Defences

• Volenti non fit injuria (consent)

  This is Latin for "there can be no injury to one who consents" sometimes said to mean 'voluntary assumption of risk'
• Volenti non fit injuria (consent)

  • To successfully use consent the defendant must prove that the claimant had knowledge of the risk and willingly consented to accept that risk (it was the claimant's free choice)
  • It is a subjective not an objective question: did that particular claimant know of the risk?
  • It is a complete defence that will mean there is no liability for injury or loss if proven
• Volenti non fit injuria (consent)

  • Morris v Murray [1990]
• Consent can rarely be used as a defence in negligent driving even if a passenger accepts a lift with an obviously drunk driver
• The Road Traffic Act 1988 s 149(3) states: "The fact that a person so carried has willingly accepted as his, the risk of negligence on the part of the user shall not be treated as negativing (rejecting) any such liability of the user."
• There may, instead, be a defence of contributory negligence
• Volenti non fit injuria (consent) in sports


  • 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
  • The general principle is that provided the activity is within the rules of the game, then an injured player cannot sue
• Some sporting activities carry risks for spectators such as being hit by a rugby ball while watching a match in a stadium or playing field. The approach by the courts seems to be that an error of judgement or lapse of skill does not give rise to liability as the spectator has accepted the risks in going to watch the live activity
• In practice the courts are often reluctant to accept volenti (consent) as a defence
• Contributory negligence


  Unlike volenti (consent), which is a complete defence, the defence of contributory negligence allows a court to apportion blame (and therefore damages) between the two parties in a way that it considers to be just and equitable (fair)
• Contributory negligence


  • It means that the claimant and defendant are both partly to blame for the damage, for example when a negligent driver hits someone who had stepped into the road without looking
  • For a defence of contributory negligence to succeed, it must be proved that: the claimant failed to take care of their own safety in a way that at least partially caused their injuries, and the claimant failed to recognise that they were risking their own safety even though 'the reasonable person' would
• Contributory negligence


  • Sayers v Harlow UDC (1957)
• Since the Law Reform (Contributory Negligence) Act 1945, the courts have been reluctant to accept a defence of volenti preferring to distribute loss between the parties
• The courts have recognised that children are less likely 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
• In an emergency situation, the courts have accepted that a person may not have the time to take the best course of action
• Trespass – Legal authority, Consent (licence), necessity

  Private Nuisance – Statutory authority, prescription

  Public Nuisance – Statutory authority

  Rylands – Consent, vis a major, act of a stranger, statutory authority and contributory negligence