Defences to negligence (A) Flashcards
What does VOLENTI NON FIT INJURIA mean?
“To those consenting, no harm can be done”.
A causation principle.
- Volunteering becomes cause of injury, no causa causans.
What must be proven to use volenti as a defence?
- The pursuer knew of the risk of danger before the act or omission which caused harm.
- The peruser knowingly and willingly undertook that risk created by defender’s breach of DoC.
Volenti cases.
Titchener v British Railways Board 1984 SC (HL) 34.
- Not maintaining the defence, but signs up to warn people etc.
- Defence SUCCESSFUL.
Haynes v Harwood [1935] 1 KB 146.
- Defender negligent for leaving horses around, injured police officer.
- Defence FAILED because of nature. Police owed DoC to public.
ICI v Shatwell [1965] AC 656.
- Management had warned the brothers not to use explosives.
- Defence SUCCESSFUL.
Geary v JD Wetherspoons Plc [2011] EWHC 1506 (QB).
- Claimed they were negligent for having old stairs.
- No issue would have been caused if she used the stairs normally.
- Defence SUCCESSFUL.
What is contributory negligence?
Defender must prove that the pursuer’s fault contributed to the harm - using a BUT FOR test.
Must amount to a FACTUAL CAUSE of the harm.
Not a full defence - limits damages awarded.
If engaged in criminal activity - may be barred from action!
Contributory negligence cases.
Cork v Kirby MacLean Ltd [1952] 2 All ER 402.
- He should not have gone up if he experiences seizures, but company negligent for not installing railings.
Jackson v Murray 2015 UKSC 5.
- Even though the driver was under the speed limit, still found to be aware of the school bus - contributory negligence.
What is joint fault?
Harm to the pursuer is caused by more than one defender.
Necessary to show that there is a material contribution to the loss.
Anderson v St Andrews Ambulance Association 1943 SC 248.
- Bus and ambulance were both acting recklessly, involved in a crash.
