Defences

Question 1

Explain the defence of Contributory Negligence (Act of 3rd Party)

Answer 1

• Law Reform (Contributory Negligence) Act 1945: any damages awarded to C can be reduced according to extent/level they contributed to their own harm.
• Sayers v Harlow Urban District Council: not a full defence + only results in reduction of damages.
• Jayes v IMI (Kynoch) Ltd: possible for there to be a 100% reduction in damages.
• O’Connell v Jackson: damages can be reduced where motorcyclist fails to wear crash helmet.
• Stinton v Stinton: C accepted lift from drunk driver- knew he was over the limit. Damages were reduced.

Question 2

Explain the defence of Consent (Volenti Non Fit Injura)

Answer 2

• Subjective- takes into account factors
• Full defence, C accepts voluntary assumption of risk of harm.
  To succeed D has to show:
  1) Knowledge of the precise risk involved
  2) Exercies of free choice by C
  3) Voluntary acceptance of risk
• S.149 Road Traffic Act 1998: defence can’t be used for road traffic accidents- as of 3rd party insurance.
• Stermer v Lawson: defence wont apply merely because C knows of existence of risk; must have full understanding of nature of actual risk.
• Smith v Baker: wont succeed where C has no choice but to accept risk.
  Sidaway v Governors of Bethlem Royal + Maudsley Hospitals: consent relevant in medical claims.
  If C acts against employers orders + is injured, defence likely to succeed