DEFENCES

VOLENTI NON FIT INJURIA

➔ Defence of consent
➔ It has three main elements:
Voluntary action.
Prior agreement.
Made in full knowledge and understanding of the nature
and extent of the risk.

➔ Nettleship v. Weston
The court held that a learning driver has to meet the same
standard of care as a reasonably qualified and competent
driver. So the defence of volenti did not apply as the friend has
checked the defendant’s insurance cover, which meant that he
had not forgone his right to compensation.
➔ So, if the parties have voluntarily made an agreement, and it is
made before the negligent act has been committed, it will be
considered as consent and the defendant will not be held
liable.
➔ White v. Blackmore
The claimant was a car driver, who had taken part in a race
and had signed an agreement, containing an exemption
clause that excluded the defendant’s liability in case of death
or injury. The claimant got hit by a car and died when he was
watching the race. Here, even though the claimant had signed
the agreement, the defence of volenti failed as the claimant
had only agreed to the risk of racing, and not the negligent
construction of the spectator area.

➔ The claimant must have full knowledge and understanding of

the existence and extent of the risk they may face, although
this is subjective with respect to the situation at hand.
 ➔ Wooldridge v. Sumner
The claimant was a photographer who got a seat in the front
row of an equestrian competition. During the competition, a
horse came galloping towards him, and he stumbled into its
path with fear, and was knocked down. His claim failed as
there was no breach of duty, but the courts held that, only
consent to risk of injury was not enough to provide a valid
defence, as it was important to ensure full knowledge and
understanding of the risk.

Road Traffic Act 1988

➔ Defence of volenti is not available where a passenger in a car
sues the driver and the driver should have compulsory
insurance.
➔ Pitts v. Hunt
The claimant was the passenger on a motorbike driven by the
defendant. The defendant did not know how to drive a bike,
and was doing so dangerously, without a licence, and the
claimant was encouraging him in his behaviour. The defence
of volenti was not awarded subject to the Road Traffic Act.

Application in employment
➔ Previously employees were deemed to have impliedly
consented to any risk attached to their jobs.
➔ However, this has changed since the 19th century.
➔ Smith v. Baker
The claimant had been employed by the defendants to hold a
drill in position while two other workers hit it in turns. Nearby,
another group of workers were shifting large stones using a
crane that passed over the claimant’s head. One of the stones
broke loose and fell on the claimant’s head, injuring him. The
defendants relied on the defence of volenti, claiming that the
claimant had continued working in an obviously risky job,
although he had complained about it a few times. However,
this argument was rejected by the court as it stated that there
 was no evidence of the claimant voluntarily accepting the risk,
and merely continuing to work a dangerous job did not amount
to consent
➔ Imperial Chemical Industries v. Shatwell
The claimant was said to be fully aware of the risk by not
bothering to take the advised precautions and had consented
to the risk of potential damage.

Application in medical context

➔ In medical cases, battery can be committed in the following
circumstances:
● When the patient is treated against their will.
● When the patient consents to one type of treatment but
is given another, or extra treatment.
● When the patient is treated without being informed about
the results.
● When the patient has consented on the basis of
information that is inaccurate.
➔ So any medical treatment provided outside of these situations
will act as an automatic defence against a claim for battery.
➔ Chatterson v. Gerson
The claimant suffered from a trapped nerve and consulted the
defendant, a doctor, to free the nerve. After the treatment, she
completely lost all feeling in her leg, and sued the defendant
for battery, claiming that she had not given full consent as she
was not told of the risks of the operation. However, her claim
failed as the defendant had explained to her the nature of the
operation in broad terms
➔ Birch v. University College London Hospital NHS Trust
The claimant had an invasive procedure, and had consented
to it after being told about the risks. However, there were
complications during the operation due to which she suffered
a stroke, and brought it up against the defendant. Her claim
succeeded, as it was held that the duty of care of informing
her about the risks of the treatment involved telling her about
 any alternative treatments that may be safer. There was such
a treatment available and the claimant had not been made
aware of it, and so the defendants were held liable for battery.

