Defences to a Negligence Claim

Question 1

What are the two defences to negligence?

Answer 1

• Contributory Negligence
• Consent (Volenti)

Question 2

What is contributory negligence?

Answer 2

Damages awarded to the claimant are reduced according to the level of which the claimant contributed towards their own harm

Question 3

What act governs contributory negligence?

Answer 3

The Law Reform (Contributory Negligence) Act 1945

Question 4

What was held in Sayers v Harlow Urban District Council?

Answer 4

Damages were reduced by 25% due to the claimant partially causing their own injury

Question 5

What was held in Jayes v IMI Ltd?

Answer 5

100% reduction in damages is possible; in the case, the claimant admitted fault

Question 6

What was held in O’Connel v Jackson?

Answer 6

Damages were reduced by 15% due to the moped rider not wearing a helmet

Question 7

What happened in Stinton v Stinton?

Answer 7

Damages were reduced by 1/3 after the claimant was found to have accepted a lift off of a drunk driver

Question 8

What does ‘Volenti non fit injuria’?

Answer 8

‘No injury is done to one who consents to the risk’

Question 9

What is needed for volenti to succeed as a defence?

Answer 9

1. Knowledge of the precise risk is involved
2. Free choice is exercised by the claimant
3. There is a voluntary acceptance of the risk

Question 10

Under what statute can volenti not be used as a defence?

Answer 10

Section 149 of the Road Traffic Act 1988

Question 11

What was held in Stermer v Lawson?

Answer 11

To consent the claimant must have a full understanding of the risk.
The claimant had never been shown how to ride a motorbike properly and therefore, consent could not be used as a defence

Question 12

What was held in Smith v Baker?

Answer 12

To consent, the claimant must have free choice in accepting the risk.
The claimant complained about an injury but had no choice but to go back to work. Volenti could not be used as a defence

Question 13

What was held in Haynes v Harwood?

Answer 13

There is no consent when acting under a public duty.
A police officer could not consent to an injury when doing a police duty

Question 14

What was held in Sidaway v Bethlehem and Maudsley Hospitals?

Answer 14

To consent to a medical treatment, not every risk has to be explained before valid consent is given

Question 15

What was held in ICI Ltd. v Shatwell?

Answer 15

Consent is only available when following orders and cannot be used when a claimant ignores their employer’s instructions or fails to follow statutory rules

Question 16

What was held in Wooldridge v Summer?

Answer 16

Consent is only a defence when a tort is committed.
A duty of care was owed but there was no negligence, the claim failed anyway, but volenti could not be argued