Defences to a claim in Negligence

Question 1

Defences to a claim in Negligence

Answer 1

The two main defences that can be raised in a negligence claim are:
●An allegation that the claimant has partly caused or contributed to his injuries (contributory negligence) and/or
●An allegation that the claimant consented to or agreed to accept the risk of harm (Consent/volenti)

Question 2

Contributory Negligence

Answer 2

The Law Reform (Contributory Negligence) Act 1945 provides that any damages awarded to the C can be reduced according to the extent or level to which the C had contributed to his own harm.
This means that the C and the D are both partly to blame for the injury/loss.
The amount of blame will be decided by the Judge.
The Judge will first set out the whole amount of damages awarded and then decide what % each party will pay.

Sayers v. Harlow Urban District Council (1958) – 25% reduction
Jayes v. IMI (Kynoch) Ltd (1985) – 100% reduction!

Question 3

Consent – Volenti non fit injura

Answer 3

Consent or ‘Volenti’ is a full defence to a claim in Negligence. It is when the Claimant voluntarily accepts the risk of the harm – no harm is done to one who consents to the risk.

Question 4

If Consent – Volenti non fit injura defence Is successful

Answer 4

If it is successful, the C will receive no damages. To succeed the Defendant must show (after the C has proven a tort actually took place!):
●C had knowledge of the precise risk involved
●C had exercise of free choice
●C must have voluntarily accepted the risk
●The tests are SUBJECTIVE, this means we must consider the mind of the claimant and not the objective reasonable man.