Defences In Tort

Consent: Volenti Non Fit Injuria

Translates as: ‘to one who volunteers no harm is done’ or ‘no harm to he who
consents.’ Often known as ‘voluntary assumption of risk’

The principle behind this defence is that if the claimant consented to behaviour that
carries a risk of harm then the defendant is not liable in tort.

Successfully claiming this defence means that the defendant is not liable for any of
the claimant’s losses.

Complete defence thus it absolves the defendant of all liability and the claimant
receives no damages.

Requirements of Volenti

Once it is shown that the defendant committed a tort, the defendant must prove
that:

1. The claimant knew of the risk involved

Note: There is a considerate overlap between consent and contributory negligence

Claimant knew of the risk involved

Morris v Murray (1991) - Claimant and defendant had been drinking all day.
Defendant suggested that they took his aircraft for a flight. Claimant agreed and
drove them to the airfield. Defendant crashed. Claimant was seriously injured. An
autopsy revealed that the defendant had consumed the equivalent of 17 whiskeys.
In an action for negligence, the defendant raised the defence of consent. The
defence was allowed. The claimant’s actions in accepting a ride in an aircraft from an
obviously drunk pilot was so glaringly dangerous that he could be taken to have
voluntarily accepted the risk of injury and waived the right to compensation.

Passengers in Vehicles

The courts have been reluctant to allow the volenti defence in cases of negligent
driving even if a passenger accepts a lift with an obviously drunk driver.
The Road Traffic Act 1988 section 149 states that: contributory negligence would
apply where a person accepts a risk by getting in the car with a drunk driver.

Sporting Activities

Condon v Basi (1985) - A participant in sporting events is taken to consent to the risk
of injury which occurs in the course of ordinary performance of the sport.

Smolden v Whiteworth and Nolan (1997) - The claimant who was 17 suffered very
serious personal injuries when a rugby scrum collapsed and his neck was broken. The
judge found that the defendant had not enforced safety requirements set out in the
rules of the game, which contained special provisions relating to players aged under
nineteen.
The defence of volenti does not apply where the officials do not enforce the rules of
the game.

Occupier’s Liability and Volenti

Tomlinson v Congleton (2003) - Tomlinson ignored warning signs and dived into a
lake which left him tetraplegic. Tomlinson was a trespasser when he jumped into the
water, so OLA 1984 applied. Tomlinson was aware that he was not permitted to dive
in the lake. The council had introduced patrols and warning signs to stop swimming
and diving. HOL dismissed Tomlinson’s claim. Council (defendant) not liable where
the risk arose from the claimant’s own voluntary action rather than the state of the
premises. The risk was obvious so the claimant was volenti.

Evaluation of Volenti

Complete defence can be harsh.

The courts are reluctant to allow a defence of volenti.

Acting voluntarily - Some judges are of the opinion that there must be an express or
implied agreement between the parties before the defence can operate.

Morris v Murray - Whilst this case seems fair, there may be cases where the facts are
not so clear cut.

A statute has placed a limitation on the consent defence - Road Traffic Act section
149 (3)

Smolden - seems fair claimant not consented to a risk that should not have been part
of the game (collapsed scrum).

Contributory Negligence

Allows a court to apportion blame and therefore damages between the two parties.
It means that the claimant and defendant are both partly to blame for the damage
for example when a negligent driver hits someone who had stepped into the road
without looking.

It will often succeed where other defenses fail.

Section 1 (1) Law Reform Contributory Negligence Act (1945)

“Where any person suffers damage as the result partly of his own fault and partly
the fault of any other person or persons, a claim in respect of that damage shall not
be defeated by reason of fault of the person suffering the damage but the damages
recoverable in respect thereof shall be reduced to such extent as the court thinks
just and equitable having regard to the claimant’s share in the responsibility for the
damage”

This means that the claimant can still claim against the defendant but any damages
awarded will be reduced by the amount the claimant was to blame. The burden of
proof is on the defendant.

Sayers v Hallow UDC (1957) - Sayers got locked in a public toilet which was owned by
Harlow Urban District Council . She stood on the toilet roll holder to try to climb out
but was injured in the process of doing so.
Claimant’s damages were reduced by 25% for her own blameworthiness for standing
on the toilet roll holder.

Froom v Butcher (1976) - Claimant was not wearing a seat-belt when sitting in front
of the defendant’s car. He suffered injuries when he was thrown through the
windscreen during an accident.
Claimant’s damages were reduced by 20% to reflect the contribution his negligence
(not wearing a seat-belt) made to the injuries he sustained. Lord Denning stated
“Whenever there is an accident the negligent driver must bear by far the greater
share of responsibility. It was his negligence that caused the accident. It also was a
prime cause of the whole of the damage but in so far as the damage might have
been avoided or lessened by wearing a seat-belt, the injured person must bear some
share.” The share of the blame would depend on the level of injury. Lord Denning
suggested that reduction in damages should range between 15 and 25 percent.

Requirements for contributory negligence

In order for a defence of contributory negligence to succeed it must be proved that:

1) The claimant failed to take care of his own safety in a way that at least partially
caused his or her injuries.
2) The claimant failed to recognize that he/she was risking his/her own safety even
though the reasonable person would.
Badger v Ministry of Defence (2006) - The claimant had contracted lung cancer as a
result of exposure to asbestos at work and died. His widow made a claim against his
employer. The high court awarded damages but reduced them by 20 percent
because he made his condition worse by smoking even though the health risks of
smoking were widely known.

Limits on Contributory Negligence

The courts have recognize that children are less likely to recognize risky conduct than
adults.

The standard of care for a rescuer is that of the reasonable rescuer rather than that
of the reasonable person.

In an emergency situation, the courts have accepted that a person may not have the
time to take the best course of action.

Children

Gough v Thorns (1966) - Two brothers and a sister (aged 17, 10 and 13 respectively)
were waiting to cross a road. A lorry beckoned them to cross. The defendant drove
though the gap seriously injuring the 13 year old girl.
Young children cannot be held to be contributory negligent. Whilst older children
can, it was held that the girl acted in accordance with what could be reasonably be
expected of a 13 year old girl. She was not blameworthy and not contributorily
negligent.

Rescuers

Baker v TE Hopkins (1959) - The defendant had employed two men to clean a well. In
error a petrol pump was used, which discharged carbon monoxide into the well. A
doctor tried to rescue the men. All three died in the well.
The doctor was not contributory negligent, he had acted reasonably in the
circumstances.

Emergencies

Jones v Boyce (1816) - It was reasonable for the claimant to jump out of a carriage
which looked like it was about to crash, and sue for injury even though the carriage
did not crash.

Apportioning Blame

There are two factors taken into account in apportioning blame.

1) Causation: The extent to which the defendant’s own actions caused his/her own
injuries.
2) Culpability: The relative blameworthiness of the claimant and defendant for the
claimant’s injuries.

Ex Turpi Causa Non Oritur Actio

This is latin for: No action arises from a dishonourable claim.

Revill v Newbery (1996) - Newberry slept in a shed on his allotment to protect his
property at night. He fired a shotgun through a hole in the shed, shooting Revill.
Newberry invoked the doctrine of ex turpi causa.

Newberry could not rely on the doctrine of ex turpi causa as a full defence to his
liability. Revill’s damages were reduced by two thirds for contributory negligence.