributory Negligence
  • Consent (volenti non fit injuria)
• Contributory negligence = An allegation that the claimant has partly caused or contributed to his injuries or damage
• Consent (volenti non fit injuria) = An allegation that the claimant consented or agreed to accept a risk of harm
• Contributory Negligence (Froom v Butcher)

  • The Law Reform (Contributory Negligence) Act 1945 provides that a claimant's damages may be reduced
  • This will be based on the extent or level to which the claimant has contributed to their own harm
• Consent (Volenti non fit injuria)

  • Means that no injury is done to one who consents to the risk
  • This is seen as a 'full defence' and if used successfully the claimant will receive no damages
• Consent (Volenti non fit injuria)

  To be successful the claimant needs to show:

  1. Knowledge of the precise risk involved
  2. Exercise of free choice by the claimant
  3. A voluntary acceptance of the risk
  4. This test is subjective and it will not do to argue the claimant 'should have' known the risk. The question is 'did they' foresee it