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Lectures 15 and 16 – Defences:
contributory negligence, volenti non fit
injuria; exclusion of liability; ex turpi
causa non oritur actio.
N.B. LEADING CASES ARE
MARKED WITH AN ASTERISK: *
Lecture 15 - Defences: contributory
negligence, volenti non fit injuria.
The two principal defences to negligence
are contributory negligence (a partial
defence) and volenti non fit injuria (a
complete defence).
1. Contributory Negligence (CN).
Reduces damages, if it can be proved that
C contributed to damage suffered by
failing to take sufficient care of own
safety. Fault must be shown on part of C.
Jones v Livox Quarries [1952] 2 QB 608
*: C worked in quarry, injured while
standing on back of moving “traxcavator”
and dumper truck crashed into it – C CN
because harm to himself was foreseeable;
he should have foreseen carelessness of
others. Stapley v Gypsum Mines [1953]
AC 663: Stapley worked in gypsum mine.
D employer told him and fellow employee
to remove dangerous part of roof in
mine, where they were working. They
tried but gave up after half an hour. Roof
collapsed, killing Stapley. Widow sued D.
Stapley 80% CN.
A. Governed by statute: Law Reform
(Contributory Negligence) Act 1945.
S. 1(1): apportionment – court establishes
percentage of damage for which C was
responsible, and award is reduced
accordingly. Court considers what is “just
and equitable” having regard to C’s share
in responsibility for damage.
A. Standard of care. No need for D
to establish that C owed a duty of care.
Need only be established that C failed to
take proper care for their own safety in all
the circs., and this was contributory cause
of damage. More subjective approach than
standard of care in negligence. This is
particularly so in case of children. Gough
v Thorne [1966] 1 WLR 1387 *: 13 year
old girl hit by car, driven negligently, after
lorry driver indicated she should cross
road. C not CN because this “depends on
whether any ordinary child of 13 could be
expected to do any more than this child
did”, per Salmon LJ. More objective
attitude detectable in “seat-belt” cases.
B. Causation.
C’s conduct must contribute to damage.
Problem when more than one D –
Fitzgerald and Lane v Patel [1989] AC
328 *: C stepped into road without looking
and hit by D, who was driving negligently.
C was subsequently hit by second D’s car.
H of L held that apportionment of liability
between C and D must be kept separate
from apportionment of responsibility for
accident itself as between two D’s. C
should be no better off because injured by
2 people.
Froom v Butcher [1976] QB 286 *: C
driving carefully. D driving too fast on
wrong side of road, resulting in collision
with C, who was not wearing seat-belt. -
Injury more serious than would have been
if wearing seat-belt. Distinction between
cause of accident (D’s negligent driving)
and cause of injuries (C not wearing seat-
belt): C’s damages reduced.
C. Drunk drivers and their
passengers. Burden of proof on D to prove
that C knew driver was unfit to drive.
Limbrick v French and Farley [1993]
PIQR P121 *: not CN, even though C
knew D had been drinking, because not
possible to prove she knew he was unfit to
drive. Stinton v Stinton [1993] PIQR
P135: C, passenger in car, was so drunk he
was unconscious. Argued he was not direct
participant. Held that short of direct
participation, this was case of maximum
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blameworthiness. Damages reduced by a
third.
2. Volenti non fit injuria
(“That to which a person consents cannot
be considered an injury”: Consent). If
volenti applies, it is a complete defence: C
was willing to run risk of injury, and
cannot therefore complain about D’s
conduct at later date. Judges are often
reluctant to find volenti if this means
denying C remedy altogether, and
frequently compromise by finding CN.
Requirements of volenti: i) voluntary
submission to risk by C; ii) C’s knowledge
of risk; iii) C’s acceptance of risk. Imperial
Chemical Industries v Shatwell [1965] AC
656 *: C shot-firer employed by D. C
ignored D’s orders and safety regs by
testing detonators without taking shelter. C
injured in explosion. C volenti: no pressure
brought by D to adopt that working
method.
