LECTURE 11 –

DEFENCES TO
NEGLIGENCE
Ms Gallop
INTRODUCTION
 Even when a claimant satisfies the prima
facie elements of a cause of action in
negligence (that is a duty of care, a breach
of that duty, and the requirements of
causation and remoteness have been
satisfied) the defendant may still be relieved
from liability if he has a defence to his
actions.
 Defences are generally pleaded after the
claimant has pleaded and established a cause
of action
VOLENTI NON FIT INJURIA
 Volenti non fit injuria is also known as
voluntary assumption of risk.
 It reflects the common sense idea that a
person who has invited a negligent act, or
assented to the negligent act being
committed against them, should not be able
to then bring a claim.
 The assumption of risk may be either explicit
or implied
 Express assumption of risk normally takes the
form of an agreement, and the extent of
assumption will generally depend on the
agreement
 Implied assumption of risk is more complex,
for example in cases where the defendant
seeks to show that the claimant assumed the
risk through their conduct prior to the
negligence taking place.
 However in either case there must be an
assumption of the risk: mere knowledge of
the risk is not enough to qualify for the
defence of volenti non fit injuria
 In modern case law it is highly unlikely that
the court will find that there is the defence
of volenti non fit injuria unless there has
been a express prior agreement
 Thus in general:
 (i) Volenti non fit injuria does not come into
play unless there is consent to the
negligence
 (ii) There must be consent to the legal
consequences of the negligence
 (iii) Normally there must a specific
agreement
 (i) Knowledge of the Risk
 Woodley v Metropolitan District Railway
Company
 The plaintiff was a workman employed by
the defendants to execute work on the side
wall of their railway. Trains passed the spot
every ten minutes, and because the spot
where the work was taking place was on a
curve the workmen would only know that a
train was approaching when it was twenty
yards away from them.
 There was just enough space between the wall
and the railway for the workers to be clear
when the train passed. No one was put in a
position to give warning about the approaching
train, and the speed of the train was not
reduced near where the men were working,
and the whistle was not sounded.
 Thus the plaintiff was thus employed in a
situation of extreme danger
 The plaintiff was then struck by a train as it
went past, when he was not aware of its
coming
 It was held that the defence of Volenti Non Fit
Injuria applied as the employee was seen to
consent to the risk of injury by continuing his work
 This case seems to equate assent with knowledge
of the risk
 However it is clear that this case would not be
decided the same way today
 Firstly mere knowledge of the risk is not enough
 Secondly the relationship between employees and
employers has been recognised to vitiate the vast
majority of the application of these cases
 Thus in the case of Nettleship v Weston it
was held that claimant must agree, expressly
or impliedly, to waive any claim for any
injury that might befall him due to the lack
of reasonable care by the defendant. Thus in
this case knowledge that the driver was a
learner driver was not sufficient – the
claimant must have consented to the risk of
injury.
 (ii) Implied Agreement to Accept Risk
 Morris v Murray – in this case the plaintiff had
been drinking with the defendant in a
number of pubs over a number of hours.
After this the defendant suggested that he
fly the claimant in his light aircraft. The
plaintiff drove the defendant to the airport.
At the airport all other flights had been
cancelled due to poor weather conditions,
and the runway was wet and slippery.
 The plane crashed and the defendant died,
and the claimant was severely injured. In
this case the defence of volenti non fit
injuria was applicable as the claimant had
impliedly assented to the risk by colluding
with the defendant by drinking with him, and
driving him to the airport.
 In contrast, in the case of Dann v Hamilton the
plaintiff was a passenger in a car, where the
driver had consumed alcohol. Another person left
the car, but she chose to remain despite
commenting on the driver’s inebriation. The
driver of the car died in a serious car accident. It
was held that the claimant could still recover
damages from his estate.
 The case was distinguished from Morris as the
driver was not drunk when the drive started, until
quite a late stage in the day by which time it was
hard for the claimant to leave without offending
the driver.
 In any case the Road Traffic Act 1988 has
since excluded the defence of Volenti ever
being applied in a case where the defendant
caused an accident as a result of alcohol
consumption.
 It has been confirmed that the agreement
must be voluntary and cannot be as a result
of any mental illness
 In Kirkham v Chief Constable of Greater
Manchester it was confirmed that the
defence of volenti did not apply when a
widow was suing the police after her
mentally ill husband committed suicide in a
police cell.
 However in the case of Reeves v
Commissioner of Police for the Metropolis it
was held that even though the man who
committed suicide was not mentally ill the
defence of volenti would not apply when the
act of the deceased relied on is the very act
which the duty cast upon the defendant
required him to prevent.
 In the case if ICI v Shatwell 2 brother-
employees ignored the instructions of their
employer and failed to undertake mandatory
precautions. As a result of this failure they
were injured in an explosion. Each brother
claimed against the defendant based on their
employer's vicarious liability for the
negligence and breach of statutory duty of
the other brother. The defendant raised the
defence of volenti non fit injuria in that the
brothers had full knowledge of the risk and
were acting against express instructions.
 At trial the judge held that the defence
of volenti could not apply where there was
breach of a statutory duty. This was upheld in
the Court of Appeal.
 Held = the brothers had deliberately acted in
defiance of the employer's express instructions in
full knowledge of the risks. The workers were
under the statutory duty not the employer. The
employer had been instrumental in bringing in
the statutory regulations and ensured all workers
were aware of them. They had also previously
dismissed a worker for flouting the regulations.
 (iii) Volenti and Rescuers
 In Haynes v Harwood the defendant’s employee
negligently left a two horse van unattended in a
crowded street. Someone threw a stone at the
horses and they bolted. The plaintiff, a policeman,
was injured in the process of attempting to
restrain the horses.
