Study Notes on Defences to Negligence: Volenti, Illegality, and Contributory Negligence

Overview of Negligence Defences

  • Defendants can assert defences in negligence claims to avoid liability even if all legal elements are present.

Types of Defences

  • Partial Defences: Reduce damages (e.g., contributory negligence).

  • Complete Defences: Completely negate the claim (e.g., voluntary assumption of risk and illegality).

Voluntary Assumption of Risk

  • Based on volenti non fit injuria ("no wrong to the willing").

  • Requires claimant’s consent to the risk.

  • Criticism for being outdated and often unsuccessful.

  • Types of Consent:   1. Specific harm or risk acceptance.   2. Exclusion of liability acceptance.

  • Key Cases:   - White v Blackmore: Consent failed due to lack of knowledge.   - Morris v Murray: Assessed subjective knowledge and consent.

Defence of Illegality

  • "No action may be founded on an illegal act."

  • Two principles from Gray v Thames Trains:   1. Claimants can’t recover for losses resulting from their criminal acts.   2. Claims during criminal activities may be rejected for public policy.

  • Key Cases:   - Delaney v Pickett: Illegal context doesn’t bar claims if injury didn’t result from illegality.   - Hounga v Allen: Weighed policy against claim denial for wrongdoers.

Contributory Negligence

  • A partial defence reducing damages when the claimant contributes to their injury.

  • Governed by the Law Reform (Contributory Negligence) Act 1945.

  • Requirements:   1. Non-reasonable care taken by the claimant.   2. Causative linkage to injury.   3. Apportionment of fault.

  • Notable Cases:   - Jones v Livox Quarries Ltd: Sets standard for reasonable care.   - Gough v Thorne: Determines youth and negligence.

Apportionment in the Supreme Court

  • Jackson v Murray: Highlights blameworthiness in assessing apportionment.

  • Resulted in a balanced reduction of contributory negligence at 50%.