A. Merely because C knows of
risk does not necessarily mean he accepts
consequences of risk. Smith v Baker &
Sons [1891] AC 325 *: C worked in
quarry. Crane swung large rocks over his
head without warning. C complained
several times, but employer did nothing.
Rock fell and injured C: not volenti.
B. Dangerous jobs. Unlikely for
employee to be volenti, so great is
employer’s duty re health & safety of
employees. Gledhill v Liverpool Abattoir
Co Ltd [1957] 1 WLR 1028: C, worker in
slaughterhouse, injured when dead pig fell
on top of him. Held: danger of which
employees all aware; therefore C was
volenti. Employer’s duty of care re health
& safety of employees cannot be excluded
by term of employment contract.
Johnstone v Bloomsbury AHA [1991] 2
All ER 293: junior doctor obliged to work
88 hours per week. This was enforceable
only if didn’t breach implied term of
reasonable care for employee’s health.
C. Road Traffic Act 1988, s. 149: car
passenger is not volenti in circs where
insurance is compulsory, even if driver is
drunk or there is antecedent agreement
between driver & passenger. But in
Morris v Murray [1990] 3 All ER 801 *,
C was volenti when he went on drunken
joyride with defendant in D’s light aircraft.
C knew D was not in fit state to pilot
it...“Flying is intrinsically dangerous and
flying with a drunken pilot is great folly”,
per Fox LJ.
Dangerous sports.
Participants have consented to trespass
which occurs within rules of sport, but not
acts of violence which occur outside rules.
Nor does C consent to negligence by
referee. Vowles v Evans and Another
[2003] EWCA Civ 318 *: C suffered
tetraplegia after injury when rugby scrum
collapsed. D had been negligent regarding
control of set scrums.
Rescuers.
Seldom found to have consented to run
risk of injury, provided rescue necessary to
save life, limb or property. Videan v
British Transport Commission [1963] 2
QB 640 *: danger invites rescue.
Stationmaster killed rescuing his 2-year-
old child from being hit by negligently
driven motorised trolley. Child was
trespassing, so not foreseeable. D liable.
Principle applies even if rescuer is
professional member of rescue service.
Salmon v Seafarers Restaurants Ltd
[1983] 3 All ER 729: C firefighter, injured
in blaze, negligently caused by D. Where
fire is negligently started, and firemen at
risk even though they exercise professional
skill, “no reason why a fireman should be
at any disadvantage, when the question of
compensation for his injuries arises”, per
Woolf LJ.
Reading
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McBride and Bagshaw, 696-707; 721-722;
737-741.
Further Reading
J. Goudkamp and D. Nolan, ‘Contributory
Negligence in the Twenty-First Century:
An Empirical Study of First Instance
Decisions’ (2016) 79 MLR 575;
N. Gravells, ‘Three Heads of Contributory
Negligence’ (1977) 93 LQR 581;
A.J.E. Jaffey, ‘Volenti Non Fit Injuria’
(1985) 44 CLJ 87;
C. Witting, Street on Torts, 185-201.
Lecture 16 – Defences: exclusion of
liability; ex turpi causa non oritur actio.
1. Exclusion clauses and consent.
Where volenti is based on agreement, this
might amount to an exclusion clause.
Unfair Contract Terms Act 1977:
s. 2(1), person cannot by reference to any
contract term, or notice given to persons
generally, exclude or restrict liability for
death or personal injury resulting from
negligence;
s. 2(2), in case of other loss or damage,
person cannot exclude or restrict liability
for negligence unless term or notice is
reasonable;
s. 2(3), where contract term or notice
purports to exclude or restrict liability for
negligence, person’s agreement or
awareness of it is not of itself indicative of
the voluntary acceptance of any risk.
N.B. s. 1(3) specifies that the above
provisions apply only in relation to
“business liability”: It is still possible to
exclude or limit liability in other
situations.