 The defendant suggested that the claimant had
consented to the risk of injury by his actions. This
was rejected by the court which held that the
policeman did not have a choice whether to act,
and cited policy concerns for allowing such a
defence.
 In the case of Baker v Hopkin the defendant
employer had negligently sent his employees
to work in a well where there was carbon
monoxide. The plaintiff, a doctor, climbed
down into the well to help. All 3 of the
people in the well died, and the widow of
the doctor sued the defendant employers. It
was held that the defence of volenti did not
apply, and it would be ingracious to try and
cite it in such a situation.
 (iv) Volenti and Sport
 In this case the defence of volenti and the
standard of care demanded in sport are closely
related.
 In the case of Woolridge v Sumner a cameraman
at a horseshow was injured by a horse, after it
turned round the corner and hit him. The
cameraman had previously been told to move by
the organisers of the show. It was held that in this
case volenti did not apply. The spectator has not
assumed the risk by being there. However there
was no breach of duty in this case anyway.
 Watson v British Boxing Board – in this case a
boxer was injured after being punched in a
match in the head. It was held that whilst
there was the defence of volenti to the risk
of injury in the ring, there was not volenti to
the inadequate medical care provided at the
ringside, which led to the brain injury.
 Generally as Volenti Non Fit Injuria is a 100%
defence the court is very unwilling to apply
it, and it is interpreted very restrictively
CONTRIBUTORY NEGLIGENCE
 Contributory negligence occurs when the
claimant’s own negligence is partly to blame
for the injuries he has suffered
 For example where the claimant, without
looking to check for traffic, steps out in the
road and is hit by the defendant’s car which
is being driven too quickly.
 Prior to 1945 if the claimant contributed to
his injury then the defendant had a 100%
defence
 Thus in the case of Butterfield v Forrester
the defendant negligently put a pole across
the highway. The plaintiff was riding a horse,
and crashed his horse into the pole. The pole
was visible but the plaintiff was drunk.
 It was held that the defendant had a
complete defence, because the plaintiff had
been drunk. As such the plaintiff had to bear
100% of the damages.
 This was rectified in the 1945 Law Reform
(Contributory Negligence) Act. Under this act
courts were allowed to apportion damages to
reflect the liability of the defendant in the
case.
 Thus in the case Jones v Livox Quarries it was
held that the defendant was not wholly
liable for the damages. In this case the
plaintiff, who worked in a quarry, rode on
the back of a tracked vehicle to the
employer’s canteen.
 This was done against the express
instructions of the employer. The plaintiff
was then crushed between the back of the
tracked vehicle and another vehicle which
went into the back of it. The plaintiff
brought a case against the employer’s for
vicarious liability for the driving of the
tracked vehicle.
 Held – the defendant was liable but the
claimant was 20% to blame, and thus
damages were reduced by this amount.
 Stapley v Gypsum Mines Ltd – the claimant’s
husband was killed when a mine collapsed on
top of him. At the time of his death his
employer’s had told him to leave, and
another employee had been told to bring
down the roof. When they failed to do this
the claimant’s husband continued working.
 It was held that whilst the defendant’s had
been negligent they were only responsible
for 20% of the injuries suffered, and damages
were adjusted to reflect this.
 In the case of Froom v Butcher the plaintiff, his
wife and his child were injured when the car they
were in was struck by the defendant’s car.
Although the collision was as a result of the
careless driving of the defendant it was
exacerbated as the claimant had failed to wear a
seatbelt.
 It was held that there should be a reduction in
damages by 20% for head and neck injuries which
were made worse by the lack of seatbelt. However
the claimant received 100% of the compensation for
the broken finger which would have been injured
regardless of whether a seatbelt had been worn.
 In the case of Candolin v Pohjola (ECJ) a car
accident caused one passenger to die and
another to be seriously injured. The accident
was in Finland where compensation was
denied as it was held that the claimant’s
should have noticed the defendant’s drunken
state.
 It was held in this case that damages should
only be limited in exceptional cases. As such
the defendant was liable to the claimants for
the entire damages.
 The court has additionally accepted that the
failure of a motorcyclist to wear a helmet
amounts to contributory negligence
(O’Connell v Jackson)
 It should be remembered that in many cases
where the questions of contributory
negligence arises, the defendant will be
insured against liability. The result is that a
reduction in damages for the claimant’s
contributory negligence is very likely to be
borne by the claimant personally.
 (ii) Defendant’s Negligence Creating
Emergency
 Adams v Lancashire and Yorkshire Railway Co
– the plaintiff was a passenger on a train
operated by the defendant. Due to the D’s
negligence the door of the carriage flew
open several times and in the process of
trying to close the door the Claimant was
injured. The train had stopped at three
stations since the door had begun opening,
and was stopping at another in 3 minutes.
 It was held that in this case there was
contributory negligence as the plaintiff had
taken an unnecessary risk by trying to close
the door when he did. As such his damages
were reduced.
 This could be distinguished from the case of
Jones v Boyce where it was clear that the
claimant was in immediate danger and had
to act, and thus could not be seen as
contributory negligent.
 (iii) Children
 In the case of Gough v Thorne the plaintiff, a
13 year old girl, was waiting for her brother’s
to cross a busy road in London. A lorry driver
stopped and indicated to following traffic to
stop and for the children to cross. As the
plaintiff crossed she was injured by a car
driven at excessive speed. The driver of the
car did not notice the lorry’s outstretched
hand and drove between the lorry and
bollards.
 It was held that the girl did not contribute to
the injury by not looking to her right as she
crossed the road. It was held she acted
reasonably as was expected of her age and
was thus not blameworthy.
 Lord Denning went as far as to suggest any
very young child cannot ever be found to
have contributed to the negligence