Defences to a Claim (Negligence)

Question 1

What are the two main defences in negligence?

Answer 1

• Contributory negligence
• Consent (volenti non fit injuria)

Question 2

What is contributory negligence?

Answer 2

• D alleges that C has partly caused/contributed to the damage
• Partial defence: both C and D are partly to blame for the injury suffered by C

Question 3

What is the Law Reform (Contributory Negligence) Act? (CN)

Answer 3

• 1945
• A judge may reduce any damages awarded to C according to the extent to which C contributed to their own injuries

Question 4

What was the case of Froom v Butcher? (CN)

Answer 4

• 1975
• C’s head injuries caused by decision not to wear a seatbelt, damages reduced 20%

Question 5

What is consent?

Answer 5

• If C voluntarily agreed to a risk of harm will full knowledge of the risk, they cannot complain when they suffer injury
• Complete defence: C receives no damages

Question 6

What was the case of Morris v Murray? (Consent)

Answer 6

• 1991
• Plane crash killed D and injured C, C brought negligence claim against D’s estate
• Court decided C had voluntarily assumed risk of injury by accepting a flight by an obviously intoxicated pilot

Question 7

No choice (Consent)

Answer 7

• D will not succeed when C had no choice but to accept the risk
• Also where someone had a duty to act and is injured because of D’s negligence, volenti will not be available as defence
• In a road traffic accident, driver cannot claim that a passenger consented to risk of negligent driving by accepting a lift

Question 8

What was the case of Ogwo v Taylor? (Consent)

Answer 8

• 1987
• D set fire to his house, C (fireman) suffered burns
• D’s defence that C consented to the injuries was rejected