2. Ex turpi causa non oritur actio
(“No action can be based on a disreputable
cause”: defence of Illegality). Underlying
this defence is public policy. Sometimes
used as reason for denying existence of
duty, rather than as a defence. Pitts v Hunt
[1990] 3 All ER 344 *: C (passenger on
motorcycle) and D engaged in joint illegal
enterprise, in which C was aiding and
abetting criminal behaviour of D. Volenti
not available. Must be link between illegal
act and tort. See also, Beaumont and
O’Neill v Ferrer [2016] EWCA Civ 768:
no compensation, on grounds of illegality,
when claimants were seriously injured
“jumping” a taxi without paying for fare,
although D was driving negligently.
Vellino v Chief Constable of Greater
Manchester Police [2002] 1 WLR 218 *:
C, seriously injured jumping from 2nd-
floor window to escape police. Alleged D
owed him duty of care not negligently to
let him escape after they arrested him. Ex
turpi not applied here – rather, C of A held
there was no duty of care to prevent
escape. See dissenting judgement of
Sedley LJ: CN more appropriate method of
doing justice.
Hewison v Meridian Shipping PTE &
others [2002] EWCA Civ 1821: C suffered
injuries while employed by D as crane
operator on ship. Claimed loss of future
earnings. But he lied to get job, stating that
he never suffered from epilepsy. This was
criminal offence: obtaining pecuniary
advantage by deception. Deceit was
essential part of his claim. Court would not
lend its aid to a man who founded his
cause on an illegal act.
Clunis v Camden and Islington Health
Authority [1998] 3All ER 180: C sued D
for negligently releasing him from care,
following which he killed a stranger. C
charged with murder, reduced to
manslaughter on ground of diminished
responsibility. No private law duty of care
owed, but ex turpi would only be
inappropriate where C didn’t know nature
and quality of his acts, i.e. where plea of
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insanity would have succeeded in murder landowner who tried to remove him from
case. See also, Henderson v Dorset his property. C threatened D with baseball
Healthcare University Foundation Trust bat. D snatched bat and hit C on head with
[2020] UKSC 43: ex turpi applied and it, fracturing skull. C of A held that this
psychotic killer could not recover damages was not disproportionate force;
from negligent NHS Trust, which failed to furthermore ex turpi defence could be
admit her to hospital.  used, as D had been under attack from
same weapon. See also, Criminal Justice
Defence might not operate if unfair to Act 2003, s. 329, for statutory defence of
deny C because of minor criminal offence, self-defence…so far, used only by police!
e.g. driving over speed limit at time of
collision, although if C was escaping after
committing a crime then the defence Reading
probably would apply. Ashton v Turner
[1981] QB 137: C injured in getaway car, McBride and Bagshaw, 707-717.
driven negligently by his criminal
accomplice, D. As a matter of public Further Reading
policy the law would not recognise a duty
of care owed by one participant in a crime
to another. Court unwilling to determine R. Glofcheski, ‘Plaintiff’s illegality as a
what speed would be expected from the bar to recovery of personal injury
reasonable getaway driver. See Lord damages’ (1999) 19 LS 6-23;
Toulson’s judgment in Patel v Mirza
[2017] AC 467: “a person should not be Law Commission Consultation Paper No.
allowed to profit from his own 160, “The Illegality Defence in Tort”
wrongdoing”, and “the law should be [2001]: http://www.lawcom.gov.uk;
coherent and not self-defeating” (para. 99).
C. Witting, Street on Torts, 201-208.
3. Self-defence and defence of
property. Use of reasonable force in
attempt to protect persons or land may
operate as defence to torts of trespass to
the person. “Reasonable” depends on all
circs of each case. Defence is frequently
pleaded alongside ex turpi. See Revill v
Newbery [1996] 1 All ER 291 *: C,
habitual criminal, shot by D while C was
breaking into his shed; force used was
disproportionate. D liable, but C’s
damages reduced for CN. Ex turpi defence
rejected on grounds that if applied, C
(although a criminal and a trespasser)
would be left without any remedy for his
injuries. Is this a good decision? Did C
contribute to his injuries or were they not
caused by D firing the shotgun? See also,
Cross v Kirkby [2000] EWCA Civ. 426
(also, The Times, 5 April 2000): self-
defence pleaded alongside ex turpi in
claim by hunt saboteur against a