Tort Law Defences: Volenti, Contributory Negligence, and Ex Turpi Causa
Defences in Tort Law
General Principles
Defendants may use defences to excuse their conduct.
A successfully pleaded defence usually exonerates the defendant from liability.
Volenti non fit injuria is a complete defence, while contributory negligence is a partial defence.
Confusion between defences can reduce their effectiveness.
Volenti Non Fit Injuria
Translates to "there can be no injury to one who consents." Also known as "voluntary assumption of risk."
Principle: If the claimant consented to behavior that carries a risk of harm, the defendant is not liable.
A successful volenti defence means the defendant is not liable for any of the claimant's losses.
Courts are reluctant to allow this defence because it can be harsh, leading to no damages for the claimant.
To succeed, the defendant must prove:
The claimant knew of the risk involved.
The claimant voluntarily accepted the risk (free choice).
Requirements for volenti in a negligence action are controversial.
One view is that there must be an express or implied agreement between the parties.
Another view is that the defence can operate where the claimant encounters a danger already created by the defendant.
Volenti requires a voluntary agreement made with full knowledge of the nature and extent of the risk.
Morris v Murray (1991): The claimant accepted a ride from an obviously drunk pilot, which was considered so dangerous that he voluntarily accepted the risk of injury and waived the right to compensation.
Courts are reluctant to allow the volenti defence in cases of negligent driving, even if a passenger accepts a lift with an obviously drunk driver.
Road Traffic Act 1988 s 149(3): A person's willing acceptance of the risk of negligence on the part of the user shall not negate the user's liability.
Contributory negligence may be a relevant defence instead.
Participants in sporting events consent to the risk of injury that occurs in the ordinary performance of the sport (Condon v Basi).
Smolden v Whitworth and Nolan (1997): Volenti does not apply where officials do not enforce the rules of the game.
The agreement must be voluntary and freely entered for the defence to succeed.
Smith v Baker: If the choice is "do the job and run the risk, or have no job," the employee cannot be said to have voluntarily run the risk.
Rescuers are generally not subject to the defence of volenti (Chadwick v BTC; Baker v Hopkins).
S. 2(5) Occupier's Liability Act 1957 and s. 1(6) of OLA 1984: Occupiers owe no duty regarding risks willingly accepted by a person.
No need to establish an agreement.
Contributory Negligence
Statutory defence established by the Law Reform (Contributory Negligence) Act 1945.
Before the Act, any contribution by the claimant to their own damage would absolve the defendant of liability.
Section s. 1(1): A person's claim will not be defeated, but their damages will be reduced in proportion to their contribution to their own harm.
Contributory negligence apportions liability according to the claimant's responsibility.
Davis v Swan Motor: Damages were reduced by 1/5th where the claimant was injured but had been standing in a dangerous place.
Sayers v Harlow UDC (1957): The claimant got locked in a public toilet, stood on the toilet roll holder to climb out, and was injured. Damages were reduced by 25%.
Froom v Butcher (1976): Damages were reduced by 20% to reflect the contribution of the claimant's negligence (not wearing a seatbelt) to the injuries sustained.
Apportioning blame can be difficult, leading to questions about fairness and inconsistencies.
To succeed with a defence of contributory negligence, it must be proved that:
The claimant failed to take care of their own safety, which partially caused their injuries.
The claimant failed to recognize that they were risking their own safety, even though a reasonable person would have.
Badger v Ministry of Defence (2006): The claimant contracted lung cancer from asbestos exposure at work but had his damages reduced by 20% because he worsened his condition by smoking.
The standard of care is that of the reasonable man, but courts recognize that children are less able to recognize risky conduct than adults.
Mullins v Richards: Aligns with the rules on negligence.
Gough (an infant) v Thorns: Young children cannot be held to be contributorily negligent if they acted in accordance with what could be reasonably expected of their age.
The standard of care for a rescuer is that of the reasonable rescuer rather than the reasonable person.
Baker v TE Hopkins (1959): A doctor tried to rescue men in a well using a petrol pump and was not contributorily negligent because he acted reasonably in the circumstances.
Jones v Boyce (1816): It was reasonable for the claimant to jump out of a carriage about to crash and sue for injury, even though the carriage did not crash.
Ex Turpi Causa Non Oritur Actio
Latin for "no action arises from a dishonourable claim." Often referred to as "ex turpi."
There is no liability in tort for injuries sustained in an unlawful course of action or immoral act.
A successful application of ex turpi causa acts as a complete bar to recovery.
Often referred to as the illegality defence.
Such claims would be against public policy.
The public policy factor often cited is that it is wrong to allow a criminal to profit from his crime.
Some argue that it should have no application in modern tort law and that an apportionment approach would be preferable because the claimant is seeking compensation for a loss rather than a gain.