Application in sports
➔ A participant in a sporting events is considered to have given
an implied consent for the risks of injury associated with the
sport
➔ However, consent will not act as a defence where the harm
has been caused by actions outside the rules of the game
➔ Condon v. Basi
The claimant suffered a broken leg during a tackle from the
defendant during a football match. Now, this is normal in such
matches, but the defendant was held liable for battery, due to
his reckless behaviour, which was not covered by the rules of
the game.

CONTRIBUTORY NEGLIGENCE

➔ The defence of contributory negligence may be applicable in

the following torts:
● Negligence
● Occupier’s Liability Acts 1957 and 1984
● Animals Act 1971
● Nuisance
● Rylands v. Fletcher
➔ It is not applicable in torts where intention is a major element,
such as trespass to land, or trespass to the person.
➔ Before 1945, contributory negligence would allow the
defendant to completely escape liability in tort.
➔ However, the Law Reform (contributory negligence) Act has
changed this, making it a partial defence, so that only part of
 the damages would be reduced based on the extent to which
the claimant has contributed to the damage.
➔ Damages would be reduced in two situations:
● Where, without the claimant’s contributory negligence,
the accident would have never happened; or
● The claimant’s actions increased the severity of the
damage that would have happened anyway
➔ Sayers v. Harlow Urban District Council
The claimant was trapped in a toilet cubicle due to a defective
lock and injured herself while trying to get out. Her claim for
negligence succeeded, but the damages were reduced due to
her contribution.
➔ Jayes v. IMI (Kynoch) Ltd.
The claimant was an experienced workman, who was cleaning
a machine when his hand got pulled into it and he lost the tip
of his finger. The safety cover of the machine had been
removed, but the claim still failed after the claimant admitted
that he knew what he had done was foolish.
➔ Anderson v. Newham College
The claimant was visiting the college when he walked into a
classroom and tripped on a whiteboard frame that was
freestanding and resting against the wall. If it had been put the
other way around, the claimant would have only hurt himself at
shin height instead of tripping. The college was found
negligent, however the claimant had a huge contribution to it
as he was not looking where he was going. As a result the
damages were reduced by 90%.
After this both the claimant and the defendant appealed.
The court held that there was a breach of duty and the
damages were apportioned at 50/50, because it would have
been reasonably practicable to turn the board the other way
around, and the claimant should have been looking where he
was going.
Apportioning Damages

When the claimant is a child

➔ The standard requirement of reasonable care that could be
expected with respect to a child claimant depends on the age
and experience of the child.
➔ Lord Denning has established that there is no age at which a
child could be expected to be reasonably careful, and hence,
contributorily negligent, for that matter. however, the expected
knowledge and awareness of the child at that particular age
will be considered.
➔ Yachuk v. Oliver Blaise Co. Ltd.
The claimant, a nine year old boy, bought petrol from the
defendant, telling him that it was for his parents, when in fact
he was going to play with it. He got burned from the petrol and
was badly injured. In this situation, the claimant was not found
contributorily negligent as a child of that age could not be
expected to be aware of the danger associated with petrol,
and so the defendant was held liable.
➔ It is also established that two children of the same age may be
held to have committed different levels of contributory
negligence, depending upon whether they could be expected
to be aware of the danger.
➔ Evans v. Souls Garage
Two thirteen year old boys bought petrol from the defendant
so that they could sniff the perfumes. Some of the petrol
spilled on the claimant’s clothes and when the other boy, who
was smoking, threw a lit match, his clothes caught fire and he
got burned. Here, although the defendant was at fault for
selling petrol to underage boys, but the claimant was held
contributorily negligent, as he knew that playing with petrol
was dangerous.
 ➔ Probert v. Moore
Here, a thirteen year old girl was crossing the road when she
was hit by a car travelling at 45 miles an hour. She was not
held contributorily negligent.

When the claimant is a passenger

➔ Froom v. Butcher
A car accident had been caused by the defendant’s
negligence, but the claimant had not been wearing a seat belt,
due to which he suffered head and chest injuries. The
claimant was held contributorily negligence and damages
were reduced by 20%.

When the claimant is a cyclist

➔ HC Sinclair v. Joyner
The claimant was not wearing a helmet at the time of the
accident and suffered injuries as a result. He was held
contributorily negligent.

OTHER DEFENCES

➔ Inevitable accident
➔ Act of god
➔ Illegality
➔ Necessity