Defences to Negligence

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Defences

The burden of proof is on the defendant to raise a defence

• Contributory negligence

• Volenti non fit injuria (consent)

• Ex turpi causa (illegality/public policy)

Contributory Negligence

• Partial defence

Law Reform (Contributory Negligence) Act gives caselaw statutory footing

The defence must prove:

1. Claimant was at fault

2. Claimant’s fault was a cause of the damage

Froom v Butcher

C was not wearing a seatbelt (it was not legal at the time though Parliament required new cars to be fitted with them) and was injured by D in a crash. Countervailing theory that not wearing a seatbelt was actually safe

Held: to determine whether C was at fault, it had to be established whether her conduct fell below the reasonable standard. Lord Denning held that it was unreasonable to do so (this is SUBJECTIVE!) and recommends for future:

• 25% quantum if there would have been no damage but for contributory negligence

• 15% quantum if there would have been a good deal less damage but for contributory negligence

Owens v Brimmell

Getting in a car knowingly with drunk driver

Held: this choice puts the claimant at fault. It is an objective standard – if C should have known D was drunk, then there is contributory negligence (thus it didn’t matter that he was drunk)

Badger v MOD

C died of lung cancer which had been exacerbated by exposure to asbestos whilst working for D. He also smoked.

Held: in determining contributory negligence, it was necessary to establish when a reasonable person would have stopped smoking – they held that is became unreasonable when general health warnings were advertised. Thus they found contributory negligence ran from c.1975

Gough v Thorne

Lorry driver beckoned children across the road who were then run over

Held: the girl, in heeding the lorry’s signal, was acting reasonably by crossing the road. Thus she was not a contributor. The only two contributors were the driver & lorry driver

Damages are reduced by:

1. Calculating damages free from contributory negligence

2. Reducing it by the percentage of fault attributable

Consent

• Complete defence; though success rare

• Usually involves implied consent

Baker v TE Hopkins

Employees told to get out of well until the fumes (caused by negligence) passed but went down anyway. Doctor went down to rescue but himself became overcome.

Held: consent didn’t apply to workers. The consent equally did not apply to the rescuer as it is reasonably foreseeable that a rescue attempt would be made. The rescuer would need to be acting recklessly to be considered to have impliedly consented to breach.

NB: policy overtones of encourages rescue operations

NB: SARAH acts of heroism

Wooldridge v Sumner

Indoor horse racing where D’s horse crashed in C

Held: spectators are considered to owe a reduced standard of care as they are aware players are focussed on the game at hand. This, however, is not consent to breach but rather a lower standard of care resulting in no breach

ICI v Shatwell

Setting off a controlled explosion however didn’t have enough wire to be at a safe distance – brothers decided to go ahead. There was a problem with one of the explosions and they went...

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