Negligence Flow Chart (5): Defences
N.B: The burden of proof is always on the defendant.
1. Did the victim consent to the injury? (Volenti)
If C consented or assumed the risk of injury, then this is a valid full defence (Shatwell)
Although this defence is possible, it is rarely successful, the judge would prefer to use
contributory negligence which is a partial defence, so it allows the claimant to recover
something.
(1) First, C needs to have the knowledge of the nature and extent of the risks of the
injury. In Dan v Hamilton they needed ‘complete knowledge’.
Being drunk does not excuse this possibility. Morris v Murray: being merry means
you can still appreciate the act was dangerous, the claimant was not blind drunk to
not accept the risk.
(2) Knowledge of the risk is not enough. C must voluntarily agree to run the risk of
injury. Knowledge alone is not consent.
Nettleship v Weston: The plaintiff must agree, expressly or impliedly, to waive any
claim for any injury that may befall him due to the lack of reasonable care by the
defendant. This demonstrates why it is so hard to prove this defence.
If it is express it will be subject to the unfair contract terms act so it must be
reasonable.
The agreement must also be voluntary. This is why it is often a dead end if an
employer tries to use it. (Smith v Charles Baker & Sons), however it was successful in
Shatwell.
Rescuers: The courts are reluctant to say that a rescuer has voluntarily assumed the risk of
injury (Baker v T.E. Hopkins).
Suicide: Suicide does not always mean that the C assumes the risk (Reeves v Commissioner
of Police of the Metropolis). If the defendant is under a duty to prevent the act of suicide
you cannot rely on this defence, or if the tortfeasor put the claimant in an unreasonable
position (Corr v IBC Vehicles).
Road Accidents: This is a statutory exception. The defendant driver of a motor vehicle
cannot rely on volenti against a claimant passenger.
- Section 149(3) of the Road Traffic Act 1988 states ‘The fact that a person so carried
has willingly accepted as his the risk of negligence on the part of the user shall not be
treated as negating any such liability of the user.’
- The defence can be used if the claimant is aware that D is driving drunk and gets in
the car anyway – Pitts v Hunt
2. Was an illegal act committed? (ex turpi non causa oritur)
This is a complete defence. This is an act of public policy, the purpose is not to protect the
defendant, but you cannot prosecute when the C was also doing the illegal act. You do not
have to plead illegality for this to apply.
N.B: The burden of proof is always on the defendant.
1. Did the victim consent to the injury? (Volenti)
If C consented or assumed the risk of injury, then this is a valid full defence (Shatwell)
Although this defence is possible, it is rarely successful, the judge would prefer to use
contributory negligence which is a partial defence, so it allows the claimant to recover
something.
(1) First, C needs to have the knowledge of the nature and extent of the risks of the
injury. In Dan v Hamilton they needed ‘complete knowledge’.
Being drunk does not excuse this possibility. Morris v Murray: being merry means
you can still appreciate the act was dangerous, the claimant was not blind drunk to
not accept the risk.
(2) Knowledge of the risk is not enough. C must voluntarily agree to run the risk of
injury. Knowledge alone is not consent.
Nettleship v Weston: The plaintiff must agree, expressly or impliedly, to waive any
claim for any injury that may befall him due to the lack of reasonable care by the
defendant. This demonstrates why it is so hard to prove this defence.
If it is express it will be subject to the unfair contract terms act so it must be
reasonable.
The agreement must also be voluntary. This is why it is often a dead end if an
employer tries to use it. (Smith v Charles Baker & Sons), however it was successful in
Shatwell.
Rescuers: The courts are reluctant to say that a rescuer has voluntarily assumed the risk of
injury (Baker v T.E. Hopkins).
Suicide: Suicide does not always mean that the C assumes the risk (Reeves v Commissioner
of Police of the Metropolis). If the defendant is under a duty to prevent the act of suicide
you cannot rely on this defence, or if the tortfeasor put the claimant in an unreasonable
position (Corr v IBC Vehicles).
Road Accidents: This is a statutory exception. The defendant driver of a motor vehicle
cannot rely on volenti against a claimant passenger.
- Section 149(3) of the Road Traffic Act 1988 states ‘The fact that a person so carried
has willingly accepted as his the risk of negligence on the part of the user shall not be
treated as negating any such liability of the user.’
- The defence can be used if the claimant is aware that D is driving drunk and gets in
the car anyway – Pitts v Hunt
2. Was an illegal act committed? (ex turpi non causa oritur)
This is a complete defence. This is an act of public policy, the purpose is not to protect the
defendant, but you cannot prosecute when the C was also doing the illegal act. You do not
have to plead illegality for this to apply.
