Defences

  • Volenti non fit injura (consent)
    - “No injury is done to one who consent to the risk”.
    - Consent (aka Volenti) is a full consent .
    - If D demonstrates it successfully then C will recieve no damages.

Three elements
- The defendant must show that the claimant:
1- Knew of the precise risks involved.
2- Evcercised free choice.
3- Vouluntarily accepted the risk.
Note - S149 Road Traffic Act 1988, the defence cannot be used for road traffic accidents.

Knowledge of the risk:
- This is subjective, C must know of the risk, not that a reasonable person would have known.
- Knowledge of the risk is not the same as understanding the nature of the actual risk, C must fully understand the risk in the circumstances.

Execrised free choice
- The defence will not succeed where C has no choice but to accept the risk; they must freely accept the risk of harm.
- Smith V Bakers & Sons:
C was employed to hold a drill in posiiton while two other workers took it in turns to hit it with a hammer, next to C there was a set of workers engaged in taking stones out and putting them into a steam crane theat swung over the area where C was working. C was injured when a stone fell out of the crane and struck him on the head. Held; C was aware of the danger, but had not consented to the lack of care. He was therefore entitled to recover damages.

Voluntatily acceptance of the risk
- Where a person has a duty to act and is them injured because of the defendant’s negligence, volenti is no longer available as a defence.
- Haynes V Harwood
C, a police officer, was injured when trying to restrain a horse that had not been properly tied by D. The defence failed because C was acting under duty to preotect the public - not voluntarily.


The law reform. (Contributory Negligence) Act 1945

  • Any damages awarded to the claimant can be reduced proportionate to the level of harm that they caused themselves.

How do you work out contributory negligance?

  • 1) Deliver judgement - The trial judge delivers their judgement as if there has been no Contributory negligence. For example £100

  • 2) Establish percentage reduction - The trial judge will then assign a reduction amount. For example 25%.

  • 3) The final damages are awarded - In this case £75,000

The defence does not require D to show that the claimant owed a duty of care; just that C failed to take approiate care in this siutation.

D will need to show that C’s act or ommission help ti course the injuries suffered (